A Decolonial Feminist Critique of Penality

by | 29 Mar 2021

Andrea Zambrano Rojas & Iván Zambrano. ‘Staroutkinsk (Russia) and Quito (Ecuador)’ 2021

Contemporary penal expansion does not have an exclusively neoliberal heritage, so how are we to make sense of penality thriving through progressive political discourses? In this post, I propose a decolonial feminist lens to look at contemporary penal expansion and calls for carceral justice in the Global South.

Around 80 people were brutally killed on February 23, 2021, inside three of Ecuador’s largest “social rehabilitation centres”.[2] Video clips of the incident went viral on social media and group chats, showing mutilated, beheaded, and dismembered bodies. Prison staff reported that police took too long to act. After searches, knives, machetes and hacksaws were seized. Further unrest took place the following morning, despite the deployment of at least 400 police agents outside prison buildings. In the midst of these horrific events, many people in social networks tried to justify what happened, stressing that those killed were criminals “after all”. Some social media users even mocked those who mentioned prisoners’ human rights.

These dehumanising narratives were in many ways fueled by official discourse, which portrayed the massacre as a confrontation between international drug gangs, and as the aftermath of a gang leader’s murder in December of 2020. The President of Ecuador, Lenín Moreno Garcés, suggested that the riots were connected to drug trafficking, and that the former government was responsible for the massacre, due to having expelled a US military base that operated in the coastal city of Manta, until it closed in 2009. These dominant discourses portray, once again, the prison as a space separate from society, streets, homes, and all public and community life. For their part, critics of the government denounced that warnings of imminent interpersonal violence had reached the authorities several days before the riot, without any discernible actions taken.

Although some security experts are now calling for the strengthening of the carceral system, in reality, the endemic violence inside Ecuadorian prisons is tied to factors that largely transcend gang conflicts. It can be traced back to our “common sense” around penality[3], as well as previous goverments’ failure to challenge core liberal assumptions on law and justice, including Western human rights frameworks. Penal expansion rootedness in the colonial occupation of non-penal views on justice, and this association to human rights,  in order to challenge the common sense on carcerality, we need to perform a decolonial feminist epistemic break.

Carceral expansion 

In recent years, Ecuador has quadrupled its prison population. Detention centres house some 38,000 detainees, with an overcrowding of around 35%. According to the National Police, in 2018 there were 15 violent deaths in the prison system; in 2019, the number increased to 32 and in 2020, to 51. Moreover, informants who have worked for state security agencies told me that this is likely an underestimation. They also reckoned that about 40% of the prison population is under the “preventive detention regime”, that is, without a conviction. “Populist punitiveness” —politicians’ call for harsher carceral sanctions to satisfy citizen’s demands for safety — continues to be, however, the usual response of authorities in the face of social unrest.

As many readers will know, an ample sector of critical scholarship has linked penal expansion and rising incarceration rates to the decline of the welfare state. In principle, the crisis in Ecuador is indeed connected to the austerity measures executed by Lenin Moreno’s government (2017-2021), which included the elimination of ministries related to social development, labour and human rights — notably, the Ministry of Justice and Human Rights, the Ministry of Interior — which were replaced by smaller secretariats. The National Service for the Comprehensive Attention of Adults Deprived of Liberty and Adolescent Offenders (SNAI), which designs programmes for social reintegration[4], had its budget reduced by 43% in 2020, while the number of social workers and prison guides is notably insufficient. Moreover, even though, legally, the Ecuadorian prison system is managed and funded by the state, in practice, the family members of the inmates largely fund their subsistence and safety via monthly “contributions” in an effort to fill in the deficit. 

