Incarcerated women and the capability approach: the chilean case

Perez, Patricia (2018). 'Incarcerated Women and the Capability Approach: The Chilean Case' Paper presented at the annual conference of the HDCA, Buenos Aires, Argentina 2018.

Abstract

A key UN sustainable development goal seeks to make cities inclusive, safe, resilient, and sustainable. Such a goal necessitates pondering the status of prisons, veritable “cities within a city” and a true paradigm of spatial segregation.

In formulating this goal, the UN notes that “common urban challenges include congestion, lack of funds to provide basic services, a shortage of adequate housing, and declining infrastructure.”

The most cursory of looks at the status of prison facilities in Latin America throws a stark light on these challenges: overcrowded prisons systems facing major health care, education and safety shortcomings, and often operating obsolete and/or dilapidated facilities that lack adequate maintenance.

In Chile, most correctional facilities were originally built in outlying areas which urban sprawl has turned into an integral part of the city. Paradoxically, although now often located in the heart of towns, most tend to be socially-fragmented human settlements that are excluded from enjoyment of fundamental rights.

Recent evidence shows that life in remote areas presents significant disadvantages. If prisons are, as suggested here, “cities within a city”, life in them can compare to life in remote areas. Incarceration conditions, notably overcrowding, a paucity of access to basic services, and violence, stand as a distinct hindrance for development of capabilities and functionings. And it goes without saying that incarceration itself presupposes the restriction of more than a few rights.

Among incarcerated women, inequality is compounded by their status as a vulnerable and excluded population, both within the prison community and society at large.

In Chile as around the world, these women are an invisible minority. Their disadvantaged status is strongly reflected in their degree of social vulnerability, which far surpasses that of the general population. With appropriate facilities in short supply, most women serving time are often kept far from family support networks, which compounds their isolation. Confinement further exposes women to rights violations and exacerbates the exclusion they face at the outset of incarceration.

These issues require governments to adopt gender-sensitive measures capable of correcting or mitigating the prevailing structural inequality. This obligation extends to the judiciary, which is often called upon to resolve the conflicts arising from incarceration.

As such, I intend to examine the potential value to judges of the capabilities approach, based on Sen’s assertion that human rights can be construed as entitlements to capabilities.

The issues I will explore include the factors at the root of the vulnerability and exclusion facing incarcerated women; whether a gender perspective can help enhance the notion of equality; whether the capabilities approach can contribute to the justiciability of human rights; and the advantages and/or disadvantages of the theory in correctional justice settings.

I will first examine why incarcerated women are a vulnerable minority. Eschewing homogenizing pretensions, I will instead explore the prevailing variables that shape this excluded population, a phenomenon essentially explained by the convergence of two types of factors. One, a hallmark of this category, are lower literacy and higher joblessness relative to male counterparts, as well as higher birthrates relative to the overall population. The second category involves external factors relating to the corrections system itself. Historically, facilities used to incarcerate women –spanning from convents to precarious annexes to men’s prisons– have received little attention from the authorities, leaving this population effectively off the radar of both academic research and public policymaking.

To address the second issue, I will consider a gender-based reinterpretation of the principle of equality. This will include an examination of the progress made in international human rights law in terms of enhancing the interpretation of the principle of equality from the merely formal to the substantive, which has helped further an understanding of the detrimental conditions facing vulnerable populations, including women.

The third issue will be analyzed within the framework of the capabilities approach, with a view to establishing its possible connection to judicial practice. If, as Robeyns notes, the capability approach asks “what people can do and be (their capabilities) and what they are actually achieving in terms of beings and doings (their functionings)”, it is crucial for judges, as Nussbaum emphasizes, to ponder these questions. This requires employing a finalistic, non-formalistic method of interpretation.

The fourth issue will be addressed through an examination of three court decisions, one from the Inter-American Court of Human Rights and two from the Supreme Court of Chile, all of which adjudge on several of the capabilities noted by Nussbaum. While these decisions do not explicitly use it, the capability approach can be safely construed as implicit in the underlying reasoning. I will additionally consider Sen’s observation that the capability approach does not elaborate on procedural issues in order to argue that, while the approach can be a useful theoretical paradigm in support of judicial reasoning, its understanding or application should not be restricted to the contents of a checklist.

In short, I will posit the need to integrate the capability approach into judicial interpretation of correctional matters. As these are issues of specific concern to incarcerated women, the intent is to help advance a more substantial understanding of the principle of equality and to help mitigate the structural handicaps such women face.

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