Remaking Indians, Remaking Citizens: Peruvian and Mexican Perspectives on Criminal Law and National Integration Lior Ben David, Tel Aviv University
email@example.com Abstract At the end of the 20th century, recognition of indigenous peoples’ rights in Latin American constitutions has undergone a significant evolution, while legal reforms officially “turned” some of these countries into multicultural nations. For many scholars, this multicultural shift was particularly prominent on the background of many years, in which the legal systems of Latin America ignored, excluded, assimilated and repressed indigenous peoples, portraying “The Indian” as an anomaly in a society of free end equal citizens. This article examines the images, representations and treatment of the Indians and "the Indian Question" in the Peruvian and Mexican Criminal Law during the first half of the 20th century. In both countries, I will argue, the sphere of criminal justice played a significant role in remaking Indians and citizens, as it became an important arena in which different assimilationist and integrationist approaches towards the Indians were confronted. In a broader context, the historical-comparative examination of these two cases can also further our understanding of the ways by which racial classifications within the criminal law and the criminological discourse were sometimes used not only to exclude “problematic” social groups but also to promote, to some extent, their inclusion into “the national community”.
Introduction On May 27th 1921, José Choqque’s body was found hanging by the side of a road leading to one of the villages in the province of Canchis, Peru. Signs of violence were still visible on the body and his poncho, which had served his murderers as a hanging rope, was wrapped around his neck, Circumstantial evidence led the local authorities to the three Espinoza brothers, with whom Choqque had quarreled a short time before he was killed. This tragic event was not unusual; in fact, it was one of many violent incidents that occurred in the region at that time.1The criminal act committed by the Espinoza brothers was not related to customs, beliefs or cultural practices that could be considered “Indian” or “indigenous.” Nevertheless, in its verdict of September 1925, the court in Cuzco referred not only to the essence of the crime but also to the nature of its perpetrators, who were described as “illiterate, semi-civilized Indians, with absolutely no sense of culture.”This statement did not reflect only the court’s view of the defendants; but rather the implementation of the provisions of the new Peruvian penal code that had come into effect about a year earlier. For the Espinoza brothers, there was a practical and positive aspect to the way the court classified them under these legal provisions: Their classification as semi-civilized Indians enabled the court to reduce their prison sentences significantly and for two of them, that reduction resulted in an immediate release from jail.2
That racial categorization of the Espinoza brothers as semi-civilized Indians and its legal outcome – their early release from prison – was it an act of exclusion or inclusion? Their case, I think, can serve as a good starting point to reconsider the roles played by criminal legal systems within national projects for the assimilation or integration of indigenous peoples and to reevaluate their functions as mechanisms for social inclusion and exclusion. These issues, of course, are relevant to many countries in Latin America and elsewhere; countries that were subject to processes of colonization, whose colonial legacy, including its legal component, continued to shape their socio-ethnic relations for countless years after gaining independence.
At the end of the 20th century, recognition of indigenous peoples’ rights in Latin American constitutions has undergone a significant evolution, while legal reforms enacted during the last few decades officially and constitutionally “turned” some of these countries into multicultural nations.3 For many scholars, this multicultural shift was particularly prominent on the background of many years, in which the “legal systems of Latin America ignored, excluded, assimilated and repressed indigenous peoples”.4According to Grote, in this pre-multicultural era, “the insistence on assimilation often suggests that Indians could not be treated as full citizens before they had not adopted as their own the individualistic attitudes of their mestizo surroundings. In this perspective Indians were either to be treated as minors or incompetents whose existence and behavior should be monitored and controlled, or as individuals sophisticated enough to be assimilated and detribalized, and therefore not entitled to any special protection.” “In either alternative”, he concludes, “The status as Indian appeared as an anomaly in a society of free end equal citizens”.5
This paper examines the images, representation and treatment of the Indians and "the Indian Question" in both Peruvian and Mexican criminal law during the first half of the 20th century. At that time, Peru and Mexico, two major former centers of pre-Columbian civilizations and Spanish colonial domination in Latin America, were also two countries in which the indigenous past and present have played an important role in constructing "the national community". In the second decade of the 20th century the “Indian question” rose to unprecedented saliency in the public and political agendas of both countries. In Peru, the Southern provinces of the Andes were experiencing increasing social unrest, which took the form of violent clashes between Indian peasants and local landowners that were often described as Indian revolts. Mexico at that period was even more tumultuous: 1910 saw the eruption of the Mexican Revolution in which many Indians took part demanding “land and liberty” (tierra y libertad). The “Indigenismo,” in its promise to protect the Indians and to effect their integration within the modern Nation State, was quickly incorporated into the official ideology of various political regimes that took power in both countries.
