Public service: An alternative to women's incarceration in Colombia

By Claudia Alejandra Cardona, Mujeres Libres

Women in prison: Experiences of inequality, vulnerability and poverty

Most women in prison are heads of households. Before arriving in prison, they had no opportunities and were caring for children or others who were financially and emotionally dependent on them. In some cases, the persons under their care are living with permanent disabilities, are elderly people, or are unable to care for themselves. Even while in prison, these women continue to hold care-giving and provider roles.

In most cases, these women committed a crime out of a need to provide for their households and the basic needs of their families. However, they have been punished for transgressing society's notions of what constitutes womanhood, for being "bad examples" and, above all, for seeking survival alternatives that do not fit in with the roles that have been imposed on them and define whether a woman is "good" or not.

Women who are imprisoned are judged and singled out, without society and the justice system taking into account the circumstances surrounding the commission of a crime and/or the reasons that led them to commit it. In addition, the impact of the imprisonment of women extends directly to children and adolescents, as they are forced to live without their mothers, suffer emotionally and in many cases take on adult roles and responsibilities, all of which exposes them to greater risks and the violation of their rights and their lives.

Building an alternative to incarceration in line with international standards

To address the conditions of inequality, vulnerability and poverty faced by women and their families in society and within the prison and penitentiary system, since 2019 the Colombian Congress, together with several civil society organisations and academia, including Mujeres Libres, have been participating in working groups on prisons and women organised by the International Committee of the Red Cross in Colombia.

These working groups sought to design and promote a draft law on alternative sentencing for women in prison that would take into account their specific needs and seek to reduce the impact of imprisonment on the people who depend on them economically, affectively and socially.

It is important to remember that the United Nations has promoted a differentiated treatment for women in prison, advancing non-custodial alternatives to imprisonment. In 2010, the UN General Assembly adopted seventy (70) Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders, better known as the Bangkok Rules. With Rule 57, for example, States are urged to provide optional alternatives to imprisonment for women, taking into account their history of victimisation and vulnerability, as well as their caring responsibilities. Similarly, Rule 58 imposes a duty to formulate alternatives to imprisonment that avoid separating women from their families and communities, so as to reduce the negative impacts of imprisonment.

After several debates in Congress, Bill 093 of 2019 (Senate) / 498 of 2020 (House) was developed and approved. However, President Iván Duque objected to it invoking its unconstitutionality, without having clear legal arguments, based on a punitive criminal policy for women that is characterised by the excessive use of prison, ignoring obligations in terms of differentiated criminal treatment and without considering women's vulnerability factors.

In mid-July 2022, the Constitutional Court rejected the President's objections and, according to Article 167 of the Constitution of Colombia, the Court's ruling "obliges the President to sign the law" after the Court publishes the sentence. We do not know how long this will take, but the Court's rules of procedure indicate that the Court has a maximum of 30 working days to do so. It is possible that it will come out quickly and President Iván Duque will sign the law, or it may take a little longer and it may have to be signed by President-elect Gustavo Petro.

Public service as an alternative measure

This law adopts actions aimed at supporting women who are heads of household in vulnerable conditions and who have been sentenced for minor crimes (e.g. theft, minor drug-related crimes, and other crimes with a prison sentence inferior to eight years). Crimes related to domestic violence are excluded. Research shows that the increase in prison sentences and in imprisonment for these types of crimes, especially drug-related crimes, especially affects women in vulnerable conditions and the support systems of people under their care (see, for example: Caicedo Delgado, 2017 and WOLA, 2020).

The purpose of this law is that women who fulfil care-giving roles and are responsible for the support of their families have access to the substitution of prison sentences through the provision of an unpaid "public service" in their communities. Instead of serving a custodial sentence and being separated from their children or other persons and family members who are emotionally and economically dependent on them, these women would be required to engage in community service.

These services would be related to the upkeep of roads and public spaces; support to the victims if they agree to it; assistance to vulnerable communities; cultural, environmental or educational activities; and other similar activities. The purpose of this community service would be, according to the Law, to allow "the re-establishment of the social fabric affected by crime".

Therefore, this public service may be carried out in public institutions, non-profit organisations and non-governmental organisations, which must inform that they are able to receive the women beneficiaries in their structures to fulfil their service. The Ministry of Justice shall be responsible for drawing up the agreements with these entities or organisations, taking into account that the service may not interfere with the woman's work and educational endeavours and that it must be carried out close to home. Women shall be required to work a total of five hours for each week of imprisonment imposed on them or yet to be served.

