WOLA: Advocacy for Human Rights in the Americas
4 Sep 2015 | Commentary | News

Mexico Must Prioritize Quality over Quantity in Judicial Reform Process

On September 2, Mexican President Peña Nieto gave his annual state-of-the-nation speech in which he delivered a long list of advances and successes made during the third year of his administration, despite a human rights crisis, stalled economic growth, and widespread mistrust of the country’s institutions.

Rule of law is among the areas in which President Peña Nieto announced achievements, including progress in implementing Mexico’s new criminal justice system. “We have joined efforts with the states to consolidate the transformation of the Criminal Justice System in the time and manner mandated by the Constitution,” the president asserted. While it is true that significant efforts are currently being made to reform Mexico’s judicial system, it is still too early to claim victory in their implementation.

Mexico’s New Criminal Justice System

Mexico’s criminal justice system has been widely regarded as inefficient and plagued by corruption, significant case backlogs, and a failure to secure convictions. In 2015, the World Justice Project ranked Mexico’s criminal justice system 93 out of 102 countries in its annual Rule of Law Index. Based on citizen surveys, Mexico’s National Institute of Statistics and Geography (Instituto Nacional de Estadística y Geografía, INEGI) has estimated that only 9.9 percent of crimes are ever reported and that preliminary investigations are only opened for 6.2 percent of all crimes committed in Mexico. This means that approximately 93.8 percent of crimes are never investigated in the country.

Recognizing the shortcomings of the justice system, in June 2008 the Mexican Congress adopted a series of sweeping constitutional reforms designed to make its criminal justice system more effective and transparent, and safeguard human rights protections. Given the magnitude of the reforms, Mexico’s Congress established an eight-year period for the reforms to be implemented. With only ten months remaining before the June 2016 deadline, progress in implementing the historic reforms is uneven across the country and significant challenges remain.

The reforms transform Mexico’s judicial system from a quasi-inquisitorial model, in which most evidence is presented in written form to the judge, and the proceedings take place largely outside of the public view, to an adversarial, accusatorial model in which the prosecution and defense present competing evidence and arguments in open court. Affecting virtually all areas of the criminal justice sector, the reforms also establish new functions for law enforcement agencies; introduce alternative case resolution methods, such as mediation and plea bargaining, which encourage less serious crimes to be handled outside of court; create new categories of judges for each stage of the criminal proceedings; and outline important protections for the rights of the accused, such as the presumption of innocence and an adequate legal defense.

Progress and Ongoing Challenges

During his September 2 speech, President Peña Nieto reported that the adversarial criminal justice system is fully operating in six states (Chihuahua, Durango, the State of Mexico, Morelos, Nuevo León, and Yucatán) for crimes under state jurisdiction, and that it has been partially implemented in 25 states. At the federal level, the new justice system is operating in eight states (Durango, Puebla, Yucatan, Zacatecas, Baja California Sur, Guanajuato, Querétaro, and San Luis Potosí) and six additional states are expected to implement the reforms for crimes under federal jurisdiction by the end of 2015. (Only Sonora has yet to make implementation progress.) The president’s Third Governmental Report (Tercer Informe de Gobierno) asserts that six out of every ten Mexicans have access to the reformed justice system, leaving around 40 percent of the country under the old system with only ten months to go before the mandated deadline.

What’s more, meaningful governmental evaluations of the reformed systems—such as the preparedness and performance of judicial actors during oral trials, the quality, scope, and consequences of the alternative resolution processes, and the overall quality of justice being served—are lacking. Performance indicators and assessments must be a priority of the Mexican government in order to enshrine best practices and continue to adapt to obstacles. Without this monitoring, any progress made is at risk of being superficial or short-lived, as falling back into familiar habits is tempting.

Additionally, the reforms require trainings for all those involved in the new criminal justice system. Prosecutors, defenders, students, and educators must be trained in the new regulations and how to present oral arguments in open court; judges must be prepared to assess the arguments presented and determine a verdict; and police and forensic experts must be prepared to effectively investigate a case.

According to data from the Technical Secretariat for the Implementation of the Criminal Justice System (Secretaría Técnica del Consejo de Coordinación para la Implementación del Sistema de Justicia Penal, SETEC) only approximately five percent of Mexican police officers have been trained on the criminal justice system reforms. This is especially significant given that the 2008 judicial reforms grant all police certain investigative powers, whereas before only investigative police under the control of the Public Prosecutor’s Office (Ministerio Público) were responsible for investigating cases. This means that 95 percent of Mexican police officers (over 333,000 agents) not only need to learn the new justice system but also how to how to conduct successful and rights-respecting criminal investigations, including crime scene preservation, evidence collection, and preliminary interviews with witnesses.

Qualitative vs. Quantitative Results

President Peña Nieto’s third report cites that the reformed justice system has reduced the length of legal proceedings, from an average of 180 days to 78 days, and to 27 days when alternative resolution methods are used. Under the new justice system, alternative resolution methods—such as mediation, in which the parties involved in a conflict negotiate and agree upon a solution (often compensation) outside of court—are seen as key to reducing case backlogs and the costs of criminal proceedings. While alternative means are important and supply judicial actors with a variety of options for resolving cases effectively, their ultimate success depends on their appropriate use.

In February 2015, Mexican think-tank FUNDAR analyzed the faster case resolution times in Oaxaca under the new justice system and found that in cases of domestic violence, for example, the quick turnaround times resulted from the heavy use of plea-bargaining, in which the accused admits guilt and then often receives a reduced sentence from the prosecutor. In Oaxaca, domestic violence is classified as a serious crime, meaning public prosecutors should bring the case before a court and not allow the accused to be freed on bond without a trial. As a result of the use of plea-bargaining, many domestic violence cases in Oaxaca were resolved by paying a small fine between MXN$2,000 and MXN$5,000 (approximately US$120 to US$300), even in cases of grave abuse. President Peña Nieto reports that in 2014 alone, 10,640 cases were resolved through plea-bargains. If quantitative results, such as the number of cases resolved or the length of proceedings, remain the standard measure of success, judicial actors may continue to prioritize quick and easy solutions over the quality of justice served.

Additionally, in districts operating under the new justice system, there have been reported incidences of judges requesting the case file from the public prosecutor before going to trial. This is in clear violation of the reforms, as it may affect a judge’s impartiality and can create prejudices before a trial is heard. These instances, alongside cases of the heavy-handed use of alternative justice solutions, could suggest that judicial actors working in the new justice system do not feel confident holding a trial in open court, and reinforce the need for qualitative assessments of trainings and performance. A 2012 review of the reformed justice systems in five states, supported by USAID, found that many of the judicial actors were not sufficiently trained in the new system and rather learned as they went along.

Regarding infrastructure and equipment, the reforms require the construction of new courtrooms suited for public oral trials. In addition to efforts undertaken at the state level, new Federal Criminal Justice Centers, equipped with new courtrooms, have been built in eight states in 2015. While the completion of new courtrooms is a step forward, holding an effective oral trial depends significantly more on the judicial actors than on proper room arrangements. As the implementation process moves forward at the state and federal level, more focus should be given to the quality of the trials being conducted in these courtrooms and whether all judicial actors are fully prepared to make good use of them.

With ten months remaining, Mexico may not fully meet the June 2016 deadline. Rather than rush to check boxes, meet requirements, and present immediate results, what is important now is to continue to work steadily to overcome obstacles and achieve established goals, even after the 2016 deadline is reached. Building a firm foundation of well-prepared personnel will help to ensure that these historic reforms will have meaningful and lasting effects in the country.