The Indigenismo, it is to be stressed, was neither a consolidated ideological movement nor a unified political party. Its flag-bearers, the Indigenistas, were Creole or mestizo intellectuals aspiring to resolve the “Indian question,” drawing upon a belief that the key to a national future, to progress and modernization, lay in the assimilation or integration of the Indians. While assimilation of the Indians on a national scale was hardly a novel idea, Indigenist discourse during the period in question sharpened the distinction between “integration”, as an idea of mutual convergence, and “assimilation”, as a unidirectional process wherein to become a modern Peruvian or Mexican one must cease to be “Indian”. The novelty, moreover, introduced by the Indigenismo was manifest not only in discourse but also in a range of practices and projects in which, contrary to prior undertakings, efforts were made to realize theoretical approaches towards integration and assimilation. In both states the influence of the Indigenismo was far-reaching, as evident in a wide scope of areas such as politics, education, agrarian policy, art, literature, archeology, and more. In the fields of criminology and anthropology, for example, new positivist conceptions - frequently paired with well-established racial and cultural observations - served the Indigenistas to investigate and analyze the problem of "Indian criminality" within the more comprehensive discourse on the position of the Indians within the nation, and the nation's identity in general. In addition to the Indigenist discourse, Peru and Mexico also had a lot in common in the legal sphere. Peruvian and Mexican jurists, influenced by the positivist school of thought, adopted the view of criminal law as a means of social defense – an idea given expression in their penal codes of the 1920s and 1930s. Furthermore, in accordance with the zeitgeist which Duncan Kennedy characterized as the “social era” of law,6 Peru and Mexico (as well as other countries) saw the law as a tool for social engineering, a way to correct society’s deficiencies, improve the conditions of certain social groups and above all, as one of the means to obtain national integration.
This said, despite all the similarities between these two states, within the legal arena Peru and Mexico endorsed radically differing approaches to the question of whether or not to grant explicit legislative recognition to what was often perceived and described as social, cultural or racial differences between the Indians and other constituents of the population. Peruvian legislators of the time – employing an Indigenist stance and manifesting a sense of continuity and identification with their colonial past (or at least parts of that past) - were willing to adopt special tutelary legislation for the Indians. Their Mexican counterparts, on the other hand - imbued with the liberal-republican tenets bequeathed by the mid-nineteenth century alongside the sense of resurrection instilled by the Mexican Revolution - stood by the unyielding principle of equality before the law. The discrepancy marking the attitudes of these states was also clearly apparent in their criminal legislation. While the Peruvian criminal code of 1924 accorded a special penal treatment to Indian criminals, who were classified in this code into different ethno-legal categories, the Mexican criminal codes of that époque tended to avoid any specific or explicit reference to the Indian populations and reflected thus a different perception of their social realty, in which all Mexicans were considered as equal citizens under the law.
In a way, these different legislative attitudes of the Peruvian and Mexican criminal codes towards the Indians represent the two alternatives or polarities of the “assimilationist approach” in Grote’s argument: The treatment of Indians as quasi-legal minors (Peru) and the avoidance of any special protective treatment (Mexico). However, as I will argue in this paper, during the heyday of the Peruvian and Mexican indigenismo, the sphere of criminal justice played even a more significant role in remaking Indians and citizens, as it became an important arena in which different assimilationist and integrationist approaches towards the Indian populations were confronted. The field of criminal law was used by Peruvian and Mexican jurists, prosecutors, criminologists and anthropologists not only to question the anomaly of the Indians and their legal status but sometimes also to reexamine the anomaly of the social order in these countries and to redefine the identity of their nations. Moreover, in a broader context which goes well beyond the Peruvian and Mexican perspectives, the examination of these two cases can also further our understanding of the ways by which racial classifications within the criminal law and the criminological discourse were sometimes used not only to exclude “problematic” social groups but also to promote, at least to some extent, their inclusion into “the national community”.
