The paradox of judicial reforms in Latin America

The "Forgotten Relationship" Updated and Reconsidered Alan McPherson (bio) Russell C. Crandall . The United States and Latin America after the Cold War. New York: Cambridge University Press, 2008. xiv + 260 pp. Figures, map, and index. $85.00 (cloth); $24.99 (paper). In December 1989, when George H. W. Bush sent 20,000 U.S. troops into Panama to overthrow General Manuel Noriega, few noticed the timing, barely more than a month after the Berlin Wall fell. Most international bodies condemned the intervention as illegal; and, while polls suggested that Panamanians were grateful for being rid of the cruel strongman, many in Latin America and the United States saw in the invasion a continuation of Cold War–era U.S. hegemony. As Russell Crandall reminds us, however, Bush took down his erstwhile informer not because he was a communist or flirted with any, but because he was a drug- and arms-dealer, not to mention a growing embarrassment as a suppressor of democracy. Panama in 1989 may just come to symbolize a segue from the Cold War to the post–Cold War era in U.S.–Latin American relations. Crandall's study can almost be called the first historical monograph on its topic. Despite its recent focus, it is history because it is the first attempt to analyze the Bush-Clinton-Bush policies toward Latin America as an era separate and distinct from the Cold War. Yet it is only almost history because the sources are simply not there yet for a thorough investigation. Despite that limitation, the book is a welcome addition to the literature as an in-depth identification of salient themes in a bilateral relationship that suffered relative neglect in the 1990s and 2000s. Looking back, that neglect seems understandable—events in Iraq, Bosnia, Somalia, and South Asia were far more compelling in the 1990s; and since 2001 global terrorism has monopolized much of the attention and resources of U.S. policymakers. But in the early 1990s it seemed likely that Latin America would maintain some prominence in the U.S. worldview. The U.S. commitment to wars in Central America ended, but democracy was spreading in the hemisphere. The United States and Mexico signed the North American Free Trade Agreement (NAFTA), and the "Washington Consensus" on neoliberalism seemed [End Page 426] as if it would soon make of the region a major ally of the United States. In keeping with this optimism, much of the early 1990s literature was forward looking. Scholars sought to put the Cold War behind them and wrote about the future of inter-American affairs, it would seem, as much as about the past.1 Others delved into distinct topics such as immigration, human rights, religion, judicial reform, and trade.2 Former diplomat Robert Pastor tackled the 1990s as a whole, but within a larger narrative of U.S.–Latin American relations.3 Perhaps the only other recent look back that focuses uniquely on the post–Cold War years of this relationship is David Scott Palmer's U.S. Relations with Latin America during the Clinton Years: Opportunities Lost or Opportunities Squandered? (2006). It is a short overview of a narrower time frame than Crandall's—1993 to 2001 rather than 1989 to 2007. Palmer's study faced the same challenge of relying almost uniquely on press accounts. Crandall's study aims to identify the trends of the post-1989 period that distinguish it from the Cold War, to see whether "Big Stick" diplomacy of an overwhelming power concerned primarily with security issues (read: anti-communism) was still relevant. Not surprisingly, he finds that a much more complex set of themes has framed the relationship in the last two decades. Paradoxically, in a unipolar world, U.S. policy toward Latin America is no longer singular but has fractured into various interests: democracy; trade; drugs; the environment; human rights; and, to be sure, security. The organization of the book likewise reflects the lack of a meta-narrative. The author follows his explanation of concepts in the first chapter with only one brief chronological chapter. The rest of the book then assigns each chapter a theme (democracy, security, economics) and case studies (financial meltdowns, Colombia...

Introduction 1. Democracy and the Rule of Law: A Theoretical Framework 2. The (un) Rule of Law in Latin America: A Weak Arena of Democratic Consolidation 3. Judicial Reforms in Latin America: Towards More Independent, Efficient and Impartial Judiciaries in the Region 4. Assessing Judicial Independence in Latin America during the 1990's 5. The Judiciary's Capacity to Check the Executive in Latin America during the 1990s 6. The Judiciary's Capacity to Bring the Military to Account in Latin America 7. Judicial Systems' Ability to Protect Human Rights in the New Democracies of Latin America 8. Corruption, Inefficiency and Violence in Latin American Court Systems 9. Conclusions

