“It’s time for a rereading of the penitentiary law.”

José Luis de Castro is a Judge of the Juvenile Court of the National Court and of the Central Court of Prison Oversight. He is 59 years old, born in Ourense, and proud to be from there. He has been in the judiciary since he was 25 years old and has been in prison oversight courts for 30 years.

Ecos de Soto: Good morning and thank you for your visit and for making time in your busy schedule.
José Luis de Castro: Good morning, first of all, thank you. I think you are doing an extraordinary job, it’s a way of showing reality.

We have read that you are described as a humanist judge. What does that mean for someone who sees cases of prisoners deprived of their liberty every day?
This year, in December, it will be 30 years since I casually and completely randomly entered the prison jurisdiction. At the age of 28, I had been promoted to judge. I had my bags packed to go to Tenerife to a civil court. Life is what directs you, then we are the ones who choose the path. It led me to Valladolid to a court of instruction that turned into a prison oversight court in a few months.

That’s when I faced the reality of those years. It was a very complicated, difficult period, but I remember it with great affection because it exposed me to illness, the needs of people, and the world of drugs.

Paz Fernández Folgueroso, who was the Director General of Penitentiary Institutions, had the courage to recognize the existence of drugs in prisons. Different specific programs were implemented. When you face that reality and come from a world you don’t know, you need to have humanity, because otherwise you would be a monster, it doesn’t have much merit.

It is true that in these years everything that is the system has changed a lot, as well as criminal activity in Spain. At the penitentiary level, we are experiencing very good moments compared to those previous ones, which were very hard.

We read in an interview that you always wanted to be a judge. Why?
My original idea was to be an architect, I am passionate about architecture. I started studying it for a few months, but I had a health problem, a vision problem in one eye. So I reflected and asked myself, what can I do that involves balance and harmony? And that’s when I thought about law. It is true that when I started it, I was enthusiastic about the idea of being a judge because I saw it as a very creative figure.

Any judge has a lot of responsibility. You, as a Judge of the Juvenile Court of the National Court and of the Central Court of Prison Oversight, hold in your hands the most precious thing for a person, which is freedom. How do you value it? How does it influence your day-to-day life?
I always try to see the person, for me, that’s the most important thing, putting a face to people, not just names and surnames, but a face. Thinking that behind every person serving a sentence, there is suffering. Crime causes pain, for the victim, the victim’s family, the offender’s family, and the offender.

When I was a judge at the Plaza de Castilla, a young man came to talk to me about his father. When they come to visit me, I never look at the file beforehand, I listen to them first. And that’s when he told me about his father and the need for him to recover. When he left and I saw his file, one of the crimes that I dislike the most and that causes me the most rejection appeared, which is all the pedophilia-related issues, anything related to the vulnerability of minors. But that visit raised a personal, very unsettling question for me, which I have asked my students at university many times: In the case that their parents were convicted of a crime of that nature, what would their response be? Would they be able to forgive them? It’s a question that I leave open. For me, that moment marked a turning point because I realized that life needs to be seen from a polyhedral perspective. You can’t just be a report, there are many prisms, many colors, many nuances. And the nuance that the young man gave me was an enormous lesson for me. And that’s what I want to convey through my work.

It is clear that the pandemic caught us all by surprise. How do you think it influenced the prison life? Did you take it into account in your decisions?
First of all, I want to thank and recognize the prison staff and the inmate population for their exemplary response. What could have become a powder keg was an impressive display of behavior, deserving the highest rewards and recognition.

It is true that there was a real need to try, in a way, to release, soften, and send home those individuals with less social and criminal risk. And that was done in many cases. It was done with a lot of responsibility, taking into account the judicial perspective and legality control. Each and every one of them complied with the law. There were occasions where some releases happened earlier than expected, but it truly responded to the law.

We have listened to a podcast on Cadena SER about your personal experience. How has it changed the way you approach decisions regarding inmates with mental health problems?
Look, let’s be clear, because it’s not a taboo. Unfortunately, I had to face a mental breakdown of my father, which I experienced firsthand. I faced a reality where there was no support from the Healthcare Service. I do not doubt the work of the doctors at all, but I believe that the system doesn’t function properly. Furthermore, there is an additional issue, it doesn’t work for the families either.