Peru: Inclusion through racial classification? In 1924, the Peruvian Congress introduced a new Penal Code, which replaced the previous one from 1862. Its enactment, together with the Constitution and the Code of Criminal Procedure legislated four years earlier, reflected the desire of the regime to reform and modernize the Peruvian legal system, as part of its vision and effort to modernize and develop the Peruvian state. This spirit of progress and modernization was manifested in new concepts and scientific innovations in the fields of penology and positivist criminology that were included in the provisions of the new Penal Code.7 One of its clear and important innovations was the treatment it accorded to a special “category” of criminals: Indians that were classified as “semi-civilized” or “degraded by servitude and alcoholism”. According to article 45 of this code, when a criminal act (any criminal act!) was committed by an Indian in this category, the Peruvian judges were required to consider his “mental development", his "cultural level" and customs, and then to punish him “prudently”, as an offender with limited responsibility. The meaning of this was a legal option to reduce his punishment significantly. In addition, when dealing with this category of Indian-criminals, article 45 also authorized the courts to substitute punishments of penitentiary and prison for “security measures” (medidas de seguridad) such as sentencing the accused to an agricultural penal colony or a school for arts and crafts.
Hence, in 1924 the Indian population of Peru was formally and explicitly introduced into the national penal code of the republic, bringing an end to 100 years of supposed equality before the law. Obviously, the idea that the law should distinguish between Indian criminals and other people who committed the same criminal acts was not completely new in this part of the world. In fact, a similar perception characterized the Spanish-colonial legislation. The colonial law, which was part of the Recopilación de Leyes de los Reinos de las Indias, clearly stated that "being part of the Indian race" should be considered as a mitigating circumstance if the Indian was the perpetrator of the crime, and as an aggravating circumstance if the Indian was its victim.8 The Peruvian liberal legislators of the 19th century rejected this colonial legacy and emphasized the idea that all citizens were equal before the law. It is not surprising, therefore, that in the first Peruvian penal code of 1862 we find no reference to the Indian population of the country. However, the absence of the Indians from that penal code was not just an expression of the liberal notion of equality before the law. It was also the result of the blindness of Peruvians elites, which turned the Indians into invisible human beings. The code of 1862 was merely based on an adaptation of the Spanish penal code from 1848.9 For José Simeón Tejada, one of the formulators of that code, it was only natural that the Spanish code would serve as a guide and a model for the Peruvians, whose customs, according to Tejada, were formed by “the eternal molds of the laws and the language of Castile”.10 Thus, in the eyes of those who drafted that code, all Peruvians were equal before the law, but the term Peruvians referred mainly to the descendants of the Spanish conquerors, or at least to those who adopted the Spanish customs, laws and language. The lack of any reference to the Indian populations in the first penal code of independent Peru was the result of ignoring their very existence.
In 1924, when the new penal code was enacted, the Indians could no longer be ignored by the Peruvian legislators. Since the second decade of the 20th century, the violent conflicts between Indian peasants and land-owners in the southern districts of the Andean range, which were often described as “Indian insurgencies”, contributed to raise the "Indian Question" to the top of the public agenda and also to strengthen and reaffirm its association with the issue of criminality. The echoes of the Mexican Revolution (and few years later also those of the Bolshevik Revolution) further contributed to the tense atmosphere in the region.11 Moreover, the tension and violent conflicts in the south-eastern provinces also strengthened the demand that the Indians would be protected by the state. In many aspects, the new status of Indian criminals in the Peruvian criminal code of 1924 was indeed part of a wider legal project which was meant to protect the Indians throughout "tutelary legislation".
