[Senate Prints 112-36]
[From the U.S. Government Publishing Office]
112th Congress
2d Session COMMITTEE PRINT S. Prt.
112-36
_______________________________________________________________________
JUDICIAL AND POLICE
REFORMS IN MEXICO:
ESSENTIAL BUILDING BLOCKS
FOR A LAWFUL SOCIETY
__________
A MAJORITY STAFF REPORT
PREPARED FOR THE USE OF THE
COMMITTEE ON FOREIGN RELATIONS
UNITED STATES SENATE
One Hundred Twelfth Congress
Second Session
July 9, 2012
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COMMITTEE ON FOREIGN RELATIONS
JOHN F. KERRY, Massachusetts, Chairman
BARBARA BOXER, California RICHARD G. LUGAR, Indiana
ROBERT MENENDEZ, New Jersey BOB CORKER, Tennessee
BENJAMIN L. CARDIN, Maryland JAMES E. RISCH, Idaho
ROBERT P. CASEY, Jr., Pennsylvania MARCO RUBIO, Florida
JIM WEBB, Virginia JAMES M. INHOFE, Oklahoma
JEANNE SHAHEEN, New Hampshire JIM DeMINT, South Carolina
CHRISTOPHER A. COONS, Delaware JOHNNY ISAKSON, Georgia
RICHARD J. DURBIN, Illinois JOHN BARRASSO, Wyoming
TOM UDALL, New Mexico MIKE LEE, Utah
William C. Danvers, Staff Director
Kenneth A. Myers, Jr., Republican Staff Director
(ii)
C O N T E N T S
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Page
Letter of Transmittal............................................ v
Introduction..................................................... 1
Recommendations.................................................. 3
The Merida Initiative............................................ 4
Police Reforms................................................... 6
Judicial Reforms................................................. 9
The Future of Bilateral Security Cooperation..................... 11
(iii)
LETTER OF TRANSMITTAL
----------
United States Senate,
Committee on Foreign Relations,
Washington, DC, July 9, 2012.
Dear Colleagues: Mexico is one of the United States' most
important partners. Recently, bilateral security cooperation
has deepened and matured as Mexico and the U.S. seek to address
drug trafficking and the violence associated with it.
In April of this year, I dispatched Senate Foreign
Relations Committee majority staff to Mexico City and Monterrey
where they conducted extensive interviews with Mexican and U.S.
officials, top policy thinkers and human rights advocates,
closely examining U.S.-Mexico bilateral security cooperation.
Their findings are included in this report. I hope these
findings and recommendations will inform policy discussions
during the forthcoming periods of political transition in both
countries.
Sincerely,
John F. Kerry,
Chairman.
(v)
JUDICIAL AND POLICE
REFORMS IN MEXICO:
ESSENTIAL BUILDING BLOCKS
FOR A LAWFUL SOCIETY
----------
Introduction
2012 is a presidential election year for both Mexico and
the United States. In December, Mexico's new president, Enrique
Pena Nieto, will assume office and the following month the
victor of the U.S. presidential elections will commence his
term. New leadership brings change, and in the Mexico-U.S.
context, a leadership change could alter the existing bilateral
security cooperation dynamic. Amidst potential change, this
committee report strongly recommends maintaining robust
bilateral support for the Merida Initiative, and calls upon the
incoming Mexican and U.S. administrations to expand their
support for Mexico's reform of its judicial sector and police
as the best means to reduce the high levels of violent crime in
Mexico.
For the past five and half years, the Calderon
administration has been the architect of Mexico's campaign
against organized crime, the primary focus of which has been
taking down organized crime bosses (popularly referred to as
``capos'') and deploying large numbers of military personnel to
high crime areas. The U.S. Government has joined Mexico in its
effort to combat organized crime through the framework of the
Merida Initiative. To be clear, the strategy is Mexican-led,
and U.S. assistance to Mexico is a small fraction of Mexico's
own expenditures. Officials in Mexico and the United States
stress that Merida has served as a catalyst for a more profound
law enforcement partnership--an acknowledgment that, because
the challenges are shared, the burden is best shared as well.