What I realized is that I knew nothing, and I had no help from anyone. I spoke to the doctors and they told me I had to listen to my father. I would talk to them again the next day and tell them that I saw him worse than yesterday, and they would say, “don’t listen to anything, don’t say anything because it really increases the anxiety and madness he is experiencing.” That’s when I realized that it was necessary to establish a Mental Health Law. If we bring this to the prison environment, the situation triples. It is much more problematic because we are dealing with people who are locked up. I believe that at this moment, the great debt that the prison administration has is to address mental health issues.

A few years ago, it was proposed that psychiatric prisons should disappear and be incorporated into the regular health networks. This is really positive from a theoretical perspective, but if, as I have experienced in practice, the regular health system is insufficient, doesn’t work, and lacks resources. The hospitals in Alicante and Seville have been maintained, but I really think that a serious commitment needs to be made: hiring professionals, establishing specific treatment programs, and definitely recognizing that people with mental health problems don’t belong in the infirmaries.

In addition to the sick inmate, we have the other side, the inmate who has family outside, who is also psychologically ill due to worry about the incarcerated family member.
I have been negatively surprised and upset when there have been some releases for health reasons of people who were well-known or very radical criminals with serious offenses. I was surprised by the position of some institutions, for example, the Catholic Church, which was very critical of that, and also some sectors of the medical field. We seem to forget that when our legislation places these cases in the framework of grades and parole, it should be established as an exceptional regulation for humanitarian reasons.

I have explained this ad nauseam, but it is always linked to the dying period. “How many years will this person live?” Look, a person with a heart problem can live many years or could die tomorrow, what’s important is that we have the means to ensure that this person has a dignified life and the most favorable life in terms of health treatment. If the people who are granted these grades or conditional releases live longer, then blessed be God.

A severely ill person in a penitentiary center has physiological needs, but they also have emotional and sentimental needs, the need for affection due to the vulnerability caused by their illness, because it generates fear. And that is what we should enhance and work on. In my opinion, it is being done. At least, it is one of the things I have felt most proud of. Obviously, with those individuals who we know pose minimal risk to society.

Every Spanish person is a national soccer team coach, and lately also a judge. Many of these media trials end up on your desk. Is it easy to detach yourself? Do you feel social pressure in any of these cases?
I would be a hypocrite if I said that there is no media pressure. It’s another thing to determine how one deals with it. I maintain a rule in my life, and that is that I set the pace. When I receive a case, I analyze the file and set the schedule, unless the treatment team tells me otherwise because they are the ones who know the inmate—I don’t. But from the perspective of the penal execution, I set the pace, and I don’t care about media pressure. I won’t deny that it obviously causes concern, but it doesn’t influence me because I have very clear decisions to make, and I believe I have demonstrated that over the years. It doesn’t generate any fear in me.

Is the spirit of Article 25.2 of the Constitution fulfilled in Spain?
When the 1979 law, the General Penitentiary Organic Law, was approved—which was the first law of democracy—followed by the first Penitentiary Regulation that we had, it was a truly precious moment. Everything was to be built, everything had to be done, and consequently, there was a very voluntarist spirit. At the same time, there was a need to focus on reintegration. What I have seen in recent years is that legislative modifications have increasingly hardened the execution of sentences, not the crimes. It’s curious, for example, the reform of the Penal Code that reduces the length of sentences for certain crimes. But then, in the execution of the sentence, for example, the security period prevents the classification until halfway through the sentence, and these execution difficulties are enormous. That’s why I want to believe that we still have the spirit that the Constitution sets as the main goal, but without ignoring—and this is a subjective evaluation—that this disproportion doesn’t align with the security Spain enjoys.

What is your opinion on the suspension of releases, if there is recourse by the Prosecutor’s Office according to the Supreme Court’s ruling?
Well, look, I’m going to be very cautious. The ruling surprised me a lot, I studied it carefully. I was struck by both the majority and individual votes, but it is also true, and I have to admit, that we are currently lacking a Penitentiary Procedure Law that the legislature does not want to provide at any time. Perhaps it would have been better to have taken it through a legislative process that would have led to debate and discussion.

