Variables Associated with Probation Outcomes in Venezuela

• Author: Christopher Birkbeck
• Pages: 348-367

348

CRIME, DELINQUENCY AND JUSTICE

INTRODUCTION

Judged from a historical perspective,

probation came late to Venezuela. While it

was broadly adopted in the early 1900s, not

only in common law countries, but also in

many parts of Latin America (Canestri 1981),

this form of penal control did not appear in

Venezuela unti1 1980, following the passage

of the Law on Adjudication and Conditional

Suspension of Imprisonment (LACSI)

(Venezuela 1979).

Prior to that date, imprisonment was the

norm, both for offenders undergoing

adjudication and for those who had been

sentenced. The LACSI signalled recognition

that alternative forms of control could be

used for suspects and offenders, and a

grudging acknowledgement by the political

system that prison conditions were less than

acceptable (Bravo Dávila 1981). As its name

implies, this law was designed to reduce the

use of imprisonment during the two main

stages of the criminal justice process. First,

in certain cases the accused could apply for

pre-trial release while adjudication

proceeded3 thereby diminishing the

critically high numbers in preventive

detention. Second, some offenders could

apply to have their prison sentences changed

to probation.

Unlike the common law criminal justice

systems from which the LACSI took this

second initiative, probation in Venezuela

was not designed as a sentencing alternative

for judges. Instead, it was a type of

supervision that offenders could apply for

Variables

Associated

With Probation

Outcomes in

Venezuela¹

Christopher Birkbeck2

Sixteen

349

VARIABLES ASSOCIATED WITH PROBATION OUTCOMES IN VENEZUELA

once they had been convicted. Before 1979, convicted offenders could avoid at

least part of their prison sentences through early release mechanisms outlined in

the Penitentiary Law of 1961 (Venezuela 1961), which still exist today. Work release

is available to offenders who have completed a quarter of their prison sentence;

open prison for offenders who have completed a third of their sentence; and

conditional release for offenders who have completed two thirds of their sentence

(Venezuela 2000a). By contrast, the LACSI allowed offenders to apply for probation

as soon as they had been sentenced and only required them to be in prison for as

long as it took the court to make a decision4. Thus, probation made further inroads

into the dominance of imprisonment in Venezuelan sentencing policy.

Of the two innovations introduced in 1979, pre-trial release was undoubtedly

the more radical, for it was the opening move in the assault on preventive

detention. The latter is widely used in Latin America and has occasioned much

criticism (Carranza 1983) that has been echoed in Venezuela by lawyers,

criminologists and human rights organisations (Human Rights Watch 1997). In

the 23 years since the LACSI was enacted, the fortune of probation has been

closely linked to that of pre-trial release in the political battles over the role of

imprisonment in penal policy.

Given the lengthy tradition of classically oriented penal law and inquisitorial

criminal procedure in Venezuela (of which imprisonment is an integral

component), the use of alternative forms of supervision has generated social

anxiety and criticism. That anxiety has been reflected, among other things, in

the restrictions that were gradually placed on the use of probation. Under the

LACSI, probation was available to first time offenders, convicted of crimes for

which the maximum prison sentence was eight years, and who agreed to abide

by the conditions imposed by the judge (at the recommendation of probation

officers). Since then, the second requirement has been modified. The Anti-

Corruption Law of 1982 (Venezuela 1982) only allows probation for corruption

offences with maximum prison sentences no greater than two years, and the

Drug Law of 1993 prohibits probation for more serious offences, such as production,

trafficking or money laundering (Venezuela 1993a).

The LACSI was also reformed in 1993, producing somewhat contradictory

effects on probation (Venezuela 1993b). On the one hand, the scope for granting

this measure was widened because the basis for defining the sentences under

which probation could be granted was changed from the maximum applicable

prison sentence to the prison sentence imposed. On the other, some restrictions on

probation were introduced, because offenders convicted of rape, aggravated theft,

aggravated robbery and kidnapping were expressly denied eligibility.

The 1993 reform also streamlined the procedure for granting pre- trial release

and placed the beneficiaries of this measure under the direct supervision of the

court, rather than probation officers. This was a further relaxation of the rules

regarding pre-trial release, but the trend toward liberalisation reached its peak in