Mexican justice system

SIGNIFICANCE: Mexico has a criminal justice system that differs significantly from that of the United States in both its philosophy and its practice. Until mid-2016, the most fundamental difference was the system’s tendency to presume criminal defendants guilty before they were even tried and to make it almost impossible for defendants to be judged fairly on the basis of legally obtained evidence. In 2008, the administration of President Felipe Calderón set forth reforms to the Mexican judicial system that were implemented in 2016, with mixed results.

As in the United States, government in Mexico is organized at federal, state, and municipal levels, with each level divided into executive, legislative, and judicial branches. Mexico has thirty-one states plus the federal district of Mexico City, which is independent of any state, and nearly 2,500 municipal governments. The nation’s criminal justice system operates primarily on the federal and state levels, which have prosecution, police, and penal departments under executive branches and courts under their judicial branches. Also as in the United States, funding for the system is authorized by legislative actions on budgets that are prepared by the executive branches.

Mexico’s legal system is based on Spanish civil law with some influence of Anglo-American common law. The primary source of law is the Constitution of Mexico, followed by legislation, then regulation, and then custom. At all stages, the criminal justice system is heavily dominated by the executive branches—the presidents at the federal level and the state and Mexico City governors at the state level. Through most of the twentieth century, one political party, the Institutional Revolutionary Party (Partido Revolucionario Institucional, or PRI) dominated all branches and levels of government. Less visible but nonetheless apparent has been the extent to which Mexico’s criminal justice system has been politically suborned and manipulated.

The Pervasiveness of Crime

Since the mid-twentieth century, Mexico’s justice system has been shaped and distorted by a vast increase in crime. Two factors especially have provoked this arching menace. The first is the rapid growth of Mexico’s population over the latter half of the twentieth century and beyond. Agricultural and public health improvements have allowed the population to quadruple, but the national economy cannot provide sufficient employment or income for all Mexicans, and the gap between the rich and the poor has grown larger. Amid this demography of inequality, there seethes another factor: Mexico has a long border with its northern neighbor, the United States, one of the largest consumers of illegal drugs in the world. With fertile tropical and subtropical lands, Mexico and its southern neighbors have become major producers and suppliers of drugs. Moreover, Mexico is a key regional transport nexus for shipping drugs into the United States.

The profits of producing and shipping for this illegal trade are as alluring as they are violent and deadly. It is impossible to understand the Mexican criminal justice system without first understanding both the structure of its operation and the dysfunctions it generates.

Structure of the System

Criminal cases in Mexico are prosecuted through the offices of federal, state, and Mexico City attorneys general (procuradores generales). Through an implied interpretation of the Mexican constitution, attorneys general have come to hold almost exclusive right to this function. The attorneys general are members of the presidential and gubernatorial cabinets within the executive branches. The federal attorney general heads the Federal Public Ministry (Ministerio Público de la Federación) and the Office of the General Prosecutor (Procuraduría General de la República, or PGR), whose prosecutors have extraordinary power to pursue people as criminals. This authority is greatly, even definitively, augmented by their ability actually to produce and monitor the evidentiary material determining the outcomes of trials.

Public security for the investigation, apprehension, and detention of criminals is conducted by several types of police forces. The PGR commands the Federal Ministerial Police (Policía Federal Ministerial, or PFM), while the Secretariat of the Interior (Secretaría de Gobernación, or SEGOB) commands the Federal Police (Policía Federal, or PF). In addition, the thirty-one states and Mexico City all have their own police forces. Under the 2016 reforms, police across the board have greater investigative duties, taking on a role previously restricted to prosecutors.

Police may apprehend individuals whom they suspect will commit crimes or whom they catch in the act of committing crimes. The capturing of individuals in “flagrant” criminal acts has a broad meaning in Mexican criminal terminology. Flagrancia (and cuasi-flagrancia) has been defined to allow the police to apprehend suspects without arrest warrants for periods of up to forty-eight hours after crimes are committed (seventy-two hours in Mexico City). Thus, flagrancy may be interpreted to mean considerably “after” the act.

Arrested suspects are immersed in a police and prosecutorial processes that steadily accumulate evidence—by any means—that substantiates the suspects’ responsibility for crimes. Prior to the 2016 reforms, Mexico did not adhere to the American principle that defendants are to be considered innocent until proven guilty.

The international standard procedure whereby an individual arrested is assured a judicial review occurs through the issuance of a warrant or authorization for arrest by a court. The judicial system thereby records that someone is under prosecutorial custody for a possible trial.

By alleging that apprehending suspected criminals is “urgent,” Mexican police may take suspects into custody without warrants. The principle of designating cases “urgent” case was originally conceived as an emergency measure to be invoked only rarely; however, it has become a routine practice—a convenient way for police to accelerate apprehensions and prosecutors to accelerate convictions.

Mexican law requires that apprehended persons should be brought before judges within forty-eight hours (ninety-six hours in cases of organized crime). However, this limit is not rigorously followed, and prosecutors collaborate with police during the intervals to gather evidence to justify their arrests.