Has the time come for a reform of the General Penitentiary Law?
Absolutely. When Alfredo Pérez Rubalcaba was minister and the Commission was chaired by Carlos García Valdés, who has been the cornerstone of the Spanish penitentiary system as the creator of the current Law. The need for reform was recognized, he called it rereading, and we worked on a very interesting project. Why? First, because the law does not fit the current classification of Centers. Second, the disciplinary system is completely outdated. Third, important figures, such as article 100.2 of the Prison Regulations (rp), which need to be strengthened, are provided for in the Law but not in the Penitentiary Regulations. Figures such as supervised release, where the Judge proposes but does not decide and it has to be the sentencing court, necessitate the need for this rereading of the law.

I hope that this challenge that we are now putting forward will be taken into consideration and that reform will actually come sooner rather than later.

On many occasions, article 100.2 of the rp has been described as a legal fraud. Penitentiary surveillance judges and prosecutors, in various meetings, have requested that it be further developed. Has the time come to modify the Penitentiary Legislation?
Articles 100.2, 114, and 117 of the rp are valuable tools in penitentiary evolution. Many times there are individuals who cannot access third degree but could access a form of semi-liberty through article 100.2 of the rp. And from two perspectives, from the perspective of the individual’s progression – what we call treatment – and from the perspective of control by the prison administration. Why? Because third degree, depending on whether it is article 83, 84, or 86 of the rp, carries with it an almost automatic living arrangement.

We can shape article 100.2 then, “blessed 100.2, blessed 117 that allows us to work, to incorporate that evolution of the individual with degrees of freedom”. What happens? Well, maybe we have to see this 100.2 as an intermediate form of degree. I know technically it’s not, but we have to be aware of it, empower the technical teams to work in that direction of 100.2 and, of course, turn to legislative reform. What we cannot do is regulate something as important as penitentiary classification through regulations and not through law. But I will say that I am in favor and I grant, in a way – I wouldn’t say generously, but very common – article 100.2, because for me it is one of the truly valuable instruments that were incorporated into the regulatory reform.

Both excess and deficiency in punitive sentences are harmful to the individual. Is there a formula for calculating in each case the sentence that each inmate must serve?
We work from a perspective, which is no other than a passport, which is the sentence. That is what guides us. There are people who come to me and tell me that they do not agree with something in their sentence, because it is not true, because it has been misinterpreted. It may be debatable, but we have to work with that. From that perspective, we have to look for alternatives, not so much in measuring the sentence or its application, but in finding other solutions that are sometimes not seen.

For example, the figure of pardon in the penitentiary context, as provided for in article 206 of the Regulations, is not requested by anyone. And you see people with eight years of sentence who could apply for it after serving half. And it’s because lawyers are unaware of this legal figure. Article 117 or 114, when should they be requested? What solutions can be given? Then, I think we have important instruments that are often not applied or claimed, either by the inmates or by the administration. Whether due to negligence or lack of knowledge. What I believe is that we have to consider that the sentence sets the path, and the evolution of the individual is what allows us to measure the execution of the sentence.

A raíz de su contestación ¿no cree que el derecho penitenciario se ha visto como el hermano pobre del derecho penal?
En mi caso tengo la suerte de que en el Juzgado de Menores pongo sentencias. Entonces ya puedo ser un juez de primera, pero es cierto, que se ve como una hermana pobre. Y eso genera un problema muy gordo. Y lo hablo a veces con mis compañeros de la Audiencia Nacional y les digo: “vosotros veis a la persona privada de libertad durante un período de tiempo que es el juicio, le ponéis una sentencia, pero esa persona realmente con quien convive —los años que le condenéis— es con la administración penitenciaria y con el juez de vigilancia que le corresponda. Entonces, hacerle un poco más de caso, sobre todo muchas veces en el tema de las apelaciones”. Luego ves que se revocan resoluciones que tú sabes que esa persona merece ese beneficio —porque has hecho un seguimiento— y desde la perspectiva del Tribunal sentenciador se sigue con el run run de aquella sentencia tan dura que se puso, y que realmente se mantienen unos parámetros, que creo que no son los propios penitenciarios.

Y tenemos la suerte de tener un derecho penitenciario muy bueno. Tenemos la suerte de tener unos profesionales que trabajan muy bien y tenemos una suerte frente al derecho penal. En el Derecho Penal a la hora de imponer la sentencia, el juez tiene que fijarse en parámetros proporcionales, tal delito, autoría, agravantes, atenuantes; tanta pena. El Derecho penitenciario parte de eso, pero tiene la flexibilidad, porque quitando el periodo de seguridad que en muchas ocasiones puede rebajarse, realmente podemos trabajar con la evolución de la persona. Eso es con lo que nos tenemos que quedar.