Law enforcement cooperation between Mexico and the United
States in the 20th century was hobbled by mutual suspicion;
when cooperation did occur, it was generally because officials
were willing to buck the prevailing distrust to solve specific,
high priority cases. Despite these deeply rooted sensitivities,
the Calderon administration has progressively opened the door
to greater bilateral law enforcement cooperation, all the while
imposing the ground rules governing U.S. support. Eager to
institutionalize a cooperative law enforcement relationship
with Mexico similar to that enjoyed by the United States with
Canada, the U.S. Government took a gradualist, long-term
approach to building operational links with Mexican law
enforcement and judicial sector officials. Initially, the
Calderon administration saw the Merida Initiative as a way to
receive sensitive U.S. law enforcement information to enable
Mexican authorities to more accurately target organized crime
and to obtain big ticket counternarcotics equipment; Mexican
officials were slower to express openness to receiving U.S.
capacity and institution-building training support for their
law enforcement and judicial sector personnel. As greater trust
developed between both sides, law enforcement cooperation under
the Merida Initiative progressively deepened and broadened.
This highly positive momentum has helped facilitate progress on
other important issues, including trade, environmental
protection and energy.
Despite the Calderon administration's progressively better
record at taking down key organized crime bosses, this
``capo''-centric anti-crime strategy has been widely criticized
for deemphasizing the daily security needs of average Mexicans.
Moreover, heavy reliance upon the military to quell lawlessness
and directly confront the narcotics syndicates appears to have
been largely ineffective--and in some instances to have
exacerbated the violence suffered by civilians.
Although President-elect Pena Nieto, like the two other
main presidential candidates, expressed support during his
campaign for maintaining close bilateral law enforcement
cooperation, he will undoubtedly confront immense public
pressure to quickly and publicly address wide-spread concerns
about violence and insecurity. Since December 2006, when
President Calderon launched his campaign against organized
crime, Mexico has tallied over 55,000 drug-related homicides.
The horrific tactics utilized by the criminal organizations to
intimidate both their rivals and the authorities have burned
deeply into the Mexican public consciousness. All too
frequently mass killings include women and minors. Bodies
visibly mutilated are hung from bridges and severed heads are
deposited in public places. In at least one instance, a pig's
head was sown onto a torso. Unsurprisingly, there is a
widespread conviction among Mexicans that bilateral law
enforcement cooperation should not just target organized crime,
but must also help Mexico reduce its current unacceptably high
levels of violence.
The Calderon administration's campaign against organized
crime has, for the most part, enjoyed the support of a majority
of Mexicans, but large numbers of Mexicans also doubt whether
their government will prevail. At the core of these doubts is
the government's inability to clamp down on the hyper-violence
occurring in certain parts of Mexico. Simply put, most Mexicans
mistrust the federal and state authorities' main tools to fight
crime, the police and judicial system, given their record of
pervasive corruption and ineffectiveness.
The Calderon administration has focused its civilian
institutional reform efforts on strengthening its federal law
enforcement institutions' capacity to combat organized crime,
accompanied by a more modest effort to bolster the federal
government's prosecutorial capabilities. By comparison, support
for reforming and strengthening the federal judiciary has been
halting, and it was not until late in Calderon's tenure that he
began addressing the need to reform the state-level police
forces.
Seconding the view of many Mexican analysts, this committee
report emphasizes that it is vitally important for the incoming
Mexican administration to modernize the justice sector and
implement profound reform of police forces, identify sufficient
resources to do so effectively, and aggressively seek to secure
public support for these reforms. U.S. policy should support
Mexico's efforts to this end, as this approach holds the best
promise to more effectively combat organized criminal groups in
Mexico and, equally importantly, to advance the long-term
security and well-being of all Mexican citizens.
Recommendations
This committee report recommends that the U.S. Congress
ensure adequate, sustained funding, ideally at $250
million a year for the next four years, for the Merida
Initiative to help Mexico, among other things,
accelerate the establishment of an accusatorial
judicial system at the federal and state levels and to
assist, in close coordination with Mexican federal
authorities, those Mexican states seeking to reform
their state police forces. U.S. funding, though dwarfed
by the resources that Mexicans themselves are
investing, is nonetheless vitally important. Utilizing
the ``train-the-trainer'' model, U.S. expertise is
building Mexican capacity, which is important for both
early-stage implementation and long-term sustainability
of efforts.
