Penitentiary Treatment: Its Perspectives in Argentina – Legal and Criminological Analysis

Abstract

Argentine legislation (Law 24,660 and its amendments) regulates penitentiary treatment both as a stage of the progressive regime and as the activity of prison administration itself, made up of specific programs, whose objective is the social reinsertion of the convicted person. This chapter proposes, on the one hand, to analyse the issue of treatment from a regulatory perspective, outlining its distinctive notes, while also describing and problematizing the criminological aspects that characterize it. In this way, this integration (legal and criminological analysis) allows for accounting for those key elements related to carrying out treatment in prison facilities in Argentina.

1. Introduction

Everyone knows the diverse critiques – that come from different conceptions of Criminology – of the objective of resocialization. However, and despite the seriousness of those objections, it is clear that the State must offer some sort of treatment, oriented toward achieving those objectives, to a person who is deprived of their freedom (in fulfillment of a sentence).

It is not lost on us that, those critiques of attempts to achieve resocialization also carry a certain mistrust of the idea of treatment. Rivera Beiras has acutely raised the issue in the following terms: “treatment has… a special role in the dialectical struggle between those who support the current form of intervention and those who criticize it. The former, usually those with some responsibility for its implementation, exalt the purpose and brag about programs and their supposed results. The latter oppose it based on the inconsistencies of the legal text itself…, the role of treatment as a disciplinary instrument…, the ideological connotations of intervention…, even including its contradictions and irregularities… or its contribution to the ‘devaluation’ of fundamental rights” [1].

However, behind this debate lies a confusion of terms: the possible offer of treatment programs is seen as synonymous with the so-called ideology of treatment, a theoretical model that – erroneously (as we will see below) – reduced the concept to therapeutic interventions derived from behaviorism, according to which logic, the author of the crime appeared as a negative and dysfunctional element for the social system and therapy was thus the only means for achieving the miracle of rehabilitation. Francisco Bueno Arús has correctly differentiated the two notions: “A lack of resources leads to supplanting treatment with the ‘ideology of treatment’, which distorts the realist terms in which the offer to the prisoner of means that would allow them to overcome their socialization conflicts and carry out a future ‘life without crime’ and, in fact, replaces it with unsubstantiated faith in the program of activities aimed at overcoming values, which can oscillate between a contentless utopia and the illicit invasion of a person’s intimacy” [2].

But then, what is the treatment?

Beyond the ambiguity of that expression, there is a certain consensus in which it is understood as a set of activities that should be offered to the incarcerated person, which aim to achieve the objectives laid out by Argentine criminal law. Those objectives include that the convicted person acquire the capacity to understand and respect the law, thus ensuring their adequate social reinsertion (Article 1, Law 24,660).

Undoubtedly, this concept instead has an instrumental value, since it does not reflect the existing dispute (identified above) regarding the content of activities constituting treatment. Cervelló Donderis [3] has described the evolution of the content guiding those activities emphasizing that, in their origins, they were of a clinical nature, “because they sought the pathological cure of the delinquent.” Not long ago, Spanish authors even affirmed that assertion. For example, García Valdés [4] argued that the essence of treatment is found in the intervention of behavioral sciences on personality, categorizing all other activities as “marginal assistance”. On the other hand, currently – and we agree with this assessment – behaviorism’s monopolistic tendency is losing ground. According to Rodríguez Núñez [5], those therapeutic methods, while still having a significant value, are no longer the only activities taken into account.

There are different factors that can explain the abandonment of this exclusivity. However, there is one factor that should not be underestimated: the exhaustion of the behavioral theoretical model on which the training of professionals (psychologists) who provide services in prisons was (and, in some cases, still is) based. Roberto Bergalli [6] has made a lucid critique of this aspect: “Evidence of this [referring to the objectives of ‘discipline and order’ as the only goal of prison policy] can also be found in the decisions adopted by the Administration regarding the use of certain techniques applied to what is known as ‘treatment’ and that is translated into the type of training given to officials or that they seek to emphasize through the activity of experts who make up the teams observing prisoners’ behavior…”. He then immediately remarks that “it is worth asking in virtue of what principle is a framework of interventions legitimized that is designed to obtain the mere adhesion to behaviors through a system of ‘prizes’ from the institutional authority or whoever represents it. Those prizes, that are granted on a legal basis, however, respond to psychological techniques of purely provoked reflexes that, obviously, have a limited effect over time, aimed at obtaining an immediate result, conditioned to a predetermined goal. The general critique of the versions of behaviorism descending from Pavlow’s reflexology, and continuing through the approaches of Watson, Skinner, and Jones, becomes even more acute when analysing the consequences of any therapy in an enclosed setting”. We adhere to this assessment primarily because, in the history of psychological ideas itself, the behavioral model – based on concepts of stimulus and response and their interactions – has, since the 1970s, faced “a growing opposition from very different fields”, which has led many researchers “toward alternative models that take into account what happens within a subject when dealing with situations in their surroundings, before responding one way or another” [7].

