13,500 and counting. How many innocent?
Let me start this post by saying that gangs have been a terrible scourge in El Salvador. I have known too many men and boys gunned down by their obscene violence over the past two decades. I have heard the stories of too many individuals and families who have fled their homes for fear of being the next victim. They don't always succeed. El Salvador will never have peace until the root causes of gang violence are addressed.
At the same time, I also know the stories of police abuses of people living in the marginalized communities throughout El Salvador, including those who spent days. months or years in prison before charges were found to be unsubstantiated. We have seen cases of the army disappearing youth from marginalized communities. Nayib Bukele has tweeted orders to send suspects to solitary confinement in maximum security prisons, only to have them exonerated.
So confronting gang violence in El Salvador is important and necessary. Those who murder and rape and extort, should be individually captured, tried and punished if found guilty. But wars have collateral consequences, and it appears that Bukele's current war against the gangs may be eliminating protections designed, not to free the guilty, but to prevent the innocent from suffering.
El Salvador is now starting its fourth week under the emergency "state of exception" which the government implemented following 87 murders in the single weekend of March 26. As of today, the National Civilian Police indicate that they have captured more than 13,500 alleged gang members. Pretrial detention for those captured is in the same prisons as convicted criminals. The prisons where they are carrying the accused were already overcrowded, now they are filled with 22,000 more than their capacity.
After the bloody weekend of March 26, homicides have dropped back to low levels. In the month of April, there have been no more than three murders on any given day according to the PNC, with several days without a single homicide.
The social media feeds of the police and the Bukele regime are filled hourly with photos of shirtless men covered with gang tattoos. Gang membership alone is a crime in El Salvador, and the government on March 30 increased the punishment for just gang membership to 30 years in prison. Those tattoos will testify against the bodies they cover.
But within those 13,500 captured it appears that there are many innocent persons whose only crime was being in the wrong place at the wrong time. Police are reportedly being given quotas of numbers of persons to arrest, such as an order to make 30 arrests in Cinquera, a municipality with no known gang presence, according to the head of one organization that represents rank-and-file police officers. A police agent described to one reporter how it might just be the neighborhood, style of dress and a haircut which was sufficient to make someone walking in the street a suspected gang member who should be arrested.
- A school teacher who had ventured out on the street to go to the local corner store when he was grabbed by police and soldiers.
- A factory worker coming home from his shift, walking with his wife after buying a few things for supper. More than 15 days had lapsed and he had no initial judicial hearing and had been transferred to a prison in Izalco.
- A youth with mental disability enrolled in a special need school was captured off the street.
When police have grabbed someone with friends and contacts who can get news coverage and broad social media networks, there have been instances of authorities admitting their mistakes and releasing them.
- A graduate in communications, employed with a job, was carried off with two neighbors, and his family and friends and teachers did not know the reason or his whereabouts. He was freed after a social media campaign and stories in the local press.
- Four workers at a well known coffee shop on the slopes of the San Salvador volcano were carrying the night's receipts, which the police claimed were extortion payments when they were arrested. Freed after publicity orchestrated by the owner of the cafe and its patrons.
The human rights and civil society organizations Cristosal, SSPAS, and Azul Originario issued a report about a sample of 28 cases of arbitrary detentions and abuse by security forces. El Salvador's Human Rights Ombudsman reported receiving 42 complaints of arbitrary detentions in the first week of the state of Exception.
Police everywhere make mistakes, and a judicial system is supposed to safeguard the innocent. There are several ways in which the courts in El Salvador are failing to protect those who have committed no crime.
First, under the State of Exception, the police do not need to observe someone committing a crime and do not need an order for capture (arrest warrant). The State of Exception allows the police to hold someone for as long as 15 days without any right to a hearing on the reasons for the arrest.
Second, because of the overwhelming number of arrests, those detained are being processed in mass hearings, conducted virtually by video. In those hearings, which might involve more than 100 accused persons, a single judge is expected to rule on justification for the arrest and whether the person will be held in prison while their criminal proceedings advance.
Anti-corruption lawyer at Cristosal Ruth Lopez described these initial hearings:
“It is like a maquila factory processing cases and here the freedom of the people is at stake. The problem here is that the people who have been arbitrarily detained are at risk because the prosecution cannot prepare the cases, the defense cannot act, and the judge has to see an exorbitant number of proceedings and there are no guarantees that each case can be dealt with individually as required for criminal responsibility,"
Third, defense lawyers are not being allowed to participate in the hearings. On top of that, the Procuradoria General, which provides public defense lawyers to those who cannot afford one, closed its offices for Semana Santa as thousands of people were entering the criminal system.
Fourth, the hearings are conducted in secrecy, with the Attorney General's Office and the courts having declared that all the proceedings are confidential and closed and may not be disclosed to the public.
Fifth, the Bukele regime is putting intense pressure on judges not to release anyone. Any judge who releases a person for lack of proof from prosecutors faces the probability of being labelled a corrupt judge who is in league with the gangs. Bukele tweeted without evidence that there is just a 1% margin of error in the arrests.
Here is a collection of comments from prominent Salvadoran experts:
Las detenciones generalizadas no se justifican, las capturas no son resultado de investigaciones previas; es imposible que un Juez reciba prueba en audiencias de 300 o +. No todos los detenidos son delincuentes,sin defensa y sin Independencia judicial, están presos por ser pobres— Zaira Navas (@ZnavasAp) April 17, 2022
The widespread arrests are not justified, the arrests are not the result of prior investigations; it is impossible for a Judge to receive evidence in hearings of 300 or more. Not all detainees are criminals, without defense and without judicial independence, they are imprisoned for being poor. -- Zaira Navas, former Inspector General of PNC.
Toda detención ilegal es delito. No se puede justificar ni aduciendo márgenes de error, ni argumentando que el detenido andaba o vivía en una zona "peligrosa" de la ciudad. Exigir responsabilidades incluso penales para quienes detengan a personas ilegalmente es un deber ciudadano— josé maría tojeira (@ChemaTojeira) April 11, 2022
Any illegal detention is a crime. It cannot be justified by adducing margins of error, or by arguing that the detainee was walking or living in a "dangerous" area of the city. Demanding responsibility, including criminal responsibility, for those who detain people illegally is a citizen's duty. -- José María Tojeira, S.J., director of IDHUCA
Y dadas las condiciones políticas actuales, donde si dejan a alguien libre es por corrupción y no porque existe poca evidencia inicial, dudo que alguien se arriesgue a que lo destituyan.— Erika Saldaña (@erikasaldana) April 17, 2022
El problema lo están trasladando para adelante en el tiempo, a la etapa de instrucción.
In a judicial system that was already collapsed before the emergency regime, the Attorney General and the courts do not have the capacity to prosecute thousands of people in the initial stage without making mistakes and without bringing innocent people into the system. There are no guarantees of due process....
And given the current political atmosphere, where if someone is set free it is "because of corruption" and not because there is little initial evidence, I doubt any [judge] would risk being impeached. The problem is being transferred forward in time, to the instruction stage [of criminal court cases]. -- Erika Saldaña, Salvadoran constitutional law expert