Criteria for access and monitoring

Hearing and enforcement (JEPMS) judges will be in charge of substituting the prison sentence for the provision of public services. Furthermore, the process must take into account the care responsibilities carried out by the woman, as well as the fact that the service must include tasks that contribute to her educational and/or professional training, trying not to assign only tasks traditionally assigned to women, such as cleaning, taking care of clothes, preparing meals, among others

According to the Law, the organisations and entities that have facilitated the provision of the service must inform judicial authorities, by means of reports, of "the activities carried out by the woman and the relevant incidents to judge the fulfilment of the sentence". They must also report the end of the service. The report must be accompanied by the records that accredit the fulfilment of the activity, indicating dates and times.

Other requirements for access to the alternative penalty include:

• The measure shall not apply when there is a firm conviction for another intentional crime within the five (5) years prior to the commission of the new crime, in the case of conspiracy to commit a crime if it is related to the crimes described above.
• Lack of a criminal record within five (5) years prior to the commission of the offence, except in the case of culpable offences, the main penalty for which is a fine.
• Demonstrate by any means that they are a mother who is the head of household and has affective, economic and social responsibility on a permanent basis for her minor children or persons in a condition of permanent disability. This could be done through the testimony of her relatives or other persons
• It must be shown that the crime was committed because of conditions of poverty affecting the head of the household. Although the Law does not establish any standard or definition in this regard, it could be demonstrated, for example, with documents showing that she did not have a job, place of residence and living conditions, testimonies from people in the community, among others.

Challenges to building less punitive justice alternatives

In addition to being a way to reduce overcrowding and the violation of rights that is systematically experienced in prisons, this law is the first step towards achieving a less punitive criminal policy for women and reducing the disproportionate impact of imprisonment on women and their families.

Furthermore, the employability policy that the Law provides for can generate much more effective measures than imprisonment, by directly tackling the causes of vulnerability that led them to commit crimes in the first place. The Law orders the Ministry of Labour in coordination with the Ministry of Education and the Ministry of Commerce, Industry and Tourism to design a public employability policy that includes education and training for entrepreneurship, with the objective of facilitating access to employment and entrepreneurship, and improving re-socialisation processes in a way that responds to the needs of women and of the labour market when they regain their freedoms.

It should be borne in mind that an employment policy for women released from prison should include social intervention strategies and not only of access to work. This policy should be designed in such a way that, in addition to employment intermediation services for women excluded from the labour market, it takes into account the importance of building women's capacities to obtain and retain employment and their adaptation to change, together with specific measures on non-exclusion, inequality, stigmatisation, etc. It should also take into account the provision of physical and psychological health services, opportunities for accessing housing, education and, of course, go hand in hand with a pension system appropriate to their conditions and needs, given that these are women who have not had the option of making pension contributions before detention, let alone in prison, which accentuates the possibilities of precariousness in old age.

It is a law that transforms criminal policy and is a model for the region, which seeks to generate solutions to the problems experienced in prisons, since it also includes the creation of a policy of comprehensive care for the promotion, prevention and monitoring of mental health, psychological care and psychosocial support within the country's prisons, which will be the responsibility of the Ministry of Health and Social Protection.

Towards a regulation that responds to women's needs

At the moment, the regulation of the law is yet to be fleshed out so that women can finish their sentences outside of prison and be with their children or other family members who need them so much. The national government has six months to enact it, including the design of the contracts between the state and the companies or organisations that decide to receive the women for public service, regulations on the conditions under which the work will be carried out, the requirements for submission of a public service plan, among other things.

It is a priority for the incoming government to speed up this process in order to ensure that the law is implemented and that women can quickly access this alternative. Likewise, it must be very clear, so that there are no legal vacuums, how it will be determined who will be able to benefit from this alternative regime - avoiding subjectivities on the part of the judicial authorities.

Finally, it will also be of great importance to regulate the implementation of the public service regime in such a way that it does not affect the work and care responsibilities of the women beneficiaries. In this regard, it is worth noting that the law specifies that in no case should these working hours exceed eight hours a day or twenty hours a week (a minimum of five hours is required), in order to give priority to the primary objective of the law: to remedy the conditions of socio-economic vulnerability faced by women deprived of their liberty and their dependents.