Faced with this panorama, it is logical that, currently, an evolution has taken place – in regards to the content of activities making up treatment – “toward a more social conception in which the objective of social rehabilitation is directed toward the prisoner’s social relations through education, culture, sport, and work, and even toward the institution itself through the improvement of its material and human resources” [3].

An example of this – and appealing to a jus comparative perspective – can be seen in how the treatment is addressed in the Spanish Penitentiary Regulation of 1996, which – departing substantially from the traditional conception of the 1979 General Penitentiary Constitutional law, even when, without ignoring the possible use of psychological therapeutic techniques – advocates, in article 110, for a more ambitious program. This program is laid out through the following objectives [3]: a) to design educational programs to develop prisoners’ aptitudes, enriching their knowledge and improving their professional capacity; b) to use psychosocial techniques to improve the capacity of the convicted, working on problems that could have influenced their criminal behavior, such as, acting on the incarcerated person’s specific shortcomings, such as self-control of an aggressive personality, and c) promoting spaces of contact between the prisoner and the outside world. Thus, the aforementioned Regulation took a position in support of a concept of institutionalized and globalized treatment, a broader and more modern conception, consolidating a model more in line with current approaches to behavioral sciences and legal dogma, emphasizing the resocializing component more than the clinical concept [8].

Regarding the characteristics that treatment must take, several clarifications must be made:

1. First, its voluntary nature. It is indisputable that treatment must be voluntary, so that – as Barja de Quiroga [9] reminds us – “it will be the inmate who freely takes the decision that they consider appropriate and, therefore, refusal of treatment cannot lead to disciplinary responsibility” ¹ [11]. This characteristic is fundamental since, Roxin stated, “even the best therapy is meaningless if the convicted person does not accept it. Therapeutic efforts can only be successful if the prisoner voluntarily cooperates in the rehabilitation effort out of their own free will (…) The condemned person, therefore, is no longer the mere object of punishment (…) but rather possesses more and more chances to become a subject and co-organizer of the enactment of their sanction. The phenomenon of punishment is no longer exclusively an imposition of authority; it contains many calls to the prisoner’s own initiative and thus becomes aid for self-help” [12].

2. Second, this offering must be of a general character. This means, on the one hand, that it is not lawful to carry out any type of discrimination regarding the possibility of access to treatment, based on any consideration other than the individualized character that treatment must have (Article 8, Law of Execution of Imprisonment in Argentina)². From another perspective, and as a consequence of that character, penal doctrine considers that this offering should not be limited to convicted people, but likewise, should seek compatibility with the principle of the presumption of innocence and also be available to those who are in pretrial detention. In fact, in comparative legislation, Article 3.4 of the Spanish Penitentiary Regulation allows for this. To a certain extent, the aforementioned Argentine law declares itself applicable to the accused (Article 11). In this regard, at the federal level, Title IV of the General Regulation of the Accused (Decree No. 303/96) provides for a system of voluntary early execution of sentences. At the personal level – regarding the latter possibility – we cannot ignore the difficulties that the most qualified doctrine has been pointing out regarding this regime of early execution, the difficulties, and tensions that arise from the undeniable contradiction that underlies this issue. However, we think that the attempt to provide defendants with a beneficial activity and incentive against the eventuality of a future sentence is worth holding onto, as long as the qualifications registered and the phase reached are maintained and respected at the time of their definitive incorporation into the penal regime, thus allowing them to more quickly arrive at more flexible modes for carrying out their sentences.³

3. To conclude, one feature that modern literature focused on treatment has been reclaiming is its necessary opening to the outside. This enables it to not be reduced to the always limited means available within the institution itself, but rather also allows for collaboration with public and private institutions that, from the outside, can access the prison in order to contribute to the implementation of social rehabilitation activities.

