Colombia’s Harsh Criminal Penalties for Corruption Are an Illusion. Here’s How To Fix That.

Whenever a new corruption scandal comes to light, many politicians instinctively react with strong punitive rhetoric, and this rhetoric often translates into action, usually in the form of amendments to criminal codes that make penalties for corruption offenses harsher. Latin America supplies plenty of examples of this (see here, here, here, and here.) Yet despite this emphasis on punishment, many corrupt politicians avoid justice altogether, and in the rare cases where they are found guilty, many end up doing only short stints in comfortable detention centers. Consider, for example, Colombia, which has unusually good public data on corruption convictions and sentences thanks to the work by the Anticorruption Observatory of the Secretary for Transparency. According to this data, between 2008 and 2017, criminal courts in Colombia have convicted 2,178 individual defendants for corruption (51.2% for bribery, 23% for embezzlement, and the remainder for other corruption-related offenses), but only about one-quarter of these convicted defendants actually went to prison. Approximately half of these defendants received suspended sentences, while another quarter were sentenced to house arrest. And of those who did go to prison, the time served was only about 22 months on average, much lower than the penalties on the books for corruption offenses. No wonder many Colombians believe the criminal justice system is too lenient.

The reason that actual Colombian sentences end up being so light, despite the penalties on the books being so heavy, is that Colombian law includes a set of provisions that allow for a variety of sentence reductions if certain conditions are met. For example, a defendant who accepts guilt can receive a 50% reduction in his prison term. Inmates may also reduce their prison term through work, with very generous terms: An inmate reduces his sentence by one day for every two days of ordinary work (8 hours of work per day), or for every four hours of work as a teacher. An inmate can also reduce his sentence through in-prison education, with  six hours of study translating into one day of sentence reduction. Furthermore, once an inmate has served 60% of his sentence, he can petition for release for good behavior. 

This excessive leniency needs to be addressed, not only in corruption cases but in all cases. Specifically, Colombia should adopt the following revisions to its criminal laws:

  • First, the maximum permissible sentence reduction that a defendant may receive for simply admitting guilt should be 25%, not 50%. Some reduction is appropriate, mainly because it makes the system operate more efficiently, but a 50% reduction for admission of guilt undermines the overall credibility of the system. (That said, prosecutors should still retain the discretion to grant larger reductions, including immunity, when doing so is necessary to induce defendants to give evidence against the “big fish,” and thereby dismantle more sophisticated organized crime and corruption networks.)
  • Second, in cases of embezzlement or similar misappropriation of state assets, eligibility for a sentence reduction should be conditioned on the defendant returning the stolen assets to the state, or paying back the value of the amount misappropriated. Corruption defendants should also be required to make reparations for the collateral harm of their unlawful activities.
  • Third, in corruption cases, a court should be permitted to suspend the sentence only for cases of petty corruption, in which the sentence that would be imposed is lower than one year of imprisonment. For more serious corruption offenses, where the prison term is above one year, the judge should not have the discretion to issue a suspended sentence.
  • Fourth, benefits for work and study in prison should be either eliminated or, if that might be going too far, be substantially reduced. While work and study in prison may be a desirable part of the inmate resocialization process, offering such dramatic sentence reductions for those activities ends up undermining the overall strength and credibility of the system. 
  • Finally, and more generally, the system should be dramatically simplified, so that the sentences actually imposed correspond more closely to the sentences laid out in the penal code. The transparency, and thus the credibility, of the system would be stronger if the consequences of committing various crimes could be anticipated without having to make extensive modifications based on a range of factors. If eliminating the various possible sentence reductions would lead to sentences that are too harsh, the right response is to reduce the severity of the sentences across the board.

Few things in a democracy make people angrier than observing that some citizens seem to be above the law, and can use their entrusted power for private gain without facing serious consequences. Adopting the reforms suggested above would substantially improve the credibility of the Colombian criminal justice system, sending a message of real commitment to fight corruption by eliminating the hidden loopholes that hamper the deterrent effects of the law.

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