Prosecutors work hard to get confessions, and torture is commonly, even routinely, used to obtain them. Numerous Mexican and international agencies have collected evidence proving that the police routinely use torture to obtain evidence. By contrast, Mexicans make little use of American forensic and investigative techniques to collect evidence. Confessions can provide the bases for indictments that take suspects before judges. The judges or magistrates review the evidence to determine whether it warrants keeping the accused in custody and proceeding to trial. Bail hearings are pursued by only the wealthiest suspects. Personal lawyers are also luxuries. Most accused are assigned pro bonopublic defenders.

Vulnerability of the Accused

For the average accused persons, the first moments before judges may have staggering consequences. The accused must reaffirm their confessions, effectively declaring themselves guilty. If, as is their right at that moment, they state that their confessions have been obtained through torture, the judges may call for new investigations. Meanwhile, however, the accused must also take into account that they are about to be remanded back to the same police who have tortured them.

The public defenders assigned to most defendants look upon the accused not as clients but as poor charges. They see little personal or career advantage in defending such clients. Moreover, newly appointed public defenders typically have little experience or adequate training. They are poorly paid and may jeopardize their careers by challenging the actions of powerful prosecutors.

Prior to 2016, the vulnerability of the accused was increased by the fact that before confessing to crimes before prosecutors and reaffirming the confessions before judges, they did not see lawyers. All interrogations up to that point were conducted without the presence of defense lawyers. Only at the moment that defendants appeared before prosecutors or judges did Mexican legal practice allow the accused to have lawyers. Among the 2016 reforms were expansions of defendants' due process rights, including the exclusion from court of any confessions not made in the presence of a defense attorney.

Trials and Appeals

Trials are conducted in a variety of federal, state, and municipal courts. However, criminal cases are heard only in federal and state courts, depending on the severity, range, and types of crime committed. At the federal level, the eleven-member Supreme Court of Justice of the Nation (Suprema Corte de Justicia de la Nación, or SCJN) sits in Mexico City. The SCJN can interpret laws and has final appellate jurisdiction over all state and federal courts.

Below the Supreme Court are circuit courts, located in the major state capitals of the country. Several magistrates sit on each court. These courts function as courts of appeal. Below the circuit courts are the district courts. The states also divide their own courts by function and level and have supreme courts and appeals courts. Among the more than two thousand separate municipal governments, there are several thousand local courts. Trial by jury in criminal cases is uncommon; verdicts and sentencing are decided by a trial magistrates or panels of magistrates.

Defendants who believe they have been unjustly sentenced and imprisoned have the right to amparo, which is similar to the American concept of habeas corpus. Through a procedure of judicial review, amparo cases can be judged for violations of civil or human rights. However, the legal costs of obtaining reviews place the process beyond the reach of the many poor defendants, who are also the ones who tend to be most abused.

Among the changes implemented in 2016 was a fundamental shift in the nature of criminal trials. Rather than an inquisitorial system largely based on written arguments, trials are now based on an oral, adversarial system that requires the direct presentation of evidence and allows for cross-examination. In addition, the new system places the burden of proof on the prosecution, rather than requiring the defendant to prove their innocence.

Prisons

Prisons are administered at the federal, state, and municipal levels. The largest federally administered prison is in Mexico City. The federal district concentrates the largest numbers of jails in the country, including one for women. Each state also has at least one penitentiary, and there are several thousand municipal jails.

Mexico’s drug-related crime wave has spurred construction of new jails. Mexico’s first maximum security facility, La Palma Prison, near Mexico City, accommodates several hundred of Mexico’s most notorious felons and racketeers, who are monitored through closed-circuit televisions and other forms of electronic surveillance. Mexico has a prisoner transfer treaty with the United States that allows nationals of each country who are held in the other country’s prisons to elect to serve their sentences in their home country.

As in the United States, prisons in Mexico remain seriously overcrowded and notoriously abusive. Prison guards and officials can be bribed (mordida, or “bite,” is the Mexican term for bribery) by prisoners with financial resources. Prisoners live under a rigid system of social hierarchy and subordination. Those at the top of the hierarchy enforce compliance with forced labor (fajina) on those at the bottom. Prison gangs and their heads (cabos) enforce labor requirements; extort money from other prisoners; operate markets for small items such as cigarettes, special food, televisions, and even drugs; and extract sexual favors from the oldest and youngest inmates. However, Mexican prisons allow conjugal visits.

Dysfunctions and Reforms of System

Any adequately functioning criminal justice system should have clearly demarcated stages through which people pass from the status of being detainees to being the accused, then trial defendants, sentenced convicts, and incarcerated prisoners. Such stages exist within legal systems that presume defendants are innocent until proven guilty. Under such systems, detained suspects are not required to say anything and when they do speak to police officers, prosecutors, or court officials, they have the right to counsel with a lawyer. When they go before judges, they have the right to continued legal counsel. No evidence forced from them is admissible in their trials. Moreover, while they are initially detained, they have the right to bail, or conditional release, based on court reviews of their prospects for flight or their danger to society. Once they are formally accused, they have the right to speedy trials that must prove their guilt on the basis of freely and competently obtained evidence. When they are found guilty, they have the right to speedy sentencing and incarceration in conditions that guarantee respect for their basic human rights. They also have the right to appeal their guilty verdicts.