2. Principles of treatment and their implementation in programs

Treatment programs must respond to certain fundamental principles, which could be stated as:

1. Treatment must start with a scientific study of an interdisciplinary nature, based on a prior diagnosis that has been formulated during the observation stage.

2. Furthermore, it must be individualized. This principle refers to the subjective and personal character of treatment in relation to the prisoner’s personal characteristics.

3. It is complex. Therefore, it should be the result of the integration of several coordinated methods, thus avoiding any simplification structured on monopolistic pretensions.

4. It must be continuous and dynamic. Its adaptation to the prisoner’s evolution requires treatment to be adjusted to the prisoner’s needs, which can vary throughout the entire sentence. A static and unalterable application, which turns its back on the evolution that the prisoner might experience, must be avoided.

5. Lastly, it is necessary for treatment to be programmed. This refers to the need to implement it through a wide range of programs that, adequately coordinated, allow for obtaining the social rehabilitation goals sought by the law.

In this regard, Daniel Alberto Domínguez [15] has – correctly – pointed out that it is important that treatment be implemented through an articulation of programs: “based on its configuration, a program delimits the field of application, its objectives, how it seeks to obtain them, the time and inputs that it will require, the number of people responsible for carrying out and those who can be included as beneficiaries, acknowledges its costs and possible scope of its benefits, is obligated to follow known quality control norms, establishes systematic forms of control for managing and monitoring the results achieved, allows for being included in a sequence or form part of a broader project, which makes it a useful way to attempt to meet the objectives of penal systems.”

According to our understanding, the design of treatment programs is a job for the executive power, since that activity is framed within the responsibilities of the body in charge of implementing penal policies, as part of the State’s criminal policy. That layout is certainly not easy. Therefore, it is worthwhile detaining ourselves, even if only briefly, on some issues that must be taken into account by those responsible for their design.

Clearly, a central aspect that must be addressed has to do with studying the organizational culture within the penal institution in which it seeks to be applied.

In connection with this analytical perspective, Domínguez [15] has dealt with the issue by specifically addressing how these programs are elaborated. He emphasizes the need to carry out a profound analysis of the places in which these programs will be implemented, seeking to predict all possible circumstances. In his words: “Each prison has its own characteristics which make it unique within the system, not only because of the building structure and the possibilities it offers in terms of the place’s layout but also in the particular form of the relationships established between staff and prisoners. Those makeup different systems of social networks of what we consider organizational culture. This culture undoubtedly facilitates certain practices and can create obstacles for others, therefore it is important to identify them before implementing a program. It also requires specifically adapting the environment for the program’s application”.

3. Problems in the application of treatment programs

When we put forth this proposal, any expert on the penal system will be able to object: from a theoretical perspective, its positioning can be reasonable. But I invite you to go to our prisons and you will see the serious difficulties that exist in putting such programs into practice.

The concern raised by our hypothetical opponent is – undoubtedly – very serious. However, it is necessary – for their peace and ours – to test out some sort of response. The thorniness of the question makes it necessary to proceed gradually:

1. First, it must be recognized that – in general terms – the premise from which the concern stems is true and verifiable. Thus, in Argentina, successive reports by the Procuración Penitenciaria [Prison’s Ombudsman] are extremely troubling. For example, in 2002/2003, in regard to job training programs, they point to: “the high percentage of inmates – to whom the Federal Penitentiary Service is obliged to provide employment – without assigned work activity. In March 2001, 52/64% were unemployed, in the same period in 2002, 53%, and lastly, in 2003, 60.77% were unemployed”. ⁴ The balance is no less worrying in more recent reports. For example, according to the 2021 report, while job positions decreased 5% between 2017 and 2019, the number of people confined increased by 19%. This led to an abrupt decline in the employment rate from 68 to 55 out of every 100 incarcerated persons. The budget cuts imposed by the national government and measures implemented by prison administrations to redistribute a more meager budget, which ended up affecting workers’ rights, must also be considered in this context.⁵

   On the other hand, while it is true that significant improvements could be seen in relation to educational programs following the reform of Law 26,695 (27/12/2006), as a consequence of the COVID-19 pandemic [11], new inconveniences arose that impacted that right. Indeed, as a consequence of this health situation, educational institutions in general and at all levels were forced to reformulate their content and how they teach it, promoting the use of different virtual platforms when it became impossible to maintain the regime of face-to-face meetings. This problem was even more intense in Argentinean prisons. In that regard, the aforementioned report from 2021 indicates that in the context of confinement in federal penitentiary establishments, education continued to not be in-person until September 2021, when a gradual process of returning to the in-person regime began. The suspension of in-person classes at all levels and modalities, including workshops, courses, and non-formal recreational activities, while students deprived of freedom were not able to use virtual educational platforms and information and communication technology in general, as has been used by education outside of prison, negatively impacted their educational processes, deepening the gap with the free environment.⁶

