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Measuring Reforms to Mexico's Broken Justice System

JUDICIAL REFORM / 28 JUN 2011 BY NATHAN JONES* EN

Mexico’s efforts to reform its weak and widely mistrusted judicial system have broad support among legal professionals, though many are skeptical that it will reduce crime, according to a study.

Mexico's judicial system has long been a weak link in its battle with organized crime. According to a 2009 report from ICESI, a citizen watchdog group, the vast majority of crimes committed in the country, some 78 percent, are never reported. Almost half of respondents said it was a “waste of time” to report a crime. A 2010 study from the Instituto Tecnologico y de Estudios Superiores de Monterrey (ITESM), a prestigious Mexican university, found that less than 1.5 percent of crimes were punished by the judicial system. One sign of the depth of public anger over the issue was when a documentary entitled “Presunto Culpable” (Presumed Guilty) became a surprise hit in early 2011. The film follows the Kafkaesque journey of a young man falsely accused and convicted of murder by the Mexican judicial system.

Mexico is now undergoing a shift from an inquisitorial system of justice, which presumes the guilt of the accused, to an adversarial or oral trial system, which presumes innocence, following the passage of a 2008 federal judicial reform law. The reforms also plan to increase transparency, throwing court proceedings open to the public, and giving every defendent the right to representation by a qualified public defender.

The changes are being implemented state by state at different rates, with varying results, over the course of eight years. The Trans-Border Institute has carried out a study, entitled "JusticiaBarometro: Survey of Judges, Prosecutors and Public Defenders in Nine Mexican States," which surveyed legal professionals in Mexico.

The survey comes at a critical juncture in the implementation of the reforms, and based on its results, the changes appear to be going down well with legal professionals. The institute asked questions about nine Mexican states where the reforms are in various stages of implementation. The study found overall positive views of the new system, with 84 percent of respondents generally supporting the 2008 reforms. Seventy percent agreed that the new system will reduce corruption, while more than four in five expressed positive opinions about the quality of judicial decisions.

However, the report did identify some troubling trends for the implementation of the reforms and their impact on justice in Mexico. Among these were long delays in processing murder cases. Close to half of public defenders in the states of Baja California, Nuevo Leon and Coahuila thought that the time taken to settle homicide cases was very slow. Across the states in the survey, prosecutors were not rated highly in terms of competence. Most worrying was the issue of forced confessions. In the state of Coahuila, a quarter of judges and a third of public defenders said that coercion was “always” used to force confessions.

In addition, human rights activists have complained that the reforms are creating a dual track legal system, one for normal crimes and another for those suspected of organized crime. Prosecutors can detain suspects accused of links to organized crime for up to 80 days without charge while building a case against them. In the case of individuals charged with common crime, prosecutors must build cases before detaining the individual, unless they are caught in the act.

And, despite generally positive views of the reforms, fewer than half of respondents thought they would help reduce criminality; a disheartening result in a country where tolerance is wearing thin for the high levels of crime accompanying President Felipe Calderon's war on drugs.

However, the new judicial system could help improve the security situation in a less direct way. It adds protections for the accused by ensuring oral trials, along with transparency and accountability measures, guarantees of legal representation, and the presumption of innocence. This will likely improve the legitimacy of the system, gaining respect from the public at large, and making it a more effective dispute resolution mechanism. The legal system is the foundation of the rule of law, and Mexico’s fight against organized crime may depend upon the establishment of an effective and respected judicial system through these reforms. Based on these survey results, the new system enjoys widespread support among legal professionals in Mexico. Ultimately, however, the success of Mexico’s judicial reforms will be measured in decades not years.

*Nathan Jones is a Post-Doctoral Fellow at the Baker Institute of Public Policy focusing on drug policy.

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