High Stakes in Mexico’s Choice on Justice System Reform

Mexico’s new president, Enrique Peña Nieto, has called for dramatic reform of the country’s troubled justice system; in December he outlined proposals to establish a unified criminal code, and unified code of criminal procedure, that would apply in all the states of the country’s federal system. The measure is aimed at bringing uniformity to Mexico´s different state and federal justice systems that often punish the same crime differently.

But if not properly implemented, these proposals could actually worsen one of the most acute problems facing Mexico’s justice system: the vast number of people who end up waiting years in overcrowded and dangerous prisons, awaiting trial.

President Nieto’s proposals come as the Mexican justice system is already undergoing significant changes. Constitutional reforms in 2008 called for the country’s 31 states, federal district, and federal system to shift by 2016 from the traditional civil law based on a written trial system, to an adversarial system based on public oral trials. In place of guilt being determined by a judge on the basis of written submissions, the new adversarial model envisages trials, with the state prosecutors confronted by a robust public defense.  The shift, together with related reforms of police investigative procedures, is aimed in part at reinforcing respect for the presumption of innocence by evening the balance between the prosecution and the defence. Open testimony from the accused in court also diminishes the weight placed on written confessions, which can be extracted by torture and mistreatment from a suspect in pretrial detention.  

If Mexico adopts a unified criminal code, then sates would be required to adopt a standardized model for an adversarial-based system. But what model should be chosen?

The state of Chihuahua, which has already adopted the adversarial model, is being touted as one of the potential models of the new system. A study by the Wilson Center, for instance, ranks Chihuahua as the most effective at implementing the reforms, recommending it as an example of best practices to be used by the Unified Code.

But Chihuahua is a dangerous model for national reform because of it subsequent counter reforms. Rather than improving human rights protections, the recent modifications to its new system has actually eroded the rights of prisoners held in pretrial detention. Even Chihuahua judges express fear that using Chihuahua as a model for national reforms would make pretrial detention abuses worse, not better.

So what went wrong? Chihuahua was the first state to begin the transition to an adversarial system in 2007 (only a handful of other states have followed so far). As part of the reforms, Chihuahua allowed for pretrial release of defendants, something almost unheard of in the traditional system. But at the same time Chihuahua was caught up in Mexico’s national surge in drug related crime.  Drug related homicides went from about 2,000 per year in 2007, to 12,000 in 2011. The state’s criminal justice system was overwhelmed, while an inadequate supervision of pretrial release discredited the concept. Some critics erroneously blamed the new justice system for the rise in crime; strengthening defendants’ rights was not a popular cause for politicians.

Chihuahua slowly began chipping away at due process and human rights protections. Over four years, a set of “counter-reforms” expanded the authority of the police and prosecutors, and limited the rights of defendants. The state government expanded the list of “grave” crimes that require automatic pretrial detention, going even beyond what the constitution allows.

The result is that the prisons in Chihuahua are overflowing with pretrial detainees, just as they were before the 2007 reforms. The situation for juveniles in pretrial detention is actually worse. Under the traditional system, juvenile defendants would be in pretrial detention for a month or two at the most. Now, it is typical for juvenile defendants to be detained before trial for a year or more, according to the head juvenile justice magistrate in the state. In his opinion, many defendants that are currently in pretrial detention could await their trial in liberty.

Supporters of the Chihuahua model argue that it enabled the state to complete the transition to the new adversarial system faster than any other state. Now, a higher percentage of court cases in the state are handled under the new system than in other states, thus enhancing defendants’ rights. These are undoubtedly positive gains.

But the Chihuahua model is compromised by the continued high levels of unnecessary pretrial detention that resulted from the push back against reform. That reaction was rooted in the state’s failure to establish a system that would have allowed a pretrial release scheme to work properly. 

Such a system does exist in Mexico. With the support of the Open Society Justice Initiative, the State of Morelos has created a pretrial release agency (UMECA) which provides both the prosecution and defence with a risk-assessment report on each detainee, based on interviews and background information. The risk assessment report enables the courts to make better-informed decisions about release. UMECA is then responsible for supervising defendants on pretrial release. The Morelos pretrial model is now being adopted by other states.

Proposals to standardize procedures and codes represent both a risk and an opportunity. On the one hand, a unified criminal code could permit the states or even require the states to implement limits to pretrial release similar to Chihuahua. This could undermine effective pretrial release programs like UMECA in other states. On the other hand, a Unified Code that uses UMECA as a model could support better pretrial justice in Chihuahua and the rest of Mexico.

Human rights advocates must be engaged in this discussion. Mexico needs a solution that creates a modern, transparent criminal process that respects due process and the presumption of innocence.