Saturday, April 11, 2009

Regime of Exception: Mexico's Two-Track Justice System

US-funded Judicial Reform Creates Two Justice Systems: Citizens and Enemies of the State

by Kristin Bricker

When the US Congressed passed $700 million in funding for Mexico's drug war as part of the Merida Initiative, it included $35 million under the Economic Support Fund (ESF). At least $20 million of ESF funds will be used to support Mexican judicial reform.[1]

US funding for Mexican judicial reform isn't new. USAID, which will administer the bulk of Plan Mexico funds, has provided technical assistance for judicial reforms in Mexico since at least 2005. Specifically, USAID has supported Mexico's transition from an inquisitorial written system to an accusatorial oral system (the latter being the judicial system the United States uses).[2]

Mexico's transition to an accusatorial oral system took a giant leap forward with the 2008 legal reform, which included several changes to the Mexican Constitution. The reform, which will take eight years to be fully implemented, was proposed by President Felipe Calderon and approved (with modifications) by Mexican Congress. In its report "Human Rights Under Siege: Public Security and Criminal Justice in Mexico," the Miguel Agustin Juarez Human Rights Center (Centro Prodh in its Spanish abbreviation) notes several positive and significant changes to Mexico's legal system under the 2008 reform:
  • The adoption of an accusatory, oral criminal justice system. Following years of advocacy by civil society, academics, and experts in this field, Article 20 of the Constitution now explicitly establishes a criminal justice system based on oral trials for criminal defendants, to be implemented gradually over the next seven years. In establishing an accusatory and oral system for criminal trials, Mexico at last joins the established trend in such judicial reform throughout Latin America.
  • The explicit recognition of several due process rights. Article 20 of the Constitution now includes several rights that were not explicitly recognized before. These include the presumption of innocence, the right to an effective defense, the right to remain silent, and that evidence obtained through the violation of fundamental rights, such as through torture, shall be inadmissible.
In making the presumption of innocence a right in Mexico, Article 20 also moves away (in some cases) from Mexico's much-criticized policy of preventative detention, in which defendants are imprisoned for long periods of time without charge or without being convicted of a crime. Mexico currently has two forms of preventative detention: arraigo (pre-charge detention) and formal de auto prision (pre-trial detention). Preventative detention, especially pre-charge detention, has historically been a central component to Mexico's inquisitorial justice system. Under this system, law enforcement preventatively detains a suspect while it gathers sufficient evidence to bring formal charges. The danger to human rights and due process under this system will be further discussed below.

The reform to Article 20 instructs judges to use pre-trial detention as a last resort in many cases. To borrow Centro Prodh's apt caveat, "if implemented in good faith," the move away from preventative detention would have a profound impact on Mexico's prison population. Centro Prodh notes that approximately 43% of Mexico's prisoners were imprisoned without charge under preventative detention in 2007.

One Step Forward, Two Steps Back
By establishing two separate justice systems in the Mexican Constitution – one for organized crime and another for common crimes – the reforms in effect translate into one criminal justice system for those seen as citizens and another for those seen as enemies of the State. They divide Mexican society into those who possess human rights, on one hand, and those who are seen as enemies first and human beings second. --Centro Prodh, "Human Rights Under Seige"
All of the advances Mexico has made in its most recent legal reform are nulled by the fact that the new rights granted under the reform are not universal. The legal reform creates what Centro Prodh terms a "regime of exception" when it comes to cases related to organized crime. That is, under the new reform, persons accused of organized crime (and in some cases other crimes such as kidnapping, rape, and murder) have fewer due process rights than those who are accused of other crimes. In fact, while suspects accused of "other crimes" (for lack of a better term) have gained rights under the reform, organized crime suspects have lost rights.

The reform did not initiate Mexico's two-track justice system. Prior to the legal reform, the Mexican Constitution already allowed for organized crime suspects to be detained by police without charge or judicial order for up to 96 hours; people who were suspected of committing "other crimes" could only be held for 48 hours. This practice remained untouched in the new judicial reform, which further widened the legal divide between organized crime suspects and other suspects.