U.S. officials should stress the importance of police and
judicial reforms to the incoming Mexican
administration, impressing upon them the high priority
that the U.S. Government assigns to the reform efforts.
These reforms are long-term, technically difficult,
require political cooperation across party lines as
well as cooperation between federal and state-level
authorities, and therefore do not lend themselves to
splashy public relations wins. U.S. encouragement can
play an important role in ensuring continued reforms,
perhaps at an accelerated pace, under a new Mexican
administration.
The U.S. Government should increase efforts to strengthen
the implementation within Mexico's federal and state
police forces of accountability mechanisms--such as
effective vetting of personnel and the establishment of
empowered, autonomous internal investigative units--to
prevent corruption and human rights abuses.
Accountability mechanisms will ensure that police
personnel are held responsible for crimes and abuses
they commit, and are essential elements for increasing
Mexicans' trust in their country's law enforcement
agencies.
Mexican federal-level police reforms are now generally
better-resourced and more advanced than state-level
efforts, despite the fact that the majority of crimes
fall within state jurisdiction. U.S. support for police
reforms should increasingly target state-level efforts.
Even if previously viewed as a necessary stop-gap given the
weakness of the civilian police authorities, military
deployments to combat organized crime have achieved
limited success and, in some cases, have led to human
rights violations. Increased civilian police
capabilities will obviate the need to deploy military
personnel for domestic security purposes. U.S. efforts
to strengthen Mexican police capabilities should
simultaneously encourage the reduction of the Mexican
military's role in the provision of domestic security.
The U.S. Government needs to continue strengthening the
prosecutorial capabilities of the Attorney General's
Office and help build the prosecutorial capabilities of
its state-level counterparts. Being respectful of the
separation of powers, the U.S. Government should work
together with the Mexican Government to promote
judicial reform at both the federal and state-levels.
The U.S. Embassy should work with its Mexican counterparts
and civil society to promote greater public awareness
and understanding of judicial reform efforts. Public
misperceptions, and a lack of understanding in some
state legislatures, unnecessarily hobble reform
efforts. Studies delineating the superior performance
of the oral-based, accusatorial judicial system that is
being implemented in some Mexican states should be made
publicly available.
Through both the judicial and the police reform efforts,
Mexico has the opportunity to increase human rights
protections. All U.S. efforts should incorporate a
human rights lens. U.S. officials should consult widely
with Mexican civil society, and the Secretary of State
should use the congressionally mandated reporting
process as an avenue to encourage deeper and more rapid
progress on the human rights conditions set forth in
the FY 2012 Consolidated Appropriations Act (P.L. 112-
74).
The Merida Initiative
Named after a Mexican city on the Yucatan Peninsula that
hosted Presidents Calderon and Bush at the strategy's
conception in 2007, the Merida Initiative has developed into a
multifaceted cooperative security effort between the United
States and Mexico. Since 2008, the U.S Congress has
appropriated $1.9 billion for the Initiative. As of April 2012,
the U.S. Government had provided approximately $1 billion worth
of equipment, technical assistance and training; after a slow
start, the delivery process hit its stride in 2011 with an
annual delivery of $500 million. Reflecting a deliberative
bilateral consultative process, U.S. officials have channeled
assistance to complement Mexico's own efforts and provide
expertise and equipment that both sides judge will add value.
Mexican spending dwarfs U.S. contributions; Mexican Government
officials estimate that, for every U.S. dollar spent, Mexico
has contributed thirteen dollars toward the shared goals of the
Merida Initiative.
In Merida's earliest phase, bilateral cooperation focused
on sharing sensitive law enforcement information to disrupt
organized crime as well as on the delivery of costly
counternarcotics equipment to military and federal law
enforcement agencies (including the provision of helicopters,
maritime surveillance planes, major system-wide computer
upgrades and non-intrusive scanners). As the cooperative
process unfolded, the Mexican Government expressed willingness
to receive U.S. institutional capacity building assistance
training for its judicial sector and law enforcement personnel.