At all stages of this process, but most crucially at the earliest ones, the Mexican criminal justice system has proven dysfunctional. Criminal suspects enter a system that does not presume their innocence but instead compels them to go through progressively more damaging stages of self-incrimination.

Under the pre-2016 system, when suspects were detained, they initially confronted only the police, who acted for the prosecution, and they had no lawyers. They could be tortured to extract confessions of guilt. After they admitted guilt and faced the courts, their incarceration became almost inevitable because no adequate judicial or legal review process was in place that considered how their confessions were obtained. Under such conditions, it is not surprising that half of those imprisoned in Mexico at any moment were awaiting trials and sentencing. There is little urgency for trials in a system in which verdicts are, in effective, already secured. For this reason, it may be said that Mexico’s penal process actually began before cases even reached the courts. For those who were eventually convicted, sentences were almost anticlimactic. Average sentences were less than ten years, but most convicts served only half their terms. The 2016 reforms alleviated some of these conditions, but some—such as the use of torture—were not addressed by the reforms, and others were slow to change in practice.

The Roots of Injustice

Mexico’s criminal justice system exists within a socioeconomic system of extreme poverty. According to Mexican government statistics gathered during the 1990s, as crime was spiraling upward throughout the country, the majority of the people in one-half of the states were living in poverty, and most of the remaining states had significant populations living below the poverty line. Poverty was especially concentrated in the tropical states of southern Mexico, which are also the centers of illegal drug production. With soaring demand for illegal drugs from the United States and grinding poverty in the fertile lands of southern Mexico and Central America, supply responded to demand. The monitoring of this explosive illegal drug activity fell into the hands of Mexico’s patently abusive criminal justice system.

Mexico’s justice system exists not only within a desperate socioeconomic system but also within a closed and manipulated political system. The most dysfunctional stages of the criminal justice system are its initial points, at the level of police apprehension and prosecution. These agents are controlled by the executive branch of government at all levels of Mexican government. Moreover, the judicial branches at every level are both subordinate to and dependent on the executive branches.

A dysfunctional criminal justice system can actually help to support a corrupt political system by providing the appearance of justice and legality, while suppressing social and political critics, marginalized minorities, and criminals competing with the established illegal activities and profits of political, military, and government officials. Throughout most of the twentieth century, the PRI controlled all levels and branches of government and directly benefited from the criminal justice system.

Pressures for Reform

Increasing socioeconomic inequality, desperation to emigrate, and surging crime in Mexico stirred a ferment of social criticism that during the 1990s began to erode the monolithic power of PRI. Increasing numbers of city and state elections have been won by candidates of opposition parties. Most significantly, in the year 2000, for the first time in seventy-one years, an opposition party candidate, Vicente Fox, won the presidency. With the erosion of PRI’s political monopoly, there have been some modest reforms of the criminal justice system. An important, though partial, step was the establishment in 1998 of the Institute for Public Defending. It endeavored to improve the training and independent status of public defenders, who constitute the majority of attorneys used by criminal defendants. President Fox also attempted legislation, with halting effectiveness, that would improve the monitoring of prosecutors and police. However, President Andres Manuel Lopex Obrador has been accused of negligence in curbing criminal activity. Obrador has stated his belief that Mexican gangs and cartels are mostly respectful people who usually kill only each other even though the cartels have been known to demand protection payments from citizens, who risk being killed if they do not pay. Obrador has served as president since 2018. His six-year term ended in 2024. Claudia Sheinbaum, a climate scientist and Mexico's first female president, was elected as his replacement.

Despite the movements for reform, numerous Mexican and external organizations, including the Mexican Conference of Catholic Bishops, Amnesty International, the Organization of American States, and the United Nations High Commission for Human Rights, have continued to report on the appalling use of police and on the criminal operation of jails in Mexico.

In August 2017, a one-year review by Patrick Corcoran for the nonprofit InSight Crime foundation found that while there have been "gradual improvements in multiple measures of judicial effectiveness," including increased likelihood of victims reporting crimes (from 9.6 to 13.6 percent) and a slight apparent decrease in the percentage of prisoners still awaiting trial, the implementation also highlighted areas in which the reforms fall short of addressing pervasive problems in the criminal justice system. Some of these areas include inadequate training of judicial and law-enforcement personnel, widespread public frustration with government, a lack of redress for the corruption endemic in the judicial system, and failure to effectively reduce incentives for organized crime. A subsequent article, published in December 2017 by Joshua Partlow for the Washington Post, reported that the transition from a private, Napoleonic-based inquisitorial system to a transparent and publicly accountable accusatory justice system has resulted in "chaos," often due to police failing to adhere to newly strict standards of investigation and documentation.

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