The effectiveness of a criminal justice system can be measured against its capacity to deter crime. If potential criminals perceive that they are likely to be penalised, whatever benefits they are seeking to reap from engaging in criminal activities are likely to be tamed. By raising the costs associated with criminality, the prosecution of crimes is part and parcel of what is required to keep crime levels to a minimum.
Evaluating the effectiveness of Mexico’s new criminal justice system (NCJS) is however elusive, mainly as a result of the conflation of factors affecting crime in Mexico. This is particularly relevant in a country where the prevalence of organized crime, the obtainability of firearms and high levels of income inequality are conducive to violence and the activities that fuel it.
Meanwhile, impunity remains a nationally pervasive phenomenon at a time when 91 percent of crimes go unpunished. This is largely due to the poor capacitation of law enforcement agencies and ensuing malpractice by public officials. Consequently, the capacity for the criminal justice system to dissuade criminality is undermined by the underlying socio-economic conditions and deficiencies in the ability to enforce the law in Mexico.
With this in mind, it is important to adjust expectations over the intended impact of judicial reforms. Given the difficulties in implementing Mexico’s NCJS at a national level, it will take time for its intended effects to take hold. CIDAC, a Mexican think tank, projects that it will take at least 11 years.
The capacity for the criminal justice system to dissuade criminality is undermined by the underlying socio-economic conditions and deficiencies in the ability to enforce the law in Mexico.
In 2008, a constitutional reform passed by the Mexican Congress introduced the NCJS. Following an eight year transitional period, the NCJS was officially implemented at the federal level and across all 32 Mexican states on 18 June 2016. The landmark legislative reform was lauded for its potential to tackle impunity and the corruption that feeds it. Its nationwide application has however been slow (albeit to varying degrees across states) at a time when the level of peacefulness has deteriorated for the first time since 2011 – as measured by the overall Mexico Peace Index (MPI) score.
The implementation of the NCJS has coincided with a rising trend in homicide rates. Between 2015 and 2016, the homicide rate increased by 18 per cent – the steepest increment in the last five years. This surge can be attributed to the fact that, in 2016 alone, three quarters of Mexican states saw a rise in their homicide rates, with levels more than tripling (232 per cent) in Colima and more than doubling (108 per cent) in Veracruz, for example. As a result, questions have been raised over the intended effects of the NCJS.
But the capacity for the NCJS to deliver on its potential may be hindered by the confluence of factors undermining the rule of law in Mexico. Indeed, the ability to enforce the tenets of the new system is already being hampered by the lingering practices and consequences of the old system, not to mention the little time that has elapsed since the NCJS was enacted as law. It is therefore necessary to consider the time lag with which the effects of the NCJS will be felt.
Tenets of the New System
The NCJS has been designed to reinforce the authorities’ capacity to identify and penalize crime perpetrators, as well as their ability to provide due process safeguards – both for the victims as well as the culprits. Its transformation from an inquisitorial to an accusatory system places the presumption of innocence and the respect for human rights at the core of criminal procedure – making it both fairer and more humane.
The separation between the agents that present the charges and the ones that make the judgement is aimed at reducing the margins of impunity. Indeed, the requirement to involve three independent judges in all trials (juez de control, juez de juicio oral and juez de ejecución) serves to counter judicial fraud. Under the new system, trials are now oral and open to the public, creating new avenues for cross-examination of evidence presented by all parties – a measure aimed at reducing the risk of wrongful convictions.
This is of particular significance in a country where misconduct by police officers and malpractice on behalf of the judiciary has undermined the integrity of the rule of law. The distorted incentives for police and judges to frame suspects in order to meet quotas or obtain bonuses have exacerbated prison overcrowding through pre-trial detention practices. With state actors being recurrently involved in the facilitation or perpetration of crimes (oftentimes in collusion with drug cartels) as well as the use of torture to extract confessions, the introduction of new mechanisms to hold transgressing public officials accountable is promising.
The separation between the agents that present the charges and the ones that make the judgement is aimed at reducing the margins of impunity.
While the judicial technicalities of the new system represent an improvement on paper, it remains difficult to implement in practice. The fact that the Mexican Congress approved the operational and procedural aspects of the new system only three days prior to the 2016 deadline sheds light on the muddled process in which the reform has taken place.
