In Mexico, the Threats and Failures of Pre-Trial Detention

As violence soars in Mexico, a controversial policy to crack down on crime is disproportionately affecting low-income individuals without improving public safety.

January 13, 2020

Prison in Yucatan (Photo by Kirt Edblom/Flickr)

One evening in late 2002, Reyes Alpízar Ortiz was waiting for the bus when he was approached by four police in an unmarked vehicle and ordered to get in. As they drove away, they informed him that he was being arrested in connection to the 2001 killing of a local government official in the State of Mexico. At the state’s attorneys general office, they denied him a phone call and brutally tortured him until he signed a confession.

Last August, Alpízar was released to his family wearing an ankle bracelet and prohibited from leaving the state. In the nearly two decades Alpízar spent in prison on fabricated charges, his case was never taken to trial. There was never a judge, a verdict, or a formal sentence.

Alpízar was one among thousands in Mexico caught in the throes of the country’s preventive detention laws, part of a public safety strategy that in theory reduces the flight risk of violent offenders, but in practice constitutionally legalizes pre-trial detention and denies individuals accused of certain crimes the right to a fair and speedy trial. One-third of Mexico’s prison population currently awaits a formal sentence.

In a country plagued by violence, impunity, and corruption, the use of prisión preventiva oficiosa (automatic pre-trial detention)—that is, the immediate imprisonment of an individual accused of a particular categorical crime—was framed historically by its proponents as a meansto genuinely crack down on crime by prioritizing the punishment of serious offenses. On the heels of a presidential election in late 2018, members of Congress reignited a fierce debate on the matter. An increase in cases of homicide by firearm mounted pressure on the government to intervene aggressively, with little foresight to the long-term consequences.

In February 2019, Mexico’s MORENA (National Regeneration Movement) majority voted to amend the Mexican constitution and effectively triple the list of offenses eligible for automatic pre-trial detention. The list now includes femicide and forced disappearance, but also extends to include generalized abuses of power by government officials, misuse of public funds, electioneering, and petroleum theft.

The Office on Human Rights of the United Nations warned that the move would only increase the likelihood of innocent people being funneled into an already burdened penal system. Meanwhile, civil society groups expressed concern that broadening the powers of a penal system in need of serious reform alongside the existence of a militarized police force posed credible risks of abuse.

Since the enactment of the reforms, rates of violent crimes have continued to surge, casting further doubts on the effectiveness of a move rife with perverse incentives to fabricate charges and punish dissenters.

So far, the evidence shows that the use and abuse of this mechanism has disproportionately affected low-income individuals without improving public safety.

The 2008 Legal Reforms

Since 2008 and with ample U.S.-backing, Mexico began a slow transition out of a mixed inquisitorial penal system. Under this framework, trials were regularly held behind closed doors and moved forward through written motions while the prosecuting party had the discretion to follow-up on investigations. Under the Partido Revolucionario Institucional (PRI) regime, the system was useful for pardoning allies, jailing enemies, and keeping control of the courts. For decades, it blurred the lines between police and presiding judges, made torture a common currency, and resulted in tens of thousands of innocent people being imprisoned on arbitrary charges.

With assistance from the U.S. Department of Justice, Mexico’s judiciaries adopted an accusatory adversarial system, which instead relies on oral trials, the adoption of alternative dispute resolutions like plea deals, and perhaps most importantly, ensures an accused individual the right to be presumed innocent before and during trial. Some maintain that the transition towards an accusatorial system also relieved American and multinational companies doing business in Mexico from the drawn-out, bureaucratic processes that the inquisitorial system generated when resolving international disputes.

This transition began scaling back on the use of automatic pre-trial detention, starting by reducing the list of offenses eligible for this measure. The move generated pushback from authorities in the Federal Police force and political leaders in the opposition parties, who expressed frustration at the idea of not punishing individuals accused of serious offenses. In 2016, Alfonso Pérez Daza, then an advisor to the Federal Judiciary, went so far as to question whether Mexicans were prepared to be presumed innocent.

Officials like Miguel Ángel Mancera, the Mexico City mayor from 2012 to 2018, preferred to push forward with a “tough on crime” attitude, arguing that loosening the grip of automatic pre-trial detention measures created a revolving door of criminals by incentivizing individuals to continue breaking the law while under investigation and before formal prosecution.

Keeping jails and prisons full, however, remained a costly affair.

Despite some signs of progress between the years 2008 and 2018, within three months of his inauguration, President Andrés Manuel López Obrador (AMLO) also back-stepped on the work the 2008 reforms had accomplished. Making corruption eligible for pre-trial detention aligned well with one of his popular campaign promises: to clean up the system that had protected public officials from facing the law for too long. But in an attempt to break from his predecessors, AMLO inadvertently folded into the strong arm mantra that characterized previous decades, when attaining security meant having to suspend the rights of the people.

An Ineffective Strategy

Written into the text of the decree was the idea that the punitive character of automatic pre-trial detention would deter individuals from committing serious offenses and help lower the size of the prison population, and thus the number of victims of violent crimes.

Thus far, the measure has had at best mixed results, and at worst, the complete opposite effect of what was intended. According to a report by México Evalúa—a Mexican think-tank and advocacy organization—in 17 of 32 states where automatic pre-trial detention rates increased, crime indexes remained the same or continued to rise.

Homicide, one of the most violent and prevalent offenses in the country, remains the crime with most impunity in Mexico, with some states reporting over 90 percent of cases going unresolved in 2018 alone.