2. However, the recognition that this reality does not mean that we agree with our hypothetical opponent that the overwhelming state of things causes concerns over this issue to lose their meaning. We openly disagree with anyone who think so. Indeed, the fact that these difficulties exist does not mean that we should not worry about everything related to the implementation of treatment programs. Precisely the opposite, we must start from that reality to search for the causes of that problem and intensify our efforts to reverse the situation. Otherwise, we would do nothing more than ignoring the constitutional mandate that requires that prison time not be dead time but rather, through the implementation of treatment programs, at least be an attempt to achieve the rehabilitation or resocialization of the prisoner. Because one thing must be made clear: neither necessary treatment programs nor social rehabilitation imply subscribing to a sort of miraculous posture, according to which, these programs would supposedly cure all ills. That would be hypocritical. But it would be much more hypocritical to continue critiquing them without seeking systems that, always respecting the fundamental rights that the convicted person must not lose, at least offer them (through treatment) the possibility of returning to freedom with a series of aptitudes that would permit them – using the terminology of certain recent theoretical conceptions – to reduce their vulnerability in the face of a highly selective system, such as that of the criminal justice system. If we are not clear about this and ignore the issue, we are legitimizing what the sentence, by constitutional rule, should never be: pure retribution.

3. Recognizing the problem and defining our axiological attitude to it, the next step must consist of attempting to systematize the diverse causes that hinder the design, implementation, and application of these programs. In that regard, we believe that identifying the causes of these difficulties will make it easier to reverse the situation.

We believe that we are not mistaken in identifying the three most significant difficulties as the following:

c.1) First, the excessive bureaucratization of prison management tasks through the requirement to issue constant reports, makes it difficult for technical teams to dedicate themselves to carrying out and monitoring treatment programs as such.

c.2) Second, the lack of material and human resources for implementing these programs.

Let’s look at a specific example.

We have said that today therapeutic programs derived from behavioral sciences should not be the only ones on which the concept of treatment is based. However, as we have already insinuated, that does not mean that we deny their value. Let’s look at the case represented by sexual criminality. In fact, regarding those crimes, we can currently observe an effervescent discussion about the possible legitimation of selective innocuousness ⁷; especially from criminal political conceptions close to the criminal law of the enemy⁸. Obviously – due to strict constitutional principles – such legitimation among us would be inadmissible. However, underneath this debate seems to lie, among other determining factors, precisely that growing disenchantment – discussed at the beginning of this text – regarding the possibility of a resocializing intervention by the State, through treatment. Once again, here we find it necessary to make a distinction.

Are there therapeutic programs specifically linked to this form of criminality?

Specialized literature seems to provide an affirmative response. Therefore, it has been said that cognitivist perspectives can offer certain help to those who have been found guilty of those types of crimes, preventing eventual relapses. According to the literature, the main objective of these programs is to reduce future abusive actions by helping prisoners become more aware and develop alternative responses to the triggers associated with their deviant behavior and have empathy for their victims and other people. “The cognitivists argue that it is necessary for the abuser to ‘reprocess’ their own history as a victim, which entails the resignification and development of motivations for understanding, modifying, and continuously revising the maladapted behaviors for the rest of their lives.” Holzwarth et al. [19])⁹.

The same scientific opinion that we have been using as a source, regarding the effectiveness of those therapeutic programs, mentions, as an example, the Canadian experience in 1981 for the prevention of recidivism in these forms of crime. That investigation “compared two groups of subjects who committed sexual crimes: a sample of 1,160 untreated people and another 257 people treated with cognitive therapy over 10 years, with a 5-year follow-up period. The results demonstrated that there was a significant difference in recidivism among the treated, in comparison to the non-treated” ([19], 83). Thus, in conclusion, it proposed a cognitive behavioral program that can reduce the rates of recidivism specifically in regard to high-risk sexual crimes. More recent work has confirmed this tendency. For example, a study carried out with sexual aggressors in 2006 in the Brians prison (Barcelona, Spain) sought to evaluate the effectiveness of behavioral treatments in relation to sexual aggressors. The study created two equivalent groups (a treatment group and a control group). The treatment group was made up of 49 subjects who fully received the planned psychological treatment, while the control group was made up of 74 sexual aggressors who had not received treatment. The results suggested a considerable rehabilitating potential of applied cognitive-behavioral treatment. That study proves, in scientific terms, that the application of treatment reduces the recidivism rate of treated sexual aggressors from an expected rate of 18% to 4%, for an average follow-up period of almost four years [23].

