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Constitutional protections from the State’s punitive power are necessary.[1] Defending them is often unpopular. It is also controversial: as occurs on other topics, their substance is not always defined in every detail by the Constitution and therefore democratic organs can vindicate an exclusive role in their interpretation. The Argentine Supreme Court has interpreted them relatively generously in recent years. The main question is whether this should be cause for celebration, or if on the contrary it is a good result reached in the worst fashion.

[1] In this easy I do not provide a conceptualization of these protections, although I offer some examples of them. When I refer to these constitutional protections I have in mind things like the limits of police forces to investigate crimes; standards about arrest and pre-trial detention, as well as the validity of evidence collected; the right to be assisted by state-appointed counsel, to appeal a conviction, and to be tried within a reasonable period of time; standards about the condition of penitentiaries and the rights of inmates, etc.


Paper delivered at SELA 2010, Insecurity, Democracy, and Law, in Santiago de Chile as part of the panel on “The Limits of Criminal Law.”