One area in which organized crime suspects have lost rights under the new judicial reform is in the realm of admissibility of evidence. Prior to the reform all Mexicans had the right to know who was accusing them of what crime. Under the reform, those accused of "other crimes" retain this right. However, in a move reminiscent of the US government's highly controversial use of "secret evidence," a new constitutional change allows the government to withhold the accuser's name and any information that could be used to identify him/her in the case of organized crime, kidnapping, and rape. When implemented, this change will likely limit a suspect's defense options: the defendant may not have access to all of the testimony against him or her and may not have adequate information to successfully challenge anonymous testimony.

The most controversial change under the new legal reform is the practice of arraigo, or pre-charge detention. Centro Prodh writes that under the arraigo system, "police and prosecutors, rather than being required by law to justify prolonged detention by gathering sufficient evidence to warrant charging someone with a criminal offense, can first place the person under arraigo and then seek evidence that would justify that very detention."

The Chiapas-based Fray Bartolome de las Casas Human Rights Center (Frayba) writes in a recent report on arraigo, "The concept of arraigo has been used in Chiapas in many cases in order to detain innocent people over a long period of time by utilizing means of 'legal' harassment and pressure. It is not necessary to prove corpus delicti [that a crime has been committed] or criminal liability. The Prosecutors use the pretext that it is 'being investigated.' With the concept of arraigo, the authorities have detained in order to investigate, and have not investigated in order to detain.... Under arraigo, the victim is not officially detained even though s/he is in fact [detained]. In reality, s/he has not been accused of any crime, nor is s/he in a legal process. In reality, s/he is deprived of his or her freedom under an ambiguous legal status, almost in a state of defenselessness, therefore violating the rights to presumption of innocence and legal guarantees. It has been proven that the concept of arraigo is used to cause psychological debilitation and depression in the victim and as such to bring false charges."

Currently, arraigo can be carried out either as a form of house arrest or in an unofficial detention center. In an interview with Narco News, Frayba director Diego Cadenas Gordillo explained that some officials prefer to keep detainees in unofficial detention centers because there they are "isolated from their families, isolated from their lawyers, surrounded by police.... They’re under constant pressure in order to break their spirit. Many confessions have came out after long periods of detention under arraigo." Frayba's report on arraigo elaborates: "Generally during arraigo, the district attorney obstructs the work of the defense. The entrance of human rights organizations is impeded, be it to verify the detainees' situation or to assume legal representation of people in arraigo." The detainee's isolation from human rights monitoring organizations, lawyers, and the outside world, explains Frayba in another report, "puts the person under arraigo in a situation of vulnerability. S/he becomes susceptible to physical or psychological coercion to sign self-incriminating statements." Centro Prodh writes, "This logic of ‘detain first and investigate later’ has naturally encouraged the use of torture during the period of arraigo to produce leads regarding the possible participation of the detainee or others in crimes; in this regard, it is worth recalling that torture is a systematic practice in the Mexican criminal justice system that remains in impunity despite the existence of laws prohibiting it.

Arraigo's pitfalls, such as the practice of imprisoning innocent people and the increased risk of torture and ill-treatment, have provoked severe criticisms from the international community. Sergio García Ramírez, president of the Inter-American Human Rights Court, called arraigo "a legal monstrosity." International and Mexican human rights groups have long criticized the practice and have thoroughly documented abuses during arraigo. The United Nations Human Rights Council has declared arraigo to be a form of arbitrary detention and has recommended that Mexico abolish the practice.

Mexico came close to abolishing arraigo in 2005. The Mexican Supreme Court ruled that arraigo was unconstitutional because the practice conflicted with the constitutional rights to liberty and free movement. Despite the Supreme Court ruling, arraigo remained on the books in many states and continued to be a regular practice.

When Mexican lawmakers considered the 2008 overhaul of Mexico's legal system, arraigo was an unavoidable subject because of its questionable legality and continued widespread use. Furthermore, as Mexico strived to take steps towards a legal system based on the presumption of innocence, arraigo--the practice of imprisoning someone without having sufficient evidence to bring them before a judge--appeared to be an increasingly archaic practice. Therefore, lawmakers decided to confront arraigo's unconstitutionality--by changing the constitution.