“Regardless of how strict the penalty might be, or how many crimes can be eligible for pre-trial detention, this has very little impact on the overall climate of impunity—which says that you can commit murder, you can commit crimes of corruption, any level of violent crimes, without any consequences given the weakness of Mexico’s police system, and the criminal justice system in general,” said Maureen Meyer, Migrant Rights and Mexico Program Director at the Washington Office on Latin America (WOLA).

“I think that the concern on these proposals, looking at it from the broader public security point is…making harsher sentences and adding how many people can be in jail. [It] really basically asks to overcrowd the prisons and does very little to address the security crisis because it’s not necessarily effective in really investigating, or putting the right people behind bars,” Meyer continued.

The controversial deployment of the National Guard—a hybrid civilian-military entity created with another round of Constitutional reforms in March this year—only compounds risks of abuse. With numerous, documented cases of soldiers altering crime scenes when they were involved, shifting evidence, lying about the cases, or accusing the victims themselves of criminal conduct, the reforms do not give any greater faith in the transparency of the penal system. When there is no clear border between arrest, trial, and detention, an individual’s rights are inevitably at risk.

(Photo by Jose Benjamin Montaño)

Behind Bars: Young and Poor, Indigenous Women

In 2014, a woman in the state of Oaxaca named Dolores was violently arrested and illegally detained for over 36 hours. She was pregnant when a judge ruled that she was being rightfully imprisoned on charges that, for lack of access to proper legal counsel, she did not understand. A hearing to determine whether she could await trial outside of prison because of the conditions of her pregnancy occurred one year and eight months later. With support from an independent, legal clinic, she was set free nearly three years after her initial arrest.

Five years ago, when Mexico’s prison population was already shrinking, cases like these were common. With the latest round of penal reforms, it can only be expected for these cases to become more frequent. As of last September, the size of the prison population is once again increasing.

Under the new penal reforms, accused individuals can be imprisoned immediately and legally for up to two years without receiving a sentence. But currently, an extensive appeals process allows prosecutors to stall trials by six-month periods if they deem they have had insufficient time to bring an investigation to completion.

Those without proper legal defense can be swallowed by the process and remain behind bars for much longer. A majority of those in prison awaiting sentence are young, poor, possess only a primary education, and come from Indigenous communities. They are mainly women and report violent treatment by law enforcement during arrest and while in prison.

A 2017 study on the penal situation in the southern state of Oaxaca showed that of those locked up on pre-trial detention measures, 97 percent were Indigenous.

“This all has to do with economic resources. Who has the money to pay a lawyer to keep pushing? Who has money to call the court constantly and pressure their case?” said Jose Luis Gutiérrez, Director of AsiLEGAL, a Mexico City-based legal clinic focused on human rights.

“The state knows that the use and abuse of preventive prison is not necessary. It’s only generated an over-population of jails and prisons…Even prison officials know that thanks to these kinds of reforms, prisons will be filled by people who will not have a chance to leave,” he added.

Due to a backlog of cases and broader inefficiencies in the system, the reliance on automatic pre-trial detention not only increases the size of the prison population, but keeps many people who could be innocent behind bars.

Besides lacking the money for proper legal representation, other barriers, like access to interpreters during legal proceedings, lengthen wait times before trial.

“There are many Indigenous people who might not even speak Spanish. And when there is an opportunity for the judge to see them in prison, he doesn’t understand them, he doesn’t listen because there is no interpreter present,” Gutiérrez said.

To Protect Victims and Uphold Rights, Look for Alternatives

Last November, Abril Pérez Sagaón, the ex-wife of a former Amazon Mexico executive, was killed in a drive-by shooting while riding in the passenger seat of a car on her way to the Mexico City airport. She had just filed additional paperwork for her divorce proceedings.

Less than a year prior, her husband beat her violently while threatening to kill her. She did what ineffective state officials usually tell victims to do: report the crime to the authorities.

Her husband was put in pre-trial detention and later allowed to walk free by a judge. Because the initial charges against her husband had been deferred to “non-serious” offenses—from intent of femicide to domestic violence—the risks leveraged against her were not properly investigated. Her husband remains the primary suspect behind the killing.

With more criteria in place to distinguish between serious and non-serious offenses, the mechanism of automatic pre-trial detention—implemented with the stated objective of enacting justice and protecting victims of crimes—quickly becomes inadequate. Despite the warning signs, Abril remained in danger and received no additional safety measures.

If the system has failed to lower crime rates, and fails to protect victims, what is it doing?

Commenting on this case, Alejandro Jimenez, a lawyer and researcher for CEEAD, said, “They’ve put us in a context of black and whites. When it should be a board of different shades of grey. They’ve said that it’s automatic pre-trial detention or nothing.”

Relying on the use of pre-trial detention is a hardline strategy that unjustly punishes while pushing any credible, structural reforms—in the courts as in police departments—further down the line.

“What we need is the institutional strength, capability and resources to function on a case-by-case basis, to deem when it is appropriate to prescribe pre-trial detention or not,” he added.

But by absolving prosecutors from having to carry out formal investigations, the measure undermines efforts to build their institutional capacity to be able to do so in the future.

In the last few months, members of Congress and the executive branch have called for additional penal reforms, but the roadmap ahead remains ambiguous. It remains to be seen whether this administration will be able to reverse its current course of action to help the country deal effectively with violence, while continuing to protect the rights of its citizens. With homicide rates across the country at a decade high, the pressure for AMLO to curb the bloodshed is also swelling. But at this point, the evidence indicates that to tackle these issues credibly, the government must look for other options.

Jose Benjamin Montaño is a freelance writer and translator. You can follow him @jbmont_

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