Tutelary Legislation and Criminological Discourse Protection of the Indian was among the oft-reiterated objectives of the "New Fatherland" regime, which adopted the Indigenismo as part of its official ideology and integrationist project. One of the ways by which president Leguía sought to establish his image as “Protector of the Indian race” was through legislation, and during his period an abundance of “tutelary laws” for the Indians was proposed. This idea was also expressed in the Peruvian constitution of 1920, which declared that "the state will protect the Indian race and will dictate special laws for its development and culture in harmony with its necessities."12
The campaign of the indigenistas for the protection of the Indians by means of special tutelary legislation was largely based on two interrelated types of arguments: first, presenting the Indian as a victim of a long chain of abuses, exploitations and acts of violence and repression, in the past and mainly in the present. The second type of argumentation focused on constructing the image of the Indian as a powerless, incapable person, unable to defend his citizen rights by himself due to his miserable social situation and moral condition. The Indians’ condition was often presented as equivalent to that of minors, persons without legal capacity and even missing persons. The members of the Asociación Pro-Indígena wrote already in 1915 that "the personality of the Indian almost does not exist”. Therefore they recommended that the State would treat him as a person in a condition of a minor and protect him efficiently until his civil rights are restored.13 In his essay “A Contribution to an Indian Tutelary Legislation”, published in 1918, José Antonio Encinas, one of the more prominent and influential indigenistas in the early 1920s, explained that in order to integrate the Indians into the national life there was a need to provide them with special laws that would protect them, which would take into account the situation of inequality in which they were living and that would enable them to fully exercise their rights. Encinas rejected the claims against dualistic legislation. "Today", he argued in 1918, "The law tends to diversity. The new codes are more interested in the social factor than in the individual one, precisely because the civilization created a deep social inequality that the state must eradicate."14
The idea of "tutelary legislation" for the Indians was clearly manifested in the Peruvian criminal code of 1924. Article 225 of this code set a special punishment for those who put Indians in a situation equivalent or similar to servitude, abusing their ignorance and their moral weakness. Leguía y Martínez, the president's cousin and prime minister in the early years of his government, explained the rationale behind that provision: On the one hand, he pointed to the landlords of the Andean mountain range and the other “exploiters of the Indian race”, who treated the Indians as slaves by acts of abuse that became so scandalous and intolerable to justify a special legislative protection for the Indians. On the other hand, another justification for this special legislation was to be found, according to his explanation, in the alleged ignorance and moral weakness of the Indian that made him vulnerable and incapable of defending his own rights.15 As we have already seen, article 45 of the penal code, which referred to Indian criminals, also expressed the idea that the Indians should be protected (as long as they were classified as semi-civilized or degraded by alcoholism and servitude) – both in its unusual demand to judge and punish them "prudently" and even more practically, in enabling a considerable diminution of their punishment.
However, the idea of "tutelary legislation" was not the only underpinning of the special treatment accorded to Indian criminals in the penal code of Peru. Another important factor was the emergence of what Deborah Poole called “the indigenista criminology” - a discourse that focused on the characteristics of the Indian offender and the causes for his criminality.16 This discourse was, to a large extent, a consequence of the encounter between European positivism (and better yet, positivist criminology) and the Peruvian Indigenismo. A good example of this encounter is also provided by Encinas, in his research from 1919, “Causes of the Indian Criminality in Peru: An Essay of Experimental Psychology”. As an Indigenista, Encinas severely criticized the ills of the Peruvian social order and singled out many of them as main causes for the Indian criminality. According to his view, social inequality, economic exploitation, the system of latifundios, the lack of salary, poverty, expulsion from lands and the consumption of alcohol and coca were among the most evident factors that drove the Indian to break the law. Nevertheless, for him, these factors were not the entire explanation. As a “criminologist”, Encinas also sought the "causes for the Indian criminality" in the mental structure of the Indian, in his psychology, and he did it by experiments and interviews that he conducted with Indian prisoners in various Peruvian prisons.17At that époque and throughout the following years, the issue of "Indian criminality" continued to capture the attention of jurists, criminologists and other intellectuals in Peru such as José Frisancho, Anfiloquio Valdelomar, Susana Solano and Víctor Pilares Polo. Whether their explanations for this "phenomena" were based on environmental, social, economic, cultural, psychological or even biological reasons, they usually portrayed and constructed the image of “the Indian criminal” as a distinctive "type" that deserved separate and special forms of treatment.
This criminological discourse was also manifested in the aforementioned demand of the penal code to consider the fact whether the perpetrator of a certain crime was a "semi-civilized" Indian or an Indian "degraded by servitude and alcoholism" and to pay attention to his mental development, cultural level and customs. Furthermore, also characteristic of this discourse was the fact that major emphasis was often put on restricting the responsibility and diminishing the culpability of the Andean-Indian criminal, who was frequently presented as blameless for his “criminal condition” and as a person whose criminal actions were a result of circumstances beyond his control. This idea was in line with the broader Indigenista argument, according to which the Indians in general could no longer be blamed for the problems and illnesses of the Peruvian nation.
