Why It’s important for Human Rights and the Rule of Law
1. What are the reforms to Mexico’s criminal justice system?
On June 18, 2008, Mexico’s Congress amended the country’s Constitution to establish a new criminal justice system (Nuevo Sistema de Justicia Penal) that shifts from a written-based system to an adversarial, oral-based system in which the prosecution and defense present competing evidence and arguments in open court. Because the new system required updating many of the country’s laws and institutions and changing the entrenched practices of justice system officials, Mexico’s 31 states, federal district, and federal authorities were given eight years to transition to the reformed system.
The deadline to implement the new criminal justice system in Mexico officially passed on June 18, 2016, but there have been serious obstacles to making it fully operational.
2. Why is it important?
Mexican authorities have heralded the new system as the most ambitious tool to counter the high rates of impunity and corruption that prevail in the country. The most recent official victimization surveys from 2015 show that over 92 percent of crimes in the country were not investigated or reported to authorities and less than 15 percent of criminal investigations in the country end in a conviction. According to prison surveys, 55 percent of detainees who pleaded guilty did so after being subject to some form of harassment by the prosecution.
Before the reforms, criminal investigations in Mexico mostly relied on illegal practices—such as torture, forced confessions, and intimidation—and poor investigative techniques. The new system incorporates the presumption of innocence and respect for human rights as core principles of criminal investigations. The role of the police is also different: they can now receive crime reports and act as “first responders” responsible for preserving crime scenes (before only the public prosecutor’s office had these responsibilities).
3. What is the status of implementation?
The lack of systematized and clear information from the government makes it difficult to know precisely the gaps and flaws that remain to make the new system fully operational. Mexican officials have confirmed that the reformed system is operating to some degree in all of the states and for federal crimes. However, for crimes under state jurisdiction, it is only considered fully operational in four states. This is due to the fact that states started the implementation process at different times. For instance, the state of Chihuahua had an adversarial system in place before 2008 whereas the state of Guerrero just started the implementation of the new system in 2014.
While Mexican authorities assert that the implementation of the new system is a “mission accomplished,” its full implementation must be seen as a long-term objective in Mexico. Delays in passing legal reforms, backlogs from the old system, and the incomplete training of justice system authorities led the Mexican think tank CIDAC to estimate that it could take 11 more years before the new system is fully operational, meaning that people prosecuted in Mexico may not fully benefit from the safeguards of the reformed system until 2027.
4. What happens to the cases that were started in the old system?
Cases conducted under the old, written-based system will continue and be processed under it. This means that for an unknown number of years, prosecutors, judges, and defense lawyers in Mexico will process cases under the old system and the new system simultaneously.
5. What still needs to be done to make the new system fully operational?
The Mexican Congress still has to pass important laws for criminal investigations under the new system, notably General Laws on Disappearances and Torture. The thousands of cases opened under the inquisitive or “old” system, which has faced backlogs for decades, need to be processed and concluded. Training needs to continue for all actors involved in the justice system—judges, prosecutors, public defenders, private lawyers, police, and forensic experts—so that they are well prepared and can effectively operate in the new system. Finally, authorities need to conduct assessments and better track progress toward full implementation of the new system.
6. How can U.S. assistance be helpful?
The U.S. government should continue to provide robust support for judicial reform efforts in Mexico. This support should ensure that USAID and the Department of Justice are coordinating their training and technical assistance, including mechanisms to measure the impact of U.S.-supported training. Likewise, it’s fundamental to continue supporting civil society organizations that carry out independent assessments of the reformed justice system.
