In this very short exposition I am going to address a brief historical review of the death penalty in Bolivia, which includes a similar reality experienced in the Bolivarian countries of the region: Colombia, Ecuador, Peru, Venezuela, and Panama. At the end of this presentation, I will explain my personal position in reference to the death penalty.
To start I must state that historically the death penalty has always been present in Bolivia. It has been used by the Aymara people, the Quechua people, and also in the Inca empire and in the colonial era.
The Aymaras and Quechuas, due to the nature of their agricultural work, used the death penalty as a punishment for the theft of their products and animals. The execution of the death penalty was carried out through falling off a cliff, burning at the stake, dismemberment, the gallows, burial while still alive, and stoning.
In the Inca empire there was a more advanced justice system. There is evidence of the determination of criminal types that were punished with the death penalty, among them were coitus with the virgins of the sun, theft of imperial goods, murder, adultery, rape, incest, desertion, and military indiscipline.
The type of death penalty was socially conditioned. For example, beheading was for nobles and lords, as it was considered a worthy way to die. In contrast, one of the unworthy penalties was burning at the stake, reserved for those who had carnal access to the virgins of the sun. The common penalty for all was hanging, followed by cremation of the corpse. They also made use of cliff falls, dismemberment, burial while still alive, stoning, and dragging.
The death penalty was maintained in the colony. Among the laws that governed were the Fuero Real, the Fuero Juzgo, the Laws of Seven Partidas, and the New Royal Ordinances, which established the criminal regime in the colonies of America.
Currently in Latin America the right to life is guaranteed, since most of the Latin American countries have abolished the death penalty. They include Argentina, Bolivia, Chile, Colombia, Costa Rica, Dominican Republic, Ecuador, El Salvador, Haiti, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Uruguay, and Venezuela. Two countries still have the death penalty, although they have not carried out executions since 2008: Cuba and Guatemala. Therefore, in most Latin American countries, the death penalty has been abolished through constitutional and legal reforms. This long procedure started in the 19th century.
In Bolivia, a partial abolition of the death penalty was expressly established in the Political Constitution of 1839. It was partial because in cases of treason against the fatherland, rebellion, parricide, and murder it continued to prevail.
There were retrograde attempts to restore the death penalty, such as the Law of November 5, of 1971, which tried to established the death penalty for other crimes. However, due to the principle of constitutional supremacy, its application was practically non-existent.
It was the American Convention on Human Rights, “Pact of San José de Costa Rica,” approved and ratified in Bolivia through Law No. 1430 of February 11, 1993, which, in accordance with its Article 4, abolished the death penalty. Subsequently, in the 1997 Amendments Act, the death penalty was removed from the list of main penalties in the criminal law code of Bolivia.
The New Bolivian Constitution of 2009, expressly establishes among its provisions: The non-existence of the death penalty, and the maximum criminal sanction is 30 years in prison without the right to pardon.
However, outside the city in rural regions the possibility of being tried and killed still persists, along with lynching. In colloquial terms it is called community justice (law that governs the indigenous communities of Bolivia), which is incorrect. Unfortunately, this inhumane and unconstitutional practice continues to be used to punish thieves and criminals. For example, in May 2021, in a community in Pocoata Potosí, a man was burned for stealing a car. Therefore, lynching continues to occur under the pretext of community justice, which from a technical-legal point of view is inconceivable.
Finally, I must mention that in Bolivia, as in most Latin American countries, the system of the highest penalty governs. That is, if a person commits several crimes, they can only be sentenced for the one that deserves the greatest punishment. Therefore, penalties are not cumulative because of the cost of the State to maintain the inmate. This cost is an ongoing a legal issue and a justification for reinstating the death penalty.
We have all heard several arguments that the death penalty is effective because it intimidates the rest of the population and it is cheap because, according to them, the death penalty removes a cancer from society at no cost to the state.
However, in my opinion the analysis from a purely economic approach for Latin America is too simplistic, since most of the countries have the following problems:
- There is an enormous delay in justice.
- There is an absence of scientific investigation, and archaic methods are used to conduct criminal investigations.
- The judicial powers are normally subject to executive power. In other words, there is no independence of powers. This prevents an innocent person from being killed for political reasons.
In this reality, applying the death penalty would be irresponsible.
The death penalty is irremediable and offers no recourse against a possible miscarriage of justice. Therefore, applying it in my country, as in much of Latin America, would be irresponsible.
It is impossible to detract from the fact that the death penalty is a cruel act by which the authorities of a country decide to kill a human being in view of their society. This invites the social and collective interpretation not only to see murder as a cruel and ruthless act, but as an act of justice, which is inconceivable. It is a bad example for society that easily creates in its inhabitants new forms of evil, revenge, or murder.