Paso a paso - progress on Mexican judicial reform

Garrison Photography, Boise, ID

The Wilson Center recently released a good report on the progress of Mexico's judicial reform, which began back in 2008. I think this is one of the more important reform efforts under way in Mexico, for a variety of reasons, but especially because these reforms--if done well--could hugely improve the legitimacy, efficiency, and protection of basic civil rights within the judicial system. This in turn could have a positive effect on the country's ability to combat organized crime and drug trafficking, as well as the deeper, associated social ills such as poverty, inequality, and corruption.

The reforms contained in the 2008 legislation are broad and ambitious. They seek to move from an inquisitorial, European-style system to an accusatorial system similar to the British and American common law system. What's the difference? In the simplest sense, the former system, a descendant of the Napoleonic code, is oriented around finding out the facts of a case whereas the latter system focuses more on the parties caught up in the case, oriented more towards restorative, rather than punitive justice.

The accusatorial system has spread rapidly throughout the Americas in recent decades and, where implemented correctly, tends (or hopes) to result in greater protections for individuals involved in trials (plaintiffs and defendants alike); more public and transparent proceedings; and greater efficiency stemming from the use of alternative sentences and plea bargaining.

These are certainly some of the goals of the Mexican reform, which, like many Latin American systems, has been strongly criticized for its mistreatment of civilians, its lack of transparency, and a tendency to create huge bureaucratic burdens. In response, the groups behind the reform law included improvements in the treatment of victims and defendants, including a presumption of innocence and access to qualified public defenders (a novelty in Mexico); limitations on pre-trial detention procedures guaranteed by a judge; and oral proceedings at all stages of a trial.

The reforms have also been subject to some criticism, though, by groups opposed to the practice of arraigo. This procedure allows police and prosecutors to detain individuals suspected of involvement with organized crime for up to 80 days to allow officials to gather evidence and build a case--often an obstacle in prosecuting savvy, well-connected individuals associated with the drug trade. Unfortunately, the practice has been widely abused, and in practice often results in the use of torture to build cases against a wide array of individuals suspected of activity relating to a loose definition of "organized crime."

The new measure mandated the federal government and the 32 states (including the Federal District) to pass and implement enacting legislation by 2016. Enactment has been slow but steady through 2012. While 22 jurisdictions have now passed enacting legislation (strong progress), in practice the reforms are being adopted at a tortuous pace, and progress varies considerably among and within enacting states. Only 12 have implemented their reforms, with only three having fully done so.

This is a tall order, for sure. Reforms require changing not just forms and procedures country wide, but also improving and updating the legal education system while training police, prosecutors, defense attorneys, judges, and clerks. The reforms also face ample political challenges, in addition to technical and resource constraints. There remains strong opposition from sectors concerned that the reforms are too soft on crime, or go too far in protecting criminals. There is also a strong and legitimate debate as to whether the proposed system necessarily will result in a more "just" system. President Pena Nieto has signaled his intent to press forward with implementation, though action at the federal level has been slow.