This was compounded by fact that the Technical Secretariat mandated to manage and coordinate the launch of the NCJS (Secretaría Técnica del Consejo de Coordinación para la Implementación del Sistema de Justicia Penal, SETEC), did not have a budget until a year after the approval of the reforms in 2008. Moreover, while MXN$ 484 million (US$25 million) was earmarked to train officials, 88.7 percent of police officers and 94.4 percent of penitentiary staff had not received training by the end of 2015.
In addition, on the eve of the 18 June deadline, only four states were considered to have fully operationalised the new system: Chihuaha, Coahuila, Nuevo León and Yucatán. Meanwhile, states with high crime rates like Tamaulipas, Guerrero, Jalisco and Baja California continue to fall short of meeting the full criteria of the NCJS. This is not least due to the difficulties they continue to face with organised crime, but also the result of judicial backlog and the amount of pending trials that will need to be carried out under the rules of the old system.
Pros and Cons
Some encouraging facets of the new criminal justice system have however surfaced. At the national level, the average time required to resolve a case has reportedly dropped from 180 days to 34. Moreover, in Mexico City, prison overcrowding dropped by 70 percent in the first months of the NCJS implementation. This was partially attributed to new provisions allowing certain types of crimes to be resolved via mediation procedures, as opposed to by the courts. In states like Baja California Sur, Morelos and Nuevo León (three early adopters of the reform) the share of detainees in pre-trial custody dropped by 20 percentage points.
The introduction of a wider range of bail measures under the new system could potentially grant temporary freedom to those incarcerated without a trial. This, however, could stoke fears of insecurity among citizens who might deem this to undermine the judicial rigour with which pre-trial detainees are released. Moreover, the due process exceptions applicable to organized crime activities are ambiguous enough that they can be prone to abuse, particularly in the provision of safeguards for suspects.
As of January 2016, 41.4 percent of inmates in Mexico were still awaiting trial. This is supported by the fact that a total of 21 states had higher rates of detention without a sentence in 2016 than in 2011. Notable among them are Nayarit, Sinaloa, Quintana Roo, Mexico State, Durango and Coahuila — whose rates more than tripled during this period. Out of the states who saw their rates go down, the largest drops were recorded in Mexico City and Tabasco, at 74 and 57 percent, respectively.
Unsentenced detention is unconstitutional in most cases in Mexico, but it has been widely used in practice. Pre-trial detention in Mexico has been shown to cost more than $10 billion pesos (US$500 million) and can have detrimental effects on the rule of law. Moreover, there are risks associated with higher incarceration as criminal networks can proliferate inside prisons. As of July 2016, Mexico’s prisons had exceeded their capacity by 12 percent, with some states recording much higher rates. Nayarit and the state of Mexico, for example, each had more than twice as many inmates than prison capacity. And while a certain amount of pre-trial detention is sometimes necessary, excess incarceration may increase the risk of crime and violence in future. This is particularly pertinent at a time when 65 percent of citizens reported to feel insecure at the municipal level – in a country where four of its cities were ranked amongst the most dangerous in the world.
Notwithstanding, a noteworthy trend explored in the 2017 Mexico Peace Index is the significant increase in justice system expenditure. It is suggestive of the federal government’s shifting focus away from military or domestic security spending. Indeed, while the federal government spent 60 cents on justice for every peso spent on the military and federal police in 2011, this ratio improved to 94 cents in 2016. The increasing levels of investment in justice might well indicate the authorities’ acknowledgement to move away from the militarisation of public security: a phenomenon that led to counterproductive outcomes throughout the ‘war on drugs’, as explored in section four of the 2017 MPI.
Delivering a Public Good
The new system’s potential to deliver on its promises remains a tall order. This is largely the result of the poor capacitation of law enforcement agencies and a lack of trust in the authorities’ ability to serve justice. Combined, they affect citizens’ confidence in the enforcement of the law, which in turn aggravates their propensity to report crimes. The consequent scarcity of data on crimes and judicial procedures hinder on policymakers’ ability to tailor measures aimed at reducing both crime and impunity on a national scale.
As a middle income country that is part of the OECD and the G20, Mexico remains an international laggard in its capacity to enforce the law. By comparison to its peers, Mexican authorities continue to struggle with the provision of a public good as fundamental as justice, not to mention security. Although the seemingly (tentative) shift away from militarised approaches to public security and fledging efforts to implement the NCJS remain promising, much remains to be done by way of bringing criminality under control while at the same time reducing the degree of impunity.