The papers in this volume were presented at the World Bank Conference on judicial reform in Latin America and the Caribbean (LAC), held on June 13-14, 1994, in Washington, D.C. This conference, part of a series organized by the LAC Technical Department Public Sector Modernization Division, was intended to promote an exchange of views among researchers, practictioners, and government officials in the area of judicial reform. Sustainable development is predicated on a judiciary that can enforce the rule of law and foster a legal and judicial environment that encourages trade, financing, and investment. The resolution of disputes must be swift and fait. Yet the judicial systems in Latin Amercia and the Caribbean are plagued by case delays and backlogs. Court decisions are neither transparent nor predictable, and public confidence in the judicial system is weak. The judicial reform conference identified strategies for improving the administration of justice, with a focus on these themes: 1) judicial reform and its role in economic development; 2) the economic costs and benefits of judicial reform; 3) procedural reforms; 4) administrative dispute resolution mechanisms; 5) access to justice; 6) the legal profession; and 7) judicial training and legal education. This report of the conference proceedings discusses the judicial reform efforts of more than twenty countries in both Latin America and the Caribbean and the industrialized world. It is hoped that this volume will help judiciaries in their efforts to improve their administration of justice.

This volume analyzes the judicial reform processes funded by international donor organizations in Latin America. As billions of dollars are spent on judicial reform, it is pertinent to ask about the fate of these projects. The authors examine the way in which international organizations rationalize and prioritize their reform proposals and agenda in Latin America; how reform agendas are implemented and followed up (or not); how international donor organizations relate to national governments and civil society, and to each other; and what factors account for the successes and failures of their reform initiatives. The book also addresses the question of the connection between rule of law reform and broader processes of regime consolidation and state building, from both a political and a social perspective.

This paper examines the nature and pace of judicial reforms in Latin America. Part I describes, in general terms, the current state of the courts throughout the region. The economic analysis presented in this section explains the impact of the judiciary on democracy and economic development. Part II analyses how factors related to corruption within the courts combine to increase the political institutional inertia observed during judicial reforms. This part takes into account both the expected costs and expected benefits of judicial reform, as perceived by government officials in general and judges in particular. Part II also addresses the proliferation of corruption in terms of the expected costs and benefits of engaging in corrupt activities.

While there exists a consensus on the centrality of the rule of law both for economic development and democratic consolidation, the political economy of legal and judicial reform remains largely under-theorized. The review essay underscores the tensions and trade-offs between the different strategies and objectives of judicial reform in Latin America. Contrasting the experiences of Argentina and Brazil, it high- lights the delicate balance between independence and accountability. It also assesses the role of donor institutions, and in particular the multilateral development banks, in promoting judicial reform. It argues for a more realistic approach to judicial governance, focusing on feasible reforms.

Judicial reform has been a main effort in the framework of Latin American countries’ democratisation processes. This chapter focuses on the transformations occurred in the case of Chile and, particularly, in the process of implementation of the Criminal Procedure Reform. It contains four parts. The first part offers an overview of the debate following the rule of law legal movement that started in the late 1980s, involving the promotion of judicial reform in Latin America. Part two offers a review of the Chilean context and the background to the Criminal Procedure Reform, from both a criminal policy and a judiciary reform perspective. The third part describes the main features of both the old and the new criminal processes, highlighting their differences. Part four discusses the concept of trust in law and outlines the main issues to be taken into consideration while assessing the effects that judicial reforms have on the general population.