The presumption of innocence means that people who commit "other crimes" should, in theory, not be subject to arraigo, and should only be subject to other forms of pre-trial detention as a last resort. And--again, borrowing Centro Prodh's caveat--if implemented in good faith, the practice of arraigo should diminish in these cases as the legal reforms are codified into local and national laws over the next eight years.

However, the presumption of innocence only seems to apply to people whom the Mexican government doesn't consider to be enemies of the state. Centro Prodh writes that under the new judicial reform, "In cases of suspected organized crime, Article 16 of Mexico’s Constitution now provides that prosecutors may place individuals under arraigo for up to eighty days." Frayba argues that during those 80 days, organized crime suspects will be held "without the possibility of any recourse for their defense." In another double standard in the presumption of innocence, reforms to Article 19, while discouraging pre-trial detention for suspects of "other crimes," requires pre-trail detention (not to be confused with arraigo, which is pre-charge detention) for suspects accused of organized crime, rape, homicide, kidnapping, violent crimes, and crimes against national security.

Human Rights Watch notes that eighty days of pre-charge detention is “the longest of its kind in any Western democracy. In other countries, the limit for any form of pre-charge detention... is generally less than seven days.”[3] As stated above, the Mexican limit for pre-charge detention for suspects of "other crimes" is 48 hours--that is, 78 days less than organized crime suspects.

The "Organized Crime" Slippery Slope

There is no doubt: Mexico is at war. With well over 8,000 drug-related murders since December 2006 (with 2008's total more than doubling that of 2007); 45,000 soldiers and 5,000 federal police deployed to sixteen states; and martial law in Ciudad Juarez, where at least 7,000 soldiers have taken over all policing duties from local police[4], the security situation in Mexico is getting worse, not better.

As with most wars, human rights abuses are on the rise in Mexico as soldiers take over policing functions from local cops--in addition to being unconstitutional, it is a job the soldiers were simply not trained to do.

Mexico's increasing insecurity--exacerbated by media "violence porn" which chases decapitated bodies rather than striving for deeper analysis--has led to calls for "get tough on crime" laws from some sectors of Mexican society. This includes proposals for reinstating the death penalty in cases of murder or kidnapping--in violation of human rights agreements signed by Mexico. Centro Prodh writes, "In this environment, citizens are increasingly willing to sacrifice their human rights for the appearance of gains in public security, even if past hard-line measures implemented by the government have not translated into lower rates of crime in reality."
death penalty
Translation: Because we care about your life...Death Penalty for Murders and Kidnappers. --The Green Party

The problem, however, with "get tough on crime" laws that create two classes of citizens--in addition to being a violation of international law, which requires equality before human rights law--is the risk of overzealous application of organized crime law. Madeleine Penman, Centro Prodh's Coordinator of International Relations, told Narco News, "Once a government declares 'war' and outlines enemies of the state, this means that people who raise their voice against these hardline tactics are also at risk of being targeted."

Penman directed Narco News to the case of journalist Carlos Solís. Solís covers police matters for El Bravo Matamoros, a Tamaulipas newspaper. Tamaulipas is one of the sixteen states where the army and federal police are deployed in the war on drugs. On September 15, 2008, Solís was driving with another man, Alberto Salas, when they came under fire from Federal Preventive Police officers. The officers' gunfire killed a bystander. Solís and Salas pulled over. According to the information sent by Centro Prodh, the federal police verbally identified Solís "as the journalist who had recently criticized the behavior of some federal police." The Mexican Public Security Department blamed the men for the young bystander's death, completely contradicting eyewitness testimony. The men were tortured during their detention in an effort to obtain self-incriminating statements: plastic bags were placed over their heads, they were burned, and they suffered fractured ribs. Solís and Salas were accused of organized crime and placed under pre-charge detention for 36 days.

In addition to journalists, activists are also at risk for being targeted by the new organized crime laws. Centro Prodh notes that "the broad and ambiguous definition of 'organized crime' in Mexican legislation has allowed state governments to accuse members of social movements of being organized criminals as a means of justifying the arbitrary detention of social activists."