The advantages of those treatments have been described by different criminological studies. Returning to the case of the Brians prison, the program oriented in cognitive-behavioral therapy lasts an average of 10–12 months, in its group phase, with four weekly sessions of two hours each. The program’s general therapeutic objectives are 1) to encourage a more realistic analysis by the participants of their criminal activities; 2) to improve their capacities and skills in interpersonal relationships; 3) to improve their chances of reinsertion and of not reoffending. “More specifically, the program is structured in modules or ingredients that target the most common deficits or ‘criminal need’ factors of sex offenders” [23].

Of course, the viability of such a therapeutic program will be strongly conditioned by the existence of a significant number of psychological professionals. In this regard, in the prison system of the Province of Cordoba, Argentine Republic, “no treatment experiences have been reported” in that direction [19] or, if they do exist, there is not a sufficient number of professionals to generalize their offering.

The auspicious results of these treatments have led to their implementation in various countries, as can be seen in comparative criminology studies, for the case of Uruguay [24] and Colombia [25].

It is true that this problem is not limited to the Province of Cordoba. It is something more widespread and has been pointed out for some time now. Domínguez [15], for example, analysing the situation in Buenos Aires affirms that only three of the thirty-eight detention units in the Buenos Aires Penitentiary Service have, in light of the incarcerated population, a relatively acceptable number of professionals. In sixteen units, the proportion is unacceptable and in the other three, there are not even any psychological professionals.

c.3) Finally, a certain existing confusion between the penitentiary regime and treatment also conspires against the effectiveness of these programs.

This is also a generalized problem. Thus, Cervelló Donderis [3] clearly differentiates two models that (a) prioritizes treatment and (b) respond to a custodial conception.

The first supposes permeating all of prison life with treatment interests, subordinating regimental issues to treatment.

The second, on the other hand, is characterized by conceptualizing individualized action on the convicted person as an element to ensure internal order. Thus, the preponderance of order and security in the prison is the basis grounding actions of the individual, since the primary interest is to maintain discipline.

4. Conclusion

We wanted to share a concluding reflection. The prison sentence is a necessary evil that, at least for now, we do not foresee can be left aside. As Zolo [26] states very clearly, “it is easy to foresee that prison will continue to be the central modality for executing sentences in […] Europe and the rest of the Western world. And currently, nothing allows for thinking that the social evolution underway could make the system of penitentiary punishments obsolete, as the theorists of penal abolitionism imagine. Abolitionism is, yesterday as today, an elemental moralistic utopia, which denies the essential function of the political system: that of guaranteeing safety…”.

This does not mean that we should give up on the search for possible alternatives to prison or, even – in areas of minor crime – design mechanisms that would replace criminal punishment. However, in parallel to that, it must be accompanied by a discussion regarding the need for a major reform of penitentiary practices.

In this regard, prison must be a sentence that – imposed to the strict extent of the utilitarian purpose assigned by the Constitution – is carried out following closely adhering to the paradigms that not only arise from the text of the Fundamental law, but also from the plexus of guarantees derived from International Human Rights Law, as a common, minimum and inalienable, axiological basis.

Therefore, as long as this punishment continues existing, prison time should be used for the implementation of treatment programs oriented toward that minimum purpose of social rehabilitation, programs that must always be respectful of those fundamental rights that emerge from the federal constitution. These programs must be individualized, interdisciplinary and effectively realized. But in addition, it must be programs that are structured with social content (educational and labor) and psychological interventions, that respond to cognitivist perspectives.

Undoubtedly, to place rehabilitation – I insist, understanding it as a model of minimum resocialization – in the center of initiatives, action at different levels is required. It will certainly be necessary for the Executive Power to remove the main obstacles that have been identified, especially those related to de-bureaucratizing the work of technical teams and providing human and material resources for carrying out those tasks. It will be up to legislators to correct those aspects that still, under current law, allow for a confusing regimen of treatment. And the Judiciary, beyond its role of constantly controlling the execution of sentences, is responsible for attempting to ensure that treatment truly exists and is not merely formal.