Excarceration of Inmates in Peru: Navigating Legal Complexities Amidst a Global Pandemic (2023)


The potential release of hundreds of thousands of inmates in Peru due to the COVID-19 pandemic has ignited diverse opinions within the legal community and the public. This contentious issue revolves around the humane treatment of individuals serving preventive detention or serving sentences amidst the unprecedented health crisis.

Developing the Theme

Renowned voices in the legal realm advocate for the release of inmates across the 95 penitentiary establishments in Peru, citing the principle of humanity in sentencing. While the COVID-19 outbreak serves as a catalyst for this challenging situation, legal frameworks, both substantive and procedural, offer various avenues as alternatives to incarceration.

According to legal scholar Melgarejo Barreto, the state, guided by principles of criminal policy, should focus on the reeducation and resocialization of offenders, particularly those involved in minor offenses that pose minimal societal threat. The application of penal institutions during a national emergency like the current pandemic serves as a formal yet drastic means of social control.

Presidential Grants: Pardons and Commutation of Sentences

Recently, Dr. Marianella Ledesma Narvaez, President of the Constitutional Court, urged President Martin Vizcarra to utilize his powers of pardon and commutation of sentences to curb the spread of the coronavirus within prisons. This proposal, discussed within the Council of State, outlines specific criteria, excluding cases related to terrorism, drug trafficking, corruption, and human rights violations.

The constitution empowers the President to grant pardons and commute sentences, exercising the right of clemency for defendants whose pretrial detention has exceeded double its stipulated duration. Pardon, a special grace measure, entails the complete or partial forgiveness of a sentence, while commutation involves replacing a more severe penalty with a milder one.

Former President Alberto Fujimori's recent request for a reduced sentence through the Presidential Pardon Office highlights the ongoing debate around these executive powers. The newly enacted legal framework under Supreme Decree 004-2020-JUS establishes specific conditions for evaluating and recommending presidential clemency during the COVID-19 emergency.

Criteria include having a chronic, advanced-stage illness increasing the risk of COVID-19 infection, being a mother with a child in prison, being pregnant, having a sentence of no more than four years, being over 60 years old, and maintaining a clean record without other charges or national detention orders.

Crisis in Peruvian Prisons

The 95 prisons in Peru face a severe crisis marked by overcrowding, surpassing their intended capacities. Statistical data reveals alarming figures: a prison population of 95,548, with 60,669 serving sentences and 34,879 in pretrial detention. The vulnerability of inmates, especially those over 60 years old, facing chronic diseases or tuberculosis, exacerbates the risks in the current pandemic.

The prison system's inability to cope with the pandemic is evident in the lack of sanitary conditions, restricted inmate visits, and the suspension of family support, resulting in discontent among the incarcerated population. Recent riots in various prisons, including instances of injuries and deaths, underscore the urgency of addressing the crisis.

International Perspectives on Inmate Release

The Inter-American Court of Human Rights recommends prioritizing alternative measures such as parole, house arrest, or early release, particularly for high-risk groups like the elderly, pregnant women, and those near the end of their sentences. The Inter-American Commission on Human Rights advocates for measures to address prison overcrowding, including reevaluating pretrial detentions to identify cases suitable for alternative solutions.

Judicial Response

The Executive Council of the Judicial Power has responded with administrative resolutions, directing judges to review the legal status of incarcerated individuals under their jurisdiction. These measures involve virtual hearings and the consideration of requests for conditional release or parole.

The recent extension of the Judicial Power's work suspension until May 10, 2020, further emphasizes the commitment to evaluating and modifying the legal status of inmates during this crisis. The resolution also authorizes emergency judicial bodies to process requests for penitentiary benefits through virtual hearings.


In conclusion, addressing the prison crisis in Peru during the COVID-19 pandemic requires a balanced approach. While advocating for the humane treatment of inmates, it is crucial to assess each case individually, considering the proposed criteria for clemency and alternative measures. The legal community and policymakers must work collaboratively to prevent prisons from becoming hotbeds of COVID-19 and uphold the dignity and well-being of the incarcerated population. The evolving legal landscape reflects a proactive response to a vulnerable population amidst a global health emergency.

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