According to the Mexican Constitution, "Organized crime is understood as an organization of three or more people to regularly or repeatedly commit crimes." In contrast, the US Federal Bureau of Investigation (FBI) defines organized crime as: "any group having some manner of a formalized structure and whose primary objective is to obtain money through illegal activities. Such groups maintain their position through the use of actual or threatened violence, corrupt public officials, graft, or extortion, and generally have a significant impact on the people in their locales, region, or the country as a whole." Under the FBI's definition, financial gain, corruption, and extortion are all defining and necessary characteristics of organized crime. The Mexican definition, by contrast, is so vague that a social organization that regularly utilizes civil disobedience as a form of protest can be defined as an organization that participates in organized crime. It is worth noting that there is not a protest permit system in Mexico, meaning that any protest march in a street is illegal. Even though organized crime commonly refers to criminal enterprises that engage in illegal trafficking, Centro Prodh notes, "With the creation of the regime of exception for organized crime through the recent Constitutional reforms, civil society groups thus fear that this new regime of restricted due process rights will be applied as a tool of repression against individuals who protest government policies."

Civil society's fear for activists' safety under the new legal reform isn't based on legal theory; it's based on history. Frayba writes, "Due to the criminalization of protest in Chiapas as well as on the national level, there is an attempt to inhibit social movements by submitting social leaders and/or participants of these movements to abuses in obtaining and administering justice: arbitrary detentions, false charges, torture, and arraigo, amongst other human rights violations. It has to do with the enforcement of a policy of criminalization of social protest as a form of controlling social discontent, increasingly employing criminal legislation in order to confront social protest and its manifestations."

Arraigo in particular has a long history of government abuse. Arraigo has been used against activists and civilians who are unaffiliated with organized crime, even after the Supreme Court declared it to be unconstitutional. Just a few examples:
  • In May 2007--two years after the Supreme Court's ruling on arraigo--the Federal Attorney General's Office (PGR) kidnapped Profesor Jaime González González from the Frente Regional Contra las Privatizaciones ("Regional Front Against Privatization" or FRCP-FNLS in its Spanish initials). The PGR held him under arraigo for 15 days in a security house. He was never charged with a crime. At the time he was the leader of a Chiapas-based movement to stop illegal logging. The harassment against him has continued. On November 12, 2008, unknown assailants broke into his home, searched it, and left a note saying "Just wanted a little bit of information."
  • Diego Arcos Meneses is community leader in Nuevo Tila, Chiapas. His community has resisted evictions in the Lacandona Jungle. When survivors of the 2006 Viejo Velasco massacre took refuge in Nuevo Tila, Arcos went to Viejo Velasco to see if he could help the survivors. On the way to Viejo Velasco, Arcos was arrested. Agents from the Prosecutor's office beat him because he refused to sign a statement without a lawyer present (Arcos is illiterate). The Prosecutor's office then put him under arraigo. While under arraigo, the Prosecutors office collected contradictory statements against him from Nueva Palestina, a nearby community whose residents are accused of carrying out the massacre. Two things are significant about this case. First, Amnesty International notes that "Arraigo places serious restrictions on the capacity of a defendant to access lawyers and to challenge evidence collected by the Prosecutor’s Office." Arcos' ability to legally challenge the contradictory statements against him was limited while he was under arraigo. Secondly, Frayba notes that, as in Arcos' case, most arraigo torture victims are tortured prior to being put under arraigo. "It is also a recurring practice that the victim is maintained in the custody of the same agents who carried out the torture, which makes it possible for the pressure, intimidation, and threats to continue." Therefore, the fact that the Prosecutor's office tortured Arcos before placing him under arraigo is normal. The Prosecutor's office agents may not have tortured Arcos while he was under arraigo, but they already did just prior to the arriago, and then they were the only people he saw.
  • In June 2007, Rusbel Cruz Aguilar (who is not an activist) was accused of aggravated robbery in Chiapas. His family went to Frayba because they said he'd been tortured and then placed in arraigo. Frayba went to the house where he was being held, not as his official legal defense, but to investigate to see if he had in fact been tortured. Chiapas government officials refused Frayba access, impeding their ability to investigate the torture allegations.
  • In one of the most flagrant political uses and abuses of arraigo, the Chiapas government attempted to use arraigo to close down a politically inconvenient school. In 2003, 180 normalistas[5] (poor, rural, socialist students in training to be teachers) and their parents were put in arraigo. The normalistas, students from the Escuela Normal Rural Mactumactzá in Chiapas, were arrested during a protest against the lack of teaching positions available for normal graduates. Some say they were tortured before or during arraigo, including one student who was bleeding from his ear. Some were held for months in arraigo without proper medical attention. At one point during their arraigo, an agent from the SECH (Chiapas Department of Education) visited them and offered to free them immediately and give them scholarships if they transferred out of the normal. They accepted the offer, but the government didn't follow through. Their classmates then had a negotiating session with the Secretary of Education and other government officials, who said that the students and their parents would only be freed if the normalistas agreed to move out of the boarding school and allow the school to be converted into a day school which would not provide it's extremely poor students with the room and board they need to study--in effect, killing the school. The government officials also demanded that the normalistas keep the deal secret. The normalistas agreed in order to free their companeros, but the government again refused to hold up its end of the bargain: it kept 11 students and parents under arraigo. So the normalistas published the agreement. Frayba argues that their prolonged isolation without being able to communicate with the outside world (which lasted for at least a month and a half) is a form of torture.
  • Aureliano Álvarez Gómez is a Zapatista supporter. He was arrested without a warrant on May 5, 2006. He was in arraigo for 56 days, during which he says he was tortured into signing and self-incriminating statement. He was also interrogated about the structure of the EZLN, his role within the organization, and information about Zapatista enclaves in Huitiupan. Based on his self-incriminating statement signed under torture, he was convicted and imprisoned in the notorious El Amate prison in Chiapas. There, prisoners known as "precisos" (bullies who are in cahoots with prison guards) charged $250,000 pesos so that they wouldn't beat him up (generally they charge $6,000). While in prison, the precisos beat him numerous times. On October 18, 2007, he was exonerated and freed.
US Tax Money for Torture

