Prosecutors and Courts Between Law Enforcement and Rights Protection: Insights from the COVID-19-Pandemic in Chile

This study examines how courts and prosecutors in Chile navigated the balance between law enforcement and rights protection during the COVID-19 pandemic. Latin American courts played a pivotal role in preserving democratic principles during the health crisis, particularly by overseeing executive power and safeguarding citizens’ fundamental rights (Llanos & Tibi Weber, 2023). At the same time, the judiciary enforced restrictive measures that often curtailed civil liberties, exposing tensions between these roles (Ginsburg & Versteeg, 2021). These challenges were particularly significant in a region characterized by political instability and institutional weaknesses. In Chile, known for having one of Latin America’s most independent judicial systems, the Public Prosecution Office and courts produced an unusually high number of convictions for lockdown violations. Between 2020 and 2021, lockdown violations became the most prosecuted offense in Chile, with over 50% of reported cases leading to convictions, a stark contrast to the less than 3% conviction rate for other crimes during the same period (Ministerio Público, 2023). This punitive approach stopped in April 2021, when the Supreme Court limited criminal liability for lockdown violations, adopting a more protective, counter-majoritarian stance (Londoño, 2021). Notable exceptions emerged early on, as two appellate courts —Temuco and La Serena— consistently resisted punitive interpretations of curfew violations, acquitting most defendants. This occurred even before the Supreme Court’s ruling abandoned the punitive criteria. The observed spatial and temporal differences in decision behavior led to the following research question: Which factors explain the different judicial and prosecutorial responses to emergency powers invoked by the executive during the pandemic? We test three strategic explanations for these responses: First, prosecutors anticipate judicial rulings they believe will be unfavorable and adjust their behavior to avoid acquittals. Second, judicial and prosecutorial responses to emergency measures vary in proportion to the severity of the pandemic. Third, judicial decisions during the pandemic were influenced by the level of public support for restrictive measures. The empirical strategy combines quantitative and qualitative methods. Using a unique dataset of prosecutors´ and court decisions in 2020-22, we use difference-in-differences (DiD) and multilevel regression models to examine enforcement dynamics. The DiD approach treats the Supreme Court’s 2021 ruling as a natural experiment, comparing trends in enforcement across jurisdictions before and after the key ruling. Multilevel regression models account for regional and temporal variations, providing insights into judicial and prosecutorial behavior. These analyses will be complemented by qualitative interviews with judges and prosecutors to explore how institutional constraints and public expectations shaped decision-making, Our study advances the understanding of the dual role legal institutions play during crises, balancing enforcement with protection. By comparing regions within Chile, it sheds light on how external pressures and strategic behavior influence judicial and prosecutorial decisions, offering theoretical and empirical insights into the governance of rights during public health emergencies.