The pursuit of efficiency and the colombian criminal justice system

Elvira María Restrepo

Research output: Chapter in Book/Report/Conference proceedingChapter


Colombia is different from most countries in Latin America in that the most recent criminal reforms did not originate from a transition of a dictatorial regime to a democratic one nor from a sudden uprise of crime. It is also singular in that it has experienced the longest irregular war in the whole continent (almost fift y years), almost four decades of drug trafficking, and unparalleled levels of hard crime, such as homicides and kidnapping. Parallel to the country's high criminality and partly as a response to it, Colombia has had a striking record as far as the number of substantial reforms to the system of criminal justice is concerned. In less than four decades, from 1971 to the present, there have been reforms in almost every area of the criminal system, which itself has been transformed from an inquisitorial to an adversarial system in two different periods.1 The evidence shows that the executive ordered the above-mentioned reforms, which represented important or substantial changes to the system of criminal justice, through exceptional legislation until the passage of the 1991 constitution.2 Many analysts have shown that excessive reformism has contributed greatly to the enormous judicial backlog because of the inefficiency that it generates.3 Over the years, reformism clearly has contributed to excessive judicialization and to the criminalization of activities that are best addressed beyond the scope of the system of justice. Similarly, an excess of new laws and reforms also indirectly threatens impartiality since it makes legal procedures unpredictable, and the adjudication of cases can become subject to the personal criteria of presiding prosecutors or judges. Based on existing empirical data, I argue that the 1991 judicial reform in Colombia made the criminal system more efficient, that is, cases are closed in shorter periods of time. Thus, one can claim that the rule of law was strengthened. But I also argue that many of the gains in efficiency may be the result of arbitrary practices, particularly the indiscriminate use of preventative detention. This contradicts a fundamental underpinning of democracy. Since existing data limitations inhibit deeper analysis of the true extent of impunity under the new system, it remains unclear whether increasing efficiency when the rule of law is weak (as it is in most countries in the region) reduces or deters crime. Impartial adjudication-which, ultimately, is what sustains judicial system's legitimacy-is clearly still not in place. In the first section, I discuss briefly the main characteristics of the 1991 criminal reforms, claiming that they increased the efficiency of the system but also introduced greater arbitrariness. In the second section, I analyze the main characteristics of the reforms to the criminal system comparing the performance of the new and old systems (judicial backlog, length of proceedings, and levels of impunity). In the third section, I ask whether the new system has increased or decreased arbitrariness, focusing on four indicators for which there is data: The duration of pretrial detention among the national prison population; two different indicators on the percentage of pretrial detentions that can be considered arbitrary; and the number of tort cases against the FGN for unfair or arbitrary detention. In the fourth section, I argue that the lack of credibility of the system of justice (which is clearly the result of poor performance and perceived arbitrariness) must be discussed in the broader context of a fear of accusing and prosecuting in Colombia. Judges have reasons to be fearful, and this fear affects their impartiality; citizens, in turn, experience a high level of fear, which often inhibits their cooperation with the system. The precariousness of the Colombian state and the ongoing armed conflict fueled by illegal drug profits means that the causes of fear are still present, and in many parts of the country alternative "systems of justice" coexist with the official judicial system.

Original languageEnglish (US)
Title of host publicationCriminality, Public Security, and the Challenge to Democracy in Latin America
PublisherUniversity of Notre Dame Press
Number of pages30
ISBN (Print)0268022135, 9780268022136
StatePublished - Dec 1 2009

ASJC Scopus subject areas

  • Social Sciences(all)


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