Crime and Punishment in Mexico: The big picture beyond drug cartel violence

While the YFZ Ranch mess out in West Texas has gobbled up much of this blog's routine bandwidth, the hot war in Mexico between the government and major drug cartels, not to mention between the cartels and one another, appears to be spinning wildly out of control. The outcome of this struggle has huge implications for security in Texas, and not just for the border region.

Six police officials were assassinated in a week's time recently, including the head of the federal police, the highest ranking law enforcement officer in Mexico. The main suspects in the federal police chief's murder are other federal police officers with ties to the Sinaloa cartel. Such high-profile police killings have been going on for a while now, but their frequency and boldness has grown exponentially. The Chicago Tribune reports reported that:

Mexican authorities said Monday that Millan Gomez's slaying was an inside job organized by the Sinaloa cartel. The murder has bolstered skeptics from both U.S. political parties who have questioned whether aid from the Merida Initiative could end up in the wrong hands.

I'd wondered previously if President Bush's proposed Mexican aid package wouldn't just wind up training and arming more turncoats like Los Zetas. Perhaps this moment of rethinking will encouage Congress to consider more helpful approaches than just purchasing hardware and paying overtime for Mexican police.

Meanwhile, in Juarez, El Paso's sister city across the Rio Grande, 15 police officers have been assassinated since the beginning of the year, despite the presence of 2,000 federal troops.

For those keeping track at home, the cartels are winning the drug war battle in Mexico, and it's mostly because of corruption, superior tactics, and economics, not a lack of military might.

Fabius Maximus asks point blank the critical question: Is Mexico on the road to a failed state? Two years ago, I did not think so. Today I seriously wonder.

So it's with this recent context that I was interested to see an article in Voices of Mexico (Jan-April 2008) titled "The Direction of Criminal Justice Reform in Mexico" (not online, I happen to subscribe to VOM, which is an English-language arts, politics and culture magazine published out of UNAM, a major university in Mexico City).

Let's just say, the opening lines of the short piece by UNAM law professor Enrique Ochoa Reza and legal researcher Miguel Carbonell, didn't provide particular comfort, declaring "Any analysis of the Mexican criminal justice system must start from a certainty: it is so flawed we can say without fear of exaggeration that it is completely bankrupt."

Okay, let's start there. (!) They continue:

All available statistics lead us to the conclusion that the Mexican criminal process is leaking from every side: a) it is useless for trapping the most dangerous criminals; b) it allows for an extremely high level of impunity and corruption; c) it does not guarantee the fundamental rights of either victims or accused; d) it does not set up incentives for professional criminal investigations; and e) if we take into account its poor performance, it is extremely expensive. ...

Eighty-five percent of victims of crime never even file a complaint; 99 percent of offenders are not convicted; 92 percent of criminal hearings take place in the absence of a judge; 80 percent of Mexicans believe judges can be bribed; 60 percent of arrest warrants are never executed; 40 percent of inmates have not yet been convicted, while 80 percent of detainees have never spoken to the judge who convicted them.

Yikes! I don't know off hand what the line by line comparable stats would be in the United States. For some, like Ds never seeing the judge who convicted them, I'd hope it'd be near 0% instead of 80% in the US. But comparisons aside, on their face those are alarming numbers.

Ochoa Reza and Carbonell also answer, partially, another key question. If the most serious criminals appear immune, and few investigations occur ("Most arrests by police are made when the offender is caught in the act or within the following three hours"), "who does the criminal justice system catch?"

Most of the people sentenced have committed offenses against property, particularly petty thievery, or what in Mexico are classified as crimes against health, above all small-time drug dealing worth an average of US $100 (although half these individuals had drugs in their possession worth less than US $16). Some analysts think these figures show that what the police are doing, more than arresting real drug dealers, is to arrest consumers, probably to try to fulfill arrest quotas demanded by their superiors.

This numbers driven drug enforcement model is a US export. It's essentially similar to the incentives that operate among US drug enforcement officers, particularly at the state and local levels.

Another thing's similar to the United States, ironically. Despite the growing Mexican murder rate (more than double that in the US) and increased influence of major, corporatized drug cartels over the last decade, overall reported crime decreased in Mexico from 1997-2005, both percentage-wise and in real numbers, from 4,084 local crimes reported daily nationwide in 1997, down to 3,864 in 2005, increasing to 3,957 in 2006.

Over the same period though, the authors report, "we find a paradox" in that while the number of crimes declined, the number of people in prison increased. Clearly crime is not down because imprisoning more people "worked" in Mexico. Drug gangs are openly competing with the central government for power! Instead, I'd suggest that Mexico and the United States both appear to have enjoyed organic, overall crime reductions during this period that are a) about the same magnitude and b) occurred in spite of rather than because of state incarceration policies.

The authors added this concern, which in light of Texas' incarceration juggernaut seems almost quaint: "The magnitude of these figures should make us stop and think about the large number of Mexicans who at one time or another and in one circumstance or another are accused of having committed a crime. The number is 2 percent of all the country's inhabitants."

In Texas, by comparison, more than 1 percent of Texas adults are currently in prison, and nearly 1 in 20 Texans are under current control of the criminal justice system: either in prison, jail, on probation or on parole. About one in 11 adults in Texas have been convicted of a felony, several times the percentages in Mexico, FWIW.

In their section identifying possible reforms, Ochoa Reza and Carbonell look to take the best of what appears to work from both the north and the south. From Los Norteños they suggest Mexico " [Set] up a common procedure in which the trial becomes the central stage of the criminal process. In the Mexican system, this presupposes at least two things: 1) eliminating exceptions that allow for non-enjoyment or diminished enjoyment of fundamental procedural rights (that is, the currently existing regime of exceptions applied to organized crime, established both in the Constitution and in the Federal Law Against Organized Crime); 2) giving the stage of the criminal investigation the place and importance it should have, reducing the requirements for subpoenaing a person to testify and making what happens before a judge the central part of the process."

They also support "Strictly separating the public prosecutor's subpoenaing and prosecutorial function from the justice system's decision making functions," and making investigations less formal to encourage more of them (don't quite know what formalities they're talking about).

Finally, declared the authors, following the lead of Argentine reformers Alberto Bovino and Christian Hurtado, he suggests:

Regulating a series of alternatives to the application of common procedures and punishments. It should be emphasized that on this point Bovino and Hurtado refer not only to criminal procedures, but also to the regive of substantive criminal law, which should be made much more rational and contained, avoiding the levying of criminal sentences willy-nilly to punish all kinds of behavior.

I'd not heard before of Bovino and Hurtado, but like what I hear from them on this piece. (Looking for more background on them, I found this recent research paper about legal reformers in Latin America that appears to give more detail on recent trends in Latin American criminal justice reform - perhaps fodder for another Grits post down the line.)

Ochoa Reza and Carbonell's article gives some important context about crime and punishment in Mexico that both re-frames and complicates the near-daily news reports about the nation's Sisyphean battle against the drug cartels. On a day to day basis, Mexico faces many of the same challenges we do - some of them "supersized," and some of them on a much smaller scale - and they're looking both north and south for solutions.

RELATED: From John Ross, Why Mexican Justice is a Euphemism.