Policing and Crime Malcolm Deas (bio) Criminality, Public Security, and the Challenge to Democracy in Latin America. Edited by Marcelo Bergman and Laurence Whitehead. Notre Dame, IN: University of Notre Dame Press, 2009. Pp. xiv + 344. $40.00 paper. ISBN: 9780268022136. The Economics of Crime: Lessons for and from Latin America. Edited by Rafael Di Tella, Sebastian Galiani, and Ernesto Schargrodsky. Chicago: University of Chicago Press, 2010. Pp. ix + 472. $110.00 cloth. ISBN: 9780226153742. No Place to Hide: Gang, State, and Clandestine Violence in El Salvador. By Laura Pedraza Fariña, Spring Miller, and James L. Cavallaro. Cambridge, MA: International Human Rights Clinic, Human Rights Program, Harvard Law School; distributed by Harvard University Press, 2010. Pp. xii + 224. $14.95 paper. ISBN: 9780979639531. Policing Insecurity: Police Reform, Security, and Human Rights in Latin America. Edited by Niels Uildriks. Lanham, MD: Lexington Books, 2009. Pp. ix + 262. $70.00 cloth. ISBN: 9780739132289. Policing Democracy: Overcoming Obstacles to Citizen Security in Latin America. By Mark Ungar. Washington, DC: Woodrow Wilson Center Press; Baltimore, MD: Johns Hopkins University Press, 2011. Pp. 336. $60.00 cloth. $30.00 paper. ISBN: 9780801898020. The themes of policing, crime, and punishment have attracted relatively few scholars as far as Latin America is concerned. Violence is quite another matter, of course, and conflict studies flourish. Crime and punishment have for some time attracted the attention of social historians under the varied inspirations of the Warwick school of E. P. Thompson and Douglas Hay; of Michel Foucault; and of subaltern, postcolonial, and gender theories. Those interested in narcotics and their consequences have produced a vast literature. Legal systems have also received some extralegal academic attention, from the old formal analysis of historia del derecho and derecho indiano to burgeoning studies of democratization and human rights, and new theories of transitional and retributive justice inspired by postauthoritarian “closing the books.” Policing comes in a very poor last. All in all, scholarship is thin and patchy in this area, and it is worth speculating as to why. Policing is a depressing subject in most places, particularly when the focus is contemporary. Police forces are inevitably the most liable of all state institutions to be inefficient, corrupt, and abusive. Few, if any, police forces welcome study; few [End Page 201] have the capacity to study themselves. They are commonly hardened to criticism and expect little understanding from outsiders: the feeling is that “no one loves us except our mothers,” and perhaps not even them. Much essential information is inaccessible, and looking for it can be dangerous. Anyone familiar with criminology also knows how difficult it is, even in other areas of the world that have much better statistics, to interpret data in this field to reach sound practical conclusions. In short, policing is a hard row to hoe, as the books under review show in their different ways. Some scholarly difficulties are perhaps particular to Latin America, or to the study of Latin America. In all the works examined—even in The Economics of Crime, which promises some lessons for Latin America from elsewhere—there is scant reference to the experiences of other parts of the world. For example, none of the works mentions the outstanding series of historical studies of British and European policing by Clive Emsley, which, if used, would at least show that Latin America’s policing problems are not unique. Another factor affecting scholarship is the feebleness of the region’s legal traditions in producing a usable empirical criminology. As Elvira María Restrepo states, “very little is actually known about the real quantity and nature of criminality in Colombia, with the possible exception of homicide and car theft” (Bergman and Whitehead, 181). Long influenced by Cesare Lombroso and his successors, or by more recent musings on crime as a product of law, lawyers have preferred to focus on the philosophical variants of the discipline. Neither school has much practical application, although both have contributed to strikingly indulgent policies in some circles. For example, the influence of Enrico Ferri in Colombia—felt there long before he taught his famous disciple Jorge Eliécer Gaitán—bears some responsibility for light sentencing: the penal code of 1899 fixed...

<p>Desde la década de 1990 América Latina presenció importantes transformaciones del sistema judicial, acompañados del fortalecimiento del Estado de derecho, temas que desde hace más de un lustro son materia de análisis por parte de investigadores sociales, sin embargo, muchas de estas investigaciones desconocen los antecedentes históricos y políticos de estas reformas. Desde un análisis geográfico que permite establecer un marco comparativo regional y retomando los antecedentes históricos que desde la década de 1960 se presentaron alrededor del los sistemas jurídicos, el texto presenta los principales cambios de la reforma judicial en Colombia y América Latina.</p>

While its very persistence in the face of multifaceted crises is no small achievement, Latin American democracy in the last two decades has been criticized as incomplete, unconsolidated, and lacking in the rule of law.1 The region's legal systems have played a large part in this disillusionment for condoning corruption, favoritism, and the continuation of repression. O'Donnell captures this failure of universalistic democratic citizenship with his metaphor of areas.2 One aspect of these brown areas is the inability, to different degrees, of the justice systems in Brazil and Argentina to protect certain basic rights, as evidenced by the failure of their courts to punish the large number of police homicides that continue to be committed. The problem is serious. In 1992 alone the Sao Paulo police killed more people than the last military dictatorship did in the entire country in all its years of rule.3 Yet a policeman who kills someone in the course of routine policing in Sao Paulo has a 94 percent chance of escaping judicial sanction. Moreover, the complete answer may not be found in improving the organizational capacities of judicial institutions. Tens of millions of dollars have been spent on judicial reform programs to address the perceived weakness of judiciaries all over Latin America. Yet the consensus is that the monies spent on judicial reform have not led to a significant improvement in judicial services, and rights violations continue despite the proliferation of legal norms that purport to outlaw them.4 This paradox is made evident in the judicial response to state killings in So Paulo and Buenos Aires: while neither of the two legal systems is very effective, the apparently stronger institutions in the former coexist with a higher degree of impunity for rights violators. One of the arguments that have been proposed to explain democratic deficiencies in Latin America is that informal institutions contradict formal democratic ones.5 But despite valuable insights, insufficient attention has been paid both to the definition of informal institutions and to empirical analyses of their effect. This article offers a precise definition of informal institutions and evaluates one informal institution in an area vital to democracy, the enforcement of civil rights, and its effect on the judiciaries in Sao Paulo and Buenos Aires. The data are drawn from a sample of cases taken from the courts of So Paulo and Buenos Aires involving police homi