In contrast to the present government, the previous regime, known as the Citizen’s Revolution, was regarded by many as anti-neoliberal and as an example of Socialism of the 21st Century. It has been widely acknowledged that poverty was reduced in Ecuador during that period. In view of the existing analytical links between neoliberal policy and penal expansion, one could have expected penality to somewhat contract during Ecuador’s post-neoliberal period. Yet, Correa’s government in many ways consolidated a patriarchal punitive state; for instance, via reforms of the Penal Code that exponentially increased the number of prosecutable offences. Furthermore, incarceration rates dramatically rose during Correa’s leadership  — and afterwards. The Citizen’s Revolution designed and built large detention centres and disseminated a narrative by which insecurity was largely the result of judges’ being lenient and releasing those in preventive detention. The paradox of what I would call a “postneoliberal penal expansion” is not unique to Ecuador; indeed, scholars working on Latin America have exposed carceral expansion during the time of left-leaning governments that, at some point, were referred to as the “pink tide”. 

As we see, today’s carceral crisis has long been brewing, including through the security measures deployed by a regime that was known for prioritising economic redistribution. In other words, penality did thrive despite (or maybe through) a social redistribution programme. Therefore, while acknowledging that late capitalist economic politics have played a crucial role in facilitating penal expansion, it is also urgent to ask why, across the political spectrum, penality is seldom challenged. Why does common sense around carcerality prevail across space, time, and political shifts? One way to think about this question is addressing penality as an effect of epistemic colonisation. I advocate, therefore, for a decolonial feminist critique of penality, which can enable us to frame penal expansion, at its root, as effect of the subordination of some human groups and their knowledges based on gender, race, and class. Decolonial feminist perspectives are important, not only because we further need to gender the discussion on penality and securitisation, but also to consider other underexplored areas, such as the relationship between hegemonic masculinities and social violence, in relation to criminal cultures and identities. Decolonial feminist can also expand our understanding of increased vulnerability to suffer abuse within the penal system of women, gender non-conforming, and non-white individuals.

Epistemic colonisation

Anibal Quijano describes coloniality, above all, as an epistemic phenomenon; Gayatri Spivak talks about  “epistemic violence” to describe how subaltern knowledges are silenced. Maria Lugones argues, in the same vein, that coloniality cannot be understood without recognising that gender, as regulated today, was introduced as an epistemic, and social category through colonisation. Moreover, contemporary feminist theorists have suggested that an epistemic occupation of feminist antiviolence work has contributed to the build-up of mass incarceration. Indeed, law makes claims to truth that privilege Western ontologies and epistemologies, excluding from the realm of the juridical that which does not conform to the paradigms of liberal legality. In turn, liberal legal discourse does not frame law as a device that is complicit in producing social inequality, instead, liberalism portrays law as a neutral arbiter to solve social conflict.

At the same time, it is apparent that most citizens in the Western (and Westernised) world regard carceral punishment as inseparable from the realisation of justice, and as a fair and necessary state response to crime. This, despite the lack of convincing empirical evidence that criminal punishment can rehabilitate, neutralise or dissuade. Liberal legal discourse, in failing to interrogate law as a co-producer of social subordination, contributes to leaving the penal apparatus itself uninterrogated, or, at best, portrays it as susceptible to optimisation through the reform of legal provisions or the enhancement of their application. 

However, critical scholars have shown that human rights instruments are increasingly encouraging and even compelling states to mobilise penality as a response to human rights violations. Drawing on these perspectives, I have shown elsewhere how human rights-based penal frameworks have travelled across neoliberal and post-neoliberal periods in Ecuador, unscathed. I have argued that this is, amongst other factors, due to citizen’s investment in the symbolic power of criminal law, and, most importantly, a broader tendency of legislators and and policymakers to regard human rights principles as politically (and economically) neutral. In Ecuador, this brought in the reproduction of a human rights-based penal framework within the 2008 “postneoliberal” Constitution. This implied a repetition of what had been the human rights-based framework of the 1998 Constitution, which was deemed “neoliberal”. Furthermore, using the example of feminist campaigns to counteract violence against women (VAW), I have contended that the successful turn to criminal law in Ecuador and Latin America is symptomatic of a series of colonial continuities that include the epistemic colonisation of non-Western knowledges on community life, domesticity, sexuality, and justice. The continuation of colonial discourses on family protection, for instance, facilitated the passing of carceral laws on VAW, while also undermining the progress of feminist demands such as the decriminalisation of abortion.