Dentro de lo que es la realidad penitenciaria ¿cree que los internos y sus familias, son conscientes de la importancia de la figura del Juez de Vigilancia Penitenciaria?
No solo lo ignora, hay veces que parece el enemigo, pero entiendo que la figura del juez de vigilancia tiene es más para ayudar, que para lo contrario.

La justicia restaurativa, ¿un curso o una nueva forma de justicia?
Vamos a ver la justicia restaurativa como curso bendita sea. La gente que ha tenido problemas y delitos económicos ha sido realmente su salvación. Entonces, dejemos las cosas como están y potenciamos la justicia restaurativa como curso. Ahora bien, la justicia restaurativa como alternativa a determinados delitos me parece que es muy importante. Porque la justicia restaurativa tiene una ventaja y es que beneficia a la víctima, porque ve restaurado el daño que se le ha causado.

¿Ha llegado un momento de la entrada de las nuevas tecnologías en los centros penitenciarios para los internos?
Desde luego. Se ha hecho mucho. Como llevo muchos años recuerdo cuando la posibilidad de conceder un ordenador a una persona para que lo utilizara era un trabajo de Hércules. A día de hoy se ha adelantado mucho, pero siempre hay que tener en cuenta la seguridad.
Desde la parte de las nuevas tecnologías como alternativa a la pena, pienso que son fundamentales para la posibilidad de los beneficios penitenciarios o para diversos grados, con un control a través de pulsera o cualquier otro dispositivo, ya es posible. Creo que realmente beneficia y permite además, primero cotas de libertad para el sujeto, y también descargar lo que es el peso de la propia administración penitenciaria.

Bienvenida sean siempre, con el máximo rigor y con la máxima seguridad y sobre todo también desde la perspectiva de la dignidad de la persona, en el caso de que se trate de medios telemáticos.

Considering your years of experience, do you think it is necessary for prison officers to have the authority to act as agents of authority?
Absolutely. In the Citizen Security Law, there was a provision to grant them that status, and I believe that a prison officer is someone who should have the status of authority and the principle of immunity, in the sense that they should stand alongside any other public servant, such as in the police field, and have the same rights.

Prison officers have been very competent, and in my thirty years of practice, I have seen it. They have been extraordinary professionals within the overall administration, often overlooked and forgotten. Today this is not so common. They are in much better situations now, but they are still very much overlooked.

And what we don’t realize is that this country owes a lot to prison officers. Why? Because apart from the fact that they could be the target of attacks and kidnappings by ETA, much of the information they had about terrorist organizations came through the work done by prison officers. For that reason, I repeat, my utmost recognition, my utmost gratitude, and my utmost affection.

What does it mean for a judge to decide on the situation of inmates as diverse as someone with a terrorism offense, another with corruption, or another with drug trafficking?
First of all, I try to see the person, I try to isolate myself from the environment, because otherwise it would be impossible, and see what the reports tell me from an individualized perspective. The only thing is that there are nuances afterwards. Why? Because you know that, for example, in terrorism offenses, the law is going to require specific requirements that it may not require in drug trafficking. Or for example, in the issue of corruption, you know that you have to approach the problem from the perspective of civil responsibility, from the perspective of restorative justice, and from the very important perspective of volunteer work. That’s what you have to specify in each case, but without a doubt, and believe me, that’s how it is, the most important thing is always the individual. The individual as a subject, as a personal subject, and their own circumstances.

I know that you are Galician, and proud to be one, can it be seen when you go up or down?
Look, I’m going to explain to you how Galicians are. I feel very proud to be Galician and Spanish. Moreover, both things are complementary. You, those who are not Galician, see that you don’t know if I’m going up or down, but the Galician, he knows. That’s the key, we have an advantage.

What would you say to the inmates of Soto del Real?
To the inmates of Soto and to everyone in general, what I would say is that being in prison is very hard. Being deprived of freedom is not just the freedom of movement, but the separation from family, the separation from loved ones, realizing that there are many people who suffer because of one’s actions. So what I would say fundamentally is that they try to do things as best as possible, that they try to participate in all the activities offered by the facility. That they look for the penitentiary benefits they can access, which are often unknown, and above all, that they assume their responsibility, that they realize that one can get out of here, but that they have to leave in conditions so as not to come back in.