Judicial reasoning and the use of pre-trial detention in Chile

The use of pretrial detention has generated widespread debate in Chilean legal doctrine. However, there are few empirical studies that have evaluated how this measure is being used in practice. This paper draws on two lines of literature: (i) criminal procedural doctrine that has historically been critical of the grounds of “danger to society” for justifying pretrial detention; and (ii) studies that evaluate criminal procedural reform and have warned of a high degree of “mechanization,” “routinization,” or “automation” on the part of judges when ordering pretrial detention, particularly in motivating their decisions. Specifically, despite the jurisprudence of the Supreme Court, the motivation of pretrial detention judges is highly mechanized. The hypothesis that this paper seeks to corroborate or refute is as follows: judges are justifying the grounds of danger to society’s safety by using the criteria in paragraphs 3 and 4 of Article 140 of the CCP as if it were a “checklist.” The problems that arise from this are discussed, and guidelines for a possible solution are established.