Abuse of Pretrial Detention in Cases of Flagrante Delicto: Criminalization of Poverty in Ecuador

Abstract

This article suggests a critique of the abuse of pretrial detention, with respect to the commission of a rare crime or of little social significance, or the analysis of the execution of a short sentence with a preventive detention order, which is costlier for the State, rather than making the decision of an extrajudicial reparation, or resolve with non-custodial sanctions, alternative to prison. 

Freedom is the general rule, which can only be exceptionally and motivatedly restricted, especially if it is too serious a crime. But it is the responsibility of the State to take care of this freedom, fundamental rights and constitutional guarantees that protect not only the victim but the offender. The order of preventive detention must be adjusted to the reality of the accused, especially when there are other precautionary measures that do not deprive him of his right to liberty, in this way his situation as a defendant is avoided, just to respond to an equivocal interest of security and supposed justice that society demands. 

Ecuador's Comprehensive Criminal Code lacks justice and reasonableness. The system has allowed itself to be carried away by customary work and not by what the norm expressly mandates and prohibits. The result of this is prison overcrowding, for crimes less serious than those carried out by members of the government, who affect not only the direct victim of a specific crime, but the entire Ecuadorian people. But it is still more important to prosecute lighter crimes, and order custodial sentences to disguise "justice" in front of the society that cries out for jail, while the great crimes are being absorbed by the forgetfulness of Ecuador's judges, and by the same cycle of corruption due to punitive populism, which result not only in prison crisis.  but more criminalization of poverty.