In the broader field of criminal justice, liberal legality continues to produce criminal policies that fail to acknowledge complexities such as legal pluralism, the gendered nature of criminality, the vulnerability of women of colour to suffer abuse within the penal system, and the suffering, not only those who are imprisoned, but also of the ones who love them from outside the carceral walls. A decolonial feminist lense, in allowing us to look at penality as a colonial and patriarchal enterprise, will expand our scope of analysis. We will be able to critically address penal expansion even when it occurs within political programmes that have, at least in some ways, challenged neoliberalism.

Nada sobre nosotras sin nosotras (nothing about us without us)

As mentioned above, according to Heiner and Tyson, the ubiquity of carceral punishment is an example of the epistemic occupation that has colonised some feminist antiviolence work. Feminist critical theorists have characterised carceral violence as a form of heteropatriarchal and racialised violence: criminal law and policy present particular challenges to a feminist ethic and politics of emancipation, because penality deploys forms of coercion and sanction that are especially harmful to underprivileged women.

For scholars, embracing an anti-colonial feminist ethic can translate into more horizontal research methodologies (such as participatory action research) that include the individuals and groups that are affected by the penal apparatus, from the stage of research design. Considering such possibilities, and endeavouring to materialise the “nada sobre nosotras, sin nosotras[5] (nothing about us, women, without us) feminist motto, an ad-hoc alliance, the Alianza contra las prisiones (alliance against prisons), has recently formed in Ecuador, connecting citizens, activists, researchers and professionals from various disciplines, to challenge the dominant discourse on crime and incarceration. 

Amongst the collectives that came together is Mujeres de Frente (Women at the Front), composed of persons and groups who advocate for prisoners’ wellbeing. Mujeres the frente groups together family members of inmates, feminist researchers, grassroots activists and incarcerated persons, to continuously denounce the precariousness of life in prison. Far from the government’s depiction of the recent riot as a gang war of sorts, members of Mujeres de Frente are vocal in pointing out that a large proportion of inmates are convicted for nonviolent crimes, such as drug micro-trafficking. Moreover, many of them were not connected to any gangs until they were incarcerated. Much work by collectives like Mujeres de Frente brings forward an anti-violence discourse that is anticapitalist, decolonial, and feminist. For instance, they address the struggles of female “criminals” who tend to be themselves survivors of gender-based violence, while also working alongside the families of male inmates.

The work of Mujeres de Frente and other counter-hegemonic collectives can inspire us to continue developing a decolonial feminist critique of penality aiming at disrupting the epistemic roots of liberal legality. Such critique complicates existing analyses linking penal expansion solely or mainly to neoliberalisation and/or the co-option of feminist politics. If legal coloniality is not pinpointed and interrogated, penality can be portrayed as compatible with, and perhaps constitutive of, a redistributive political project and a human rights-based legal framework. In addition, decolonial feminist critique can throw light into the complex effects of juridifying women’s struggles through human rights and criminal law, not only via scholarly work and reflection, but also through our involvement in community projects that can directly impact on people’s lives.

[1] Silvana Tapia Tapia is an Assistant Professor of Socio-Legal studies and Coordinator of Research of the Faculty of Legal Sciences, Universidad del Azuay, Ecuador.

[2] The prisons of Guayaquil, Cuenca, and Latacunga, where the riots took place, are the largest in the country and concentrate about 70% of the incarcerated population.

[3] I use the term “penality”, drawing on Foucault and Garland, as comprehensive of various discourses and social technologies regarding crime, including criminal laws, courts, policies and practices.

[4] This institution has the mission of guaranteeing comprehensive care for adults and adolescents in conflict with criminal law, through the development of skills to allow their reintegration into society.

[5] In Spanish, the word “nosotras” translates as a feminine “us”, therefore transforming the latin nihil de nobis, sine nobis motto into a proclamation of women’s movements.

1 Comment

  1. Thanks for the blog Silvana! Insightful and inspiring. We discussed it in our decolonisation reading group at Utrecht University in the Public International Law LLM


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