Criminals and Citizens The linkage between the discourse of tutelary legislation for the Indians and the rise of the "indigenista criminology" should turn our attention to another important theme, which is the relation between perceptions of "citizenship" and "criminality". In a different context, Robert Buffington referred to "the opposition of criminal and citizen" as "the fundamental dichotomy within modern Mexican society".18 Of course, not only in Mexico but also in many other places, the criminalization of certain socio-political conflicts; the turning of certain groups or individuals from citizens struggling for their rights into "criminals"; and specifically in the case of indigenous people – the negation of their capability of being political subjects – all of these methods served as mechanisms for the construction of that dichotomy between criminals and citizens.19
However, the Peruvian case is especially interesting for its construction of the image of "the Indian" as neither a "fully capable citizen" nor just an "ordinary criminal". In this respect, we should first pay attention to the historical context in which the indigenista discourse on the need to defend the Indians emerged. While the idea of "tutelary legislation" was based on the construction of the image of the Indian as "defenseless", at the same time the violent conflicts between Indians, landowners and some local authorities in the Andes presented a different picture - a picture of Indians who actually did defend themselves and protected their own rights. The problem was that for the regime in Lima, as well as for large sectors of the Peruvian elites, the idea that the Indians might use violence and even weapons in order to do that was intolerable. The detention of Pedro Zulen in 1919, after encouraging the Indians in Marco to join the army in order to learn how to use weapon not only to defend the fatherland but also to defend their rights is a good illustration of this rejection.20 Hence, the Indians were usually not portrayed as political subjects who were legitimately defending their rights as citizens; on the contrary, their use of violence was quite often described not only in terms of "insurgencies" but also in terms of "criminality".
The above-mentioned text of Encinas, “Causes of the Indian Criminality in Peru” is a good illustration of this phenomenon, since it clearly related the violent social and political conflicts in the Andes to the "problem" of "Indian criminality". In this respect he wrote: “The spirit of the [Indian] race has suffered profound imbalances so that the passions, the most violent ones, would have a determining influence. We simply have to look for the evolution of the spirit of the Indian since the despotic regime of the Incas until his total abandonment in the hands of his exploiters in order to think of his passionate process that keeps growing up, marking that alarming percentage of criminality.”21
In some criminal cases from this period, which referred to certain socio-political conflicts between Indian communities and local landowners, we can also find this "transformation" of Indians from political subjects to "criminals". However, as "criminals" those Indians were also considered to be deserved a special tutelary treatment and a mitigating punishment. In other words, the negation of their capability of being "fully citizens", of acting as political subject - for being "semi-civilized" - was also essential to the justification of a more benign penal treatment that would take into account their "peculiar circumstances". Such, for example, was the case of Lewis Yabar from Marcapata, in the province of Quispicanchi, who was murdered by a group of Indians. According to the penal code, the perpetrators of this crime could expect at least a six-year prison sentence, but in 1925 the criminal court in Cuzco condemned the Indians to only 4 years in prison, implementing article 45 of that code. In reasoning this sentence the court considered the social conditions of these Indians who had been abused and exploited by Yabar and their other neighbors. However the court also took into account the “moral conditions” of the defendants who were described as “Indians with absolutely no education or culture, semi-civilized, lacking a mental development and with semi-savages habits”. Furthermore, the Indians who were convicted in the murder of Yabar were also described by the court as people who acted spontaneously and impulsively, out of furious rage and almost uncontrolled urge for revenge.22 However, a reading between the lines of this sentence reveals quite a different picture: Yabar and his companions, who acted under the authority of the local governor, tried violently to prevent the Indians of that community from sending their representatives to Lima in order to complain against their exploiters. In response, a group of Indians that was quite organized kidnapped Yabar and his companions and held them as prisoners for two days, transferring them from one place to another, before they finally decided to kill Yabar and to release the two other prisoners. The presentations of these Indians as irrational and impulsive criminals, acting out of furious revenge, was in line with the construction of their image as uncivilized human beings with semi-savage customs who lacked proper education and mental development. This representation of their image enabled the court to reduce their punishment significantly, but it also had a price: The criminalization of these Indians and the blurring of the socio-political dimensions of that event by negating the rationality of its perpetrators.23
However, it is important to stress that the provisions of article 45 in the Peruvian criminal code did not refer only to situations of that kind or specifically to crimes perpetrated by "Indians" against "non-Indians". The question whether an "Indian criminal" deserved a mitigating punishment was dependent not so much on the sort of crime and the situation in which it was committed, but to much greater extent on his classification as "semi-civilized Indian". This notion was obviously related to what is known as the Aristotelian concept of citizenship, a principle that referred to citizenship in terms of fitness and capability. This principle, as Deborah Yashar indicated, has been widely applied in the twentieth century to exclude groups deemed unfit to assume the rights and responsibilities of citizenship; and in Latin America, it has been used at different times to deny citizenship (or at least certain citizenship rights) to women, Indians and Blacks.24 In the Peruvian sphere of criminal justice, we can see a close connection between this concept of citizenship and the treatment accorded to "Indian criminals". One of the basic ideas that stood behind the provisions of article 45 of the penal code was that if Indians were situated in conditions of unfitness – the legal system could not continue treating them as fully responsible citizens when they broke the law and therefore it might not impose on them the same punishments that it imposed on "ordinary criminals".