That the financial sector should be liberalized was the orthodox view in the mid-1970s, during a pendulum swing toward reliance on the free market. In the early 1980s, the pendulum swung back to the left, based partly on evidence - especially from Latin America - that overly rapid reform had real costs, and partly on an increased appreciation of financial market failure. Blind adherence to free market principles was no longer appropriate. Now a counter-counterrevolution is in sight, with some swing back toward the view that the market makes a mess of it, but the government makes it even worse. The authors agree that market-oriented financial systems appear to do a better job than systems with extensive government involvement, but contend that the assumption that perfect competition will solve all problems in finance - especially in banking - can be dangerous. Information problems, implicit or explicit government guarantees associated with the payments system make banks unique. Governments implicitly recognize banking's uniqueness - few allow just anyone to enter banking - but public pronouncements and observers' recommendations often favor a move to more competition. Perfect competition, however, is optimal under the assumption, among others, of no government guarantee. In fact, most governments differ only in how explicit they are about their deposit insurance schemes. The financial reforms most likely to succeed are those that give banks an incentive to engage in safe and sound banking. When excessive competition is allowed, the charter value of banking diminishes to the point that it is no longer profitable for bankers to behave prudently. A consideration of finance's role, and a look at how reforming economies have fared, suggest also that gradual reform is often to be preferred in this domain. Deregulation of credit markets and interest rates can be counterproductive in unstable macroeconomic conditions and when banks are unsophisticated or have weak balance sheets. And changes in the charter value may evolve only slowly after reform. Faster progress and greater efforts should be made, however, in bank supervision and regulation and in institutional development, including accounting, auditing, legal and judicial reform, and training (of bankers and other finance professionals). In sum, many economies would benefit from less government intervention in financial markets, but the prescription should not be abrupt or total government withdrawal from the financial sector. Rather than intervening heavily in credit allocation decisions, governments should focus on doing what only they can do: providing an enabling environment for the private financial and nonfinancial sectors, and ensuring that financial operations are safe and sound.

The criminal justice systems in Latin America have experienced profound transformations since the 1980s. But what has been the impact of criminal justice reforms in terms of access to justice and human rights adjudication? Although there are studies looking into the advances and failures of judicial reforms in general, systematic empirical research that helps us assess how new institutions and legal rights are actually working to improve individual criminal accountability for human rights violations is still scarce. In this paper, through a mixed-method approach, I explore the impact of reforms on access to justice for victims of human rights violations.

Toward a sociology of the global rule of law field: neoliberalism, neoconstitutionalism, and the contest over judicial reform in Latin America

Abstract: Ten years of debates over democratic backsliding have failed to produce many examples of independent institutions thwarting authoritarian attempts on democracy. Yet Latin American courts seem to be countering this larger trend. The three largest countries in the region—Brazil, Mexico, and Colombia—have produced robust institutions able to check leaders with authoritarian tendencies, with high courts playing a fundamental role. In a dramatic succession of recent cases, courts in these three countries have been innovative, acted with a high degree of independence, and appear legitimately interested in defending democratic norms. All of this is profoundly surprising. There is little to no track record of independent Latin American judiciaries that stand in the way of authoritarian governments. Closer study of these three countries is therefore critical for scholars and practitioners, who are otherwise locked in debates over the importance of judicial review in preserving democracy. After dozens of judicial reform failures since the 1990s, we may be observing some overdue success. It appears that 1990s judicial reforms are making a comeback in Latin America.

An intensive global search is on for the "rule of law," the holy grail of good governance, which has led to a dramatic increase in judicial reform activities in developing countries. Very little attention, however, has been paid to the widening gap between theory and practice, or to the ongoing disconnect between stated project goals and actual funded activities. Beyond Common Knowledge examines the standard methods of legal and judicial reform. Taking stock of international experience in legal and judicial reform in Latin America, Europe, India, and China, this volume answers key questions in the judicial reform debate: What are the common assumptions about the role of the courts in improving economic growth and democratic politics? Do we expect too much from the formal legal system? Is investing in judicial reform projects a good strategy for getting at the problems of governance that beset many developing countries? If not, what are we missing?