USAID's program for funding Mexican legal reform predates the Merida Initiative and is officially intended to support Mexico's transition to a legal system based on due process rights and the presumption of innocence. However, the USAID recently made it very clear that it wholeheartedly supports Calderon's 2008 legal reform initiative. In his statement before the US House Appropriations Committee on March 10, 2009, USAID Mission Director to Mexico Roger D. Garner testified, "USAID supports President Calderon's efforts to strengthen law enforcement and justice sector institutions that are key to addressing crime and violence... Our Merida [Initiative] programs in Mexico are designed to support those Mexican institutions as they fundamentally change their entire justice system and train an estimated 1 million people in new, more transparent and accountable ways of administering justice." Garner never mentioned the troubling aspects of Calderon's reform, nor that Calderon had proposed even more draconian measures that Mexican Congress rejected, such as warrant-less house searches and warrant-less wiretapping. In his unconditional Merida Intiative cheerleading, Garner effectively gave his agency's seal of approval (as well as its money) to the legal reform that human rights organizations say will surely lead to less rights and more abuses.


[1] Plan Mexico's 2008 funding included $20 million in ESF funds for “implementation of Mexico’s new judicial reforms.” The 2009 funding includes an additional $15 million in ESF funds for "economic assistance and civil society institution building." While the judicial reform is not specifically mentioned in the 2009 bill (the spending plan has not yet been released), USAID has funded judicial reform in Mexico for years.

[2] Centro Prodh writes: In an accusatory system, the accusing party in a criminal process bears the burden of proof, always preserving the distinction between the roles of the
prosecutor, defense, and judge.... in an oral system, the parties present their evidence, which will potentially form the basis for criminal convictions, orally before the judge, in accordance with the principles of immediacy, confrontation, public character, and transparency. These prerequisites are indispensable to ensure a fair trial for the accused and an accurate outcome for all parties involved in a judicial process."

[3] Cited in Centro Prodh, "Human Rights Under Seige."

[4] Some reports say 7,000, some say 8,000. For a breakdown of the number of soldiers in proportion to the number of civilians, the number of soldiers per square mile, and other states on the increasing militarization of Juarez, please see "Who Won and Who Lost in Monterrey's 'Narco Protests.'"

[5] For more information on normales, please see "Who Won and Who Lost in Monterrey's 'Narco Protests.'"


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