The idea that classification as a "semi-civilized Indian" could serve as a kind of guarantee for reduced penalty was also well internalized by some of the Indians who faced criminal charges. Polonia Amao, for example, who was detained at the prison of Urubamba for injuring her brother, provides us with a good illustration. When she addressed the magistrate pleading her release from detention she claimed that the punishment that might be imposed upon her could never be more than one year (in prison), "since I, as an Indian, lacking education (carente de cultura) have limited responsibility, in accordance with article 45 of the Penal Code".25 Thus, Polonia Amao addressed the court not as a citizen who asked to be treated equally, but as a "semi-civilized" Indian who reminded the court of the special "privileges" that arose from her condition as an "unfit citizen".
Yet, the combination of indigenismo with criminal law produced an additional argument that referred to the concept of citizenship from another point of view - from a perspective that took into account not (only) the responsibilities of the individual citizen but rather the duties and obligations of the society and the state towards him. In his report from 1923 about "the Indian criminality" in Puno, Anfiloquio Valdelomar from the Supreme Court of Puno and Madre de Dios expressed very clearly his opinion about the responsibility of the Peruvian society at large for the problem of "Indian criminality": "[...] in societies like ours", he wrote, " in which the individual, since his birth, is left to his own devices, and moreover, is pushed into crime, encouraged by alcoholism and deprived of work and education […] in societies like ours, of a total disorganization, in which the society goes against the individual, the punishment should be lessened, by reducing part of the penalty in accordance with the responsibility of society itself."26 This demand was in line with a much broader indigenista discourse that accused the state of abandoning the Indian in the hands of his exploiters; of depriving him of education and justice; and in general, of being responsible for his miserable condition. This situation, according to Valdelomar, also should have had some clear legal consequences in the field of criminal justice. Thus, the Andean-Indian criminal, who was classified as "semi-civilized or degraded by alcoholism and servitude", was considered as "semi-responsible" for his actions not just because of his allegedly incapability "to assume the rights and responsibilities of citizenship" but also because of the responsibility of the state itself and the society at large for his “miserable condition” and consequently for his criminal acts.
The legal status of "semi-civilized" Indian criminals in the Peruvian penal code differed not only from that of "ordinary" or "civilized" offenders but also from the status of another ethno-legal category of criminals – those who were classified under section 44 of that code as "savages". If "semi-civilized" Indians were considered as not fully capable citizens; the "savages" - the indigenous inhabitants of the jungle area - were perceived as the complete opposite of "civilized citizens", as human beings who lived totally outside the political and legal community of the state, completely unaware of the world around them. Where offences were committed by those "savages", section 44 of the penal code required the judge to consider their "special condition" and then enabled him to replace sentences for imprisonment by assignment to a penal agricultural colony for an unspecified period of up to 20 years, irrespective of the maximum duration of the sentence that the offence would entail if it had been committed by a "civilized man". Indeed, upon the completion of two-thirds of that sentence the "savage" Indian offender could gain his conditional release, but that depended on his assimilation into "civilized life" and his adaptation into "the legal framework of the country".27
Thus, by these legal provisions the Peruvian criminal code accorded different treatment to different "kinds" and "categories" of citizens, according to their "grade of civilization". As Hurtado Pozo argued, the Peruvian legislator had adopted an assimilationist vision according to which the criminal law was meant to serve as a tool for the assimilation into “civilization” of those savage groups who were living outside of it.28 The image of Peru, as reflected by its criminal code, was an image of a well-divided society, composed of civilized, uncivilized and semi-civilized human beings. This was of course an ethnocentric view that placed the “civilized man” or in other words, the western human being at the top of the evolutionary ladder and the “primitive” or “savage” man at its bottom.29 In-between was located the semi-civilized Indian who represented in fact the majority of the Peruvian population. In accordance with this hierarchical and racial-cultural perception, different categories of Indians required different penal treatments, considering their location on the evolutionary scale. However, it was not just about evolution and assimilation. From the comparison of sections 44 and 45 of the criminal code it is clear that the Peruvian legislator refrained from according the “savage” the same benign and protective treatment that it gave to the Indian classified as “semi-civilized or degraded by servitude and alcoholism”. The judges were not required to treat the “savages” prudently or to consider their customs (only their “special condition”). More important, they did not have the simple option just to mitigate their punishment without any use of alternative “security measures” such as penal agricultural colonies (which in reality were not even established30) as in the case of the semi-civilized.
