The contentious anti-gang law passed by the Legislative Assembly on September 9 and signed into law by President Funes on September 19, entered into force this past Sunday. The new law, awkwardly entitled the Law Prohibiting Maras, Gangs, Groups, Associations and Organizations of a Criminal Nature, carries tougher prison sentances for belonging to a gang – four to six years for rank-and-file members, and up to 10 years for ringleaders (La Prensa Gráfica, 9/18/10). The new law is a response to escalating gang violence and associated illicit activities, notably drug and arms smuggling, extortion, and kidnapping. El Salvador has one of the highest homicide rates in the world, with an average of 13 Salvadorans killed daily. The gangs are known for their brutality, as exemplified by a June incident in which a gang member lit a micobus on fire, resulting in 17 deaths. The National Civil Police (PNC) estimates that El Salvador is host to 20,000 gang members, 7,000 of which are already incarcerated.
The new law prohibits the existence, legalization, financing and support of gangs; declares actions that are otherwise legal but related to gang activity to be unlawful; establishes judicial, civil and administrative responsibilities for financiers, collaborators and promoters; and grants the Attorney General and applicable judges the power to freeze bank accounts, properties and assets. The law does not apply to minors, who are covered by the Law of the Protection of Childhood and Adolescence (LEPINA), but it does apply to current inmates already in jail serving prison sentences for unrelated offenses.
According to PNC Director Carlos Ascencio, the law also seeks to strengthen the research that provides evidence of gang membership. He ruled out the possibility of mass police raids, but clarified that mass arrests could occur, provided sufficient evidence. He added that the police “will catch those who are organized for the purpose of committing crimes” (El Porvenir, 9/21/10). The government also plans to establish rehabilitation programs for gang members wishing to defect, although rehabilitation was not included in the newly enacted law.
The response has been a mix of skepticism and hope. On Monday, a journalist from La Prensa Gráfica visited residents in regions of Tonacatepeque, Apopa, and Soyapango––areas known for high crime rates––and reported the state of affairs as largely unchanged. Residents also pointed out that there was no increase in police presence since the new law took effect (La Prensa Gráfica, 9/20/10). The Archbishop of the Archdiocese of San Salvador, Monsignor José Luis Escobar Alas, stated Sunday that “(The law) is not enough; it is not the solution. There need to be paths for improvement, real rehabilitation programs, and progress in the process of prevention and investigation” (La Prensa Gráfica, 9/19/10).
Some officials in Guatemala and Honduras have expressed reservations about El Salvador’s new anti-gang law, which could provoke an exodus of thousands of gang members to neighboring countries.
In order for the new law to be effective, the Legislative Assembly will have to approve a series of reforms to Article 345 of the Penal Code,. Article 345 makes it illegal to be in a gang and sets prison terms, which under the current version mandates three to five years for membership and six to nine years for leadership in a gang. The reforms proposed in early September increases prison sentences to four to six years and seven to ten years, respectively. The reform also seeks to incorporate the term “organized crime” into its wording.
Attorney General Romeo Barahona described the new anti-gang law as part of a two-pronged approach to combating illegal groups, each relying on the other to be effective. Article 345 establishes the punishment for gang membership, whereas the new anti-gang law sets out the general framework for defining illegal groups, membership, funding, and associated illegal actions. The anti-gang law will be enforced via Article 345 of the penal code. Deputy Minister of Justice and Security, Henry Campo, told La Prensa Gráfica on Tuesday, “The [anti-gang] law is a general law that develops administrative and civil aspects and is a complement to the Penal Code.”
Many wonder if all of this legal posturing has any real significance in cracking down on gang violence in the country, given that Article 345 has already been in place and yielded underwhelming results. In 2009 there were 2,206 cases of illegal groups with 5,900 defendants; of those, only 305 cases were brought to court due to lack of evidence on the part of police and prosecutors (El Mundo, 9/19/10). The new anti-gang law is likely to experience similar results, given that it does not lay out any specific parameters or guidelines for establishing evidence of gang membership.
There are also logistical concerns that have not yet been adequately addressed. The new law may result in an influx of prisoners to El Salvador’s already overburdened prison system. As of August 31, the Salvadoran prison system had 24,311 inmates, despite only having the capacity to house 8,110 prisoners (AFP, 9/20/10). The Office of Penal Institutions has indicated it has plans to build a prison exclusively for the purpose of housing those detained under the new anti-gang law (La Prensa Gráfica, 9/20/10). For the time being, however, the directorate said that the newly remodeled maximum-security prison in San Francisco Gotera is capable of receiving 500 new inmates.
In a September 21 interview with Agence France Presse, Jannet Aguilar, Director of the Institute of Public Opinion of the Central American University, emphasized “15 years of investigations demonstrate that gangs are the result of the confluence of social, economic, political, institutional, and geopolitical factors.” She added that the maras are a byproduct of “dysfunctional families that do not accept their role as guardians” and repressive states that do not provide real work and educational opportunities.
The new anti-gang law has raised a salient point: does imprisoning gang members really treat the root of the problem? Will the harsher penalties imposed under the new law be enough to deter individuals from joining gangs? Given the past failures of similar legal efforts and the lack of state-sponsored measures to address the multifaceted root of the problem, one cannot help but wonder whether any measurable changes will result from the new anti-gang law.