5. Myths and Realities of Juvenile Justice in Latin America

Abstract

Latin America has been an almost forgotten region in the academic literature in English on comparative juvenile justice systems. A first goal of this chapter is providing an overview on the history of Latin American juvenile justice systems until today. The evolution of Latin American juvenile justice presents two crucial moments: 1) its creation at the beginning of the twentieth century with the importation of the American model of juvenile courts, and 2) its transformation in the past twenty-five years with the incorporation of international human rights law into domestic law. While in the first period, Latin American laws conceived children and adolescents as subjects to be saved and treated, in the second period the laws consider children and adolescents as rights bearers who have the same due process rights as adults and can be held criminally responsible though subjected to special regulations. Despite these differences, the two periods have actually agreed on their stated goals of removing children and adolescents from criminal law and responding to their deviant behavior with rehabilitative measures. The second goal of this chapter is assessing whether the goal of juvenile justice of removing children and adolescents from criminal law has actually been put into action. This type of empirical assessment of Latin American juvenile justice systems is missing even in the Portuguese and Spanish speaking literatures. This chapter shows that throughout Latin America children and adolescents in conflict with the law are confined at substantially lower rates than adults. On the basis of these findings, without denying other problems these systems present, we argue that Latin American juvenile justice systems have advanced their stated goal of removing substantial numbers of children and adolescents from criminal law. The third goal of this chapter is to start to assess the recent wave of juvenile justice reforms in Latin America by taking the Chilean reform as a case study. In the past twenty-five years, Latin American juvenile justice laws have undergone their deepest transformation since the creation of juvenile justice systems in the first half of the twentieth century. These reforms promised to bring more due process protections for juveniles and to use confinement only exceptionally and as a last resort. However, there have been almost no empirical assessments of the outcomes of these reforms, even in the Portuguese and Spanish speaking literatures. Even if Latin American juvenile justice systems remove a substantial number of children and adolescents from criminal law, have these reforms made juvenile justice systems remove more or fewer children and adolescents from criminal law? By taking the Chilean law as a case study, this chapter shows that while the Chilean reform has brought more due process protections for deviant youth by reducing the percentage of juveniles in pretrial detention, it has likely substantially increased the absolute and relative levels of juvenile confinement.