In my view, the main explanation for this gap between the treatments of these two categories of “Indian criminals” is to be found in the socio-political arena. The “savages” were considered not only as a social group living on the outskirts of the Peruvian society and the modern world, but rather also as those who were at the margins of “the Indian problem” and the indigenista discourse. Demographically, the “savages” or the Indians of the Amazon basin were a small “group” relatively to the other indigenous populations in Peru; they were considered as people totally living outside the economic system of the country; from a cultural point of view they were not related to the glorious ancient civilizations that became part of the national pantheon; and politically, they were not part of “the Indian revolts” that drew the attention of the Peruvian elites to the social order in the Andes and to the need for a solution to “the Indian problem”. Therefore, it is not surprising that for the leaders of the Asociación Pro Indígena, the main governmental efforts to protect the Indians were to be devoted to the support of the Andean-Indians “who were not savages”, those who were living “at the heart of Peru”, allegedly protected by the laws but in reality subjected to expulsion and exploitation.31 Article 45 of the Criminal Code was meant not only to assimilate and “civilize” those Indians when they violated the social order, but also, at least to some extent, to protect them, as victims of the same order.
The act of drawing the internal ethno-social boundaries of the national community was done in the sphere of criminal justice not only by those who drafted and approved the Peruvian Penal Code but also by the courts that had to implement it and to determine, inter alia, who was a "semi-civilized Indian". In many cases the Peruvian courts did not take this question very seriously. Usually they classified the accused into this category as something that was almost taken for granted, as a fact which did not require any further explanations, except for indicating that the accused was "an analphabet Indian", of a "low cultural level" or even "without any notion of culture", as in the case of the Espinoza brothers.Nevertheless, in some cases the mere classification of the accused as a "semi-civilized" Indian was in dispute. For example, in the late 1930s, a man who had been charged with raping a teenager and steeling her money was sentenced by the Criminal Court in Cuzco to only one year in prison. The prosecutor had demanded for the defendant 3 years of imprisonment but the Court rejected his demand, considering the fact that the accused was an Indian who should be judged according to article 45 of the Penal Code. The Supreme Court in Lima overruled that decision, indicating that the defendant, although being an Indian, was a shoemaker that knew how to read and write, and therefore could not be considered as a "semi-civilized Indian".32
In another case from that period, the Criminal Court of Arequipa sentenced three individuals that had been convicted for robbery to 18 months imprisonment, taking into account their condition as "semi-civilized Indians". However, the prosecutor of the Supreme Court in Lima convinced the judges that this classification was wrong. According to him, “the inhabitants of the Province of Arequipa cannot be considered as ‘semi-civilized’ merely for not knowing Spanish and being illiterate. The legal concept of the ‘semi-civilized’ is that of a man who lives a primitive life, outside of any center of culture, who is ruled by the moral principles whose retarded and ignorant intelligence imposes on him”. “Uneducated as the Indians of Arequipa may be”, he concluded, “They do not ignore the significance of acts like the one on trial”.33 These and other cases demonstrate, inter alia, how the ethno-judicial classifications could vary between the capital and the provinces, depending on the perspectives taken by different judges and prosecutors who contributed to the delineation, blurring, and refashioning of ethnic, social and cultural demarcations within the national community. As will now be illustrated, although living under a different criminal legislation, Mexican jurists and other indigenistas have made a quite similar contribution to reshaping the image of their own national identity.