Rethinking Justice in Mexico: The Case of Morelos

There is not a lot of good news in Mexican justice system these days, a reflection of a dispiriting reality. News reports last week told of a complaint delivered to the International Criminal Court prosecutor’s office, a complaint supported by a public petition signed by some 23,000 people, urging the opening of an investigation into President Felipe Calderón along with his Secretaries of Defense, Public Security, and the Navy, along with uber drug lord Joaquin “El Chapo” Guzman over their respective roles in the drug war, which has killed an astounding 40,000 people since 2006 and resuscitated widespread concerns about widespread torture and forced disappearances.

That story got worse for the government when Calderón threatened legal action against the complaint’s authors, which prompted some 200 people to present themselves at the Attorney General’s office, ready to turn themselves in if Calderón wished to follow through.

In recent years scores of stories have been deeply critical of Calderón’s approach of bringing the military into key states to combat trafficking networks. One widely published Associated Press account last year derided the government’s actions as a failed “catch and release” exercise after reporters obtained government documents showing that of nearly 230,000 drug arrests during the first three years of Calderón’s term, less than a quarter were even charged and only some 15 per cent of  them even reached a verdict. Many detainees, they wrote, bore clear signs of torture. Worse, an analysis of government efforts by National Public Radio reporters last May led them to conclude that officials have systematically favored Chapo Guzman’s Sinaloa cartel—Mexico’s largest richest and oldest—which is believed to have infiltrated virtually every relevant agency and all levels of government.

All of this is fodder for a legal tug of war over the reform of Mexico’s criminal justice system. While state governments are slowly liberalizing their criminal procedure codes, the federal government has insisted that matters within in its jurisdiction, including organized crime, remain subject to many of the old rules, including the ability to detain individuals without charges for up to 80 days. Critics of reform argue that Mexico does not have the luxury of legal niceties that might be appropriate elsewhere, since its law enforcement institutions are compromised and would be unable to meet the evidentiary burdens that new state codes (and legal systems throughout the world) impose on the prosecution before a court will order detention or ultimately convict. With former federal prosecutors making arguments like that, it is no wonder that those seeking justice for the drug war deaths have turned to The Hague.

Against this backdrop, and largely out of the news, another set of Mexican officials is celebrating a modest but promising success. In 2008, officials in the state of Morelos faced a problem, after they reformed their juvenile justice code to include a number of alternatives to putting young defendants in jail while awaiting trial. Morelos judges were no different from their counterparts in other states. They had little experience granting release or choosing supervision alternatives, having traditionally simply consigned the majority of defendants to crowded jails until the prosecution was ready to put the case to trial. There were virtually no organizations experienced in supervising young defendants. Officials knew that an increasingly frightened public (as well as opposing political parties) might make them pay dearly for any mistakes, in choosing who to release. And looming ahead were similar challenges in the reform of the much larger and more complex adult system.

After several months of meeting and planning, Morelos’ governor, Marco Antonio Adame, approved the creation of Mexico’s—and Latin America’s—first pretrial services program. The new unit, developed in partnership with the Open Society Justice Initiative and the Open Society grantee, the Instituto Para la Seguridad y la Democracia (Insyde), was tasked with evaluating individual cases and proposing release and supervision alternatives to detention.

That was 2008. This week, after all the inevitable labor pains, the state’s justice reform coordinator, Myrna Alvarez, was able to report a stunning turnaround: today the majority of juveniles are released to various forms of supervision (carried out by a network of more than a dozen NGOs which was painstakingly developed). More than 90 per cent had perfect compliance rates with the terms of their supervision.

Behind the numbers was a palpable and growing confidence among juvenile judges, one of whom told an audience of police, judges, and lawyers at the state’s Department of Public Security that the arguments at detention hearings used to be “subjective, ideological,” “abstract,” and “devoid of actual facts”. The pretrial services unit’s risk evaluation and recommendations for supervision, he said, made for a “180 degree” shift. A prosecutor from the juvenile prosecutor’s division—which still favors pretrial detention, though less frequently than before—noted that having the unit investigate risk in a professional fashion allows his office to devote more resources to investigating the actual crime.

Prison officials also have reason to applaud; as a result of the decrease in detention orders, they have witnessed a 20 per cent drop in the juvenile detainee population, in a state which faces a serious problem of prison overcrowding. The state’s juvenile detention center is now the only one operating under capacity.

The juvenile system is tiny compared to its adult counterpart; the pretrial services unit, through which all defendants pass, has handled but some 200 cases in its brief tenure. Yet state officials have taken note, and it now seems clear that they are determined to move ahead to with this larger challenge. One can only hope that someone on President Calderón's staff is also paying attention.