Under the Obama administration, the Merida Initiative was
formally organized around a four-pillared bilateral structure:
disrupt capacity of organized crime to operate;
institutionalize capacity to sustain rule of law; create a 21st
century border; and build strong and resilient communities.
Under this structure, the Obama administration significantly
increased its funding for rule of law institutional capacity
building and training; maintained robust U.S. support and
intelligence sharing for Mexican efforts to disrupt organized
crime; deemphasized purchasing big ticket equipment for the
Mexican military and federal police; and initiated modest
programs to support border cooperation as well as crime
prevention programs in agreed upon urban areas in northern
Mexico. Reflecting these developments, the largest allocation
(perhaps by a factor of three) of the FY 2012 Merida budget
will be directed to rule of law capacity building programs,
followed by progressively smaller amounts for disrupting
organized crime, creating a 21st century border and building
resilient communities.
Proponents of the current Mexican security strategy argue
that the Calderon administration's determination to prevail
over the drug trafficking syndicates, buttressed by a dramatic
increase in the government's security budget (up 70 percent
over 2006 levels), has begun to yield significant progress in
combatting organized crime. Today, Mexico has considerably more
capable federal law enforcement agencies and, for the first
time in its history, scores of key criminal leaders have been
arrested or killed and cartel operations have been disrupted.
On an aggregated national basis, drug trafficking-related
homicides are no longer skyrocketing and seem to have
plateaued, albeit at an extremely high level. Moreover,
multifaceted crime prevention programs and better policing have
led to reductions of drug trafficking-related homicides in
certain hyper-violent locations, notably the border city of
Juarez.
Critics argue that the Mexican Government's preoccupation
with capturing organized crime leaders has precipitated
unacceptably high levels of drug trafficking-related homicides.
They also fear that the fragmentation and resulting
marginalization of certain previously dominant narcotics
trafficking organizations has created a landscape with one or
two more formidable national criminal syndicates and a plethora
of smaller crime groups which still move large amounts of
narcotics and perpetuate a significant percentage of the
violence, along with extortion, kidnappings and robberies. The
Mexican Government's deployment of large numbers of military
forces to reinforce the thinly stretched federal law
enforcement agencies has engendered strong criticism,
particularly from national and international human rights
organizations, given the disturbing increase of allegations of
grave human rights violations against civilians by military
personnel.
Mindful of U.S. security policy in Latin America in decades
past, the U.S. Congress included human rights conditions on
Merida assistance, withholding 15 percent of certain funds to
Mexican security forces until the Secretary of State reports
that Mexico is taking action on specific human rights concerns
such as eliminating the use of torture and ill-treatment to
obtain evidence and prosecuting in the civilian justice system
police and soldiers alleged to have committed abuses against
civilians. The Secretary's next report will likely be submitted
to Congress by the fall of 2012.
There is widespread agreement that without a concerted,
coordinated bilateral effort that seriously addresses U.S.
demand for narcotics as well as U.S.-based firearm smuggling
and money laundering, little can be done to effectively reduce
drug trafficking in Mexico. The U.S. Government has devoted
major resources to reduce domestic demand for narcotics; the
Office of the National Drug Control Policy is funded at about
$25 billion a year, at least a third of which targets domestic
demand. While this effort has achieved significant
successes,\1\ the reality is that this societal ill will
bedevil the United States for the foreseeable future. The U.S.
Government's efforts to clamp down on arms smuggling into
Mexico have been constrained by legal imperatives and
undermined by political infighting. Although combating U.S.-
based money laundering benefiting Mexican criminal
organizations appears to be the easiest of the three
challenges, U.S. Government agencies have been slow to devote
the resources necessary to develop a robust capability to
combat it.
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\1\ The United Nations Office of Drugs and Crime reports that drug
consumption in the United States is steadily declining. Among the
population aged 15-64, the consumption rate is down from 2.5 percent in
2006 to 1.9 percent in 2009. Approximately 617,000 people aged 12 or
older used cocaine for the first time in the past 12 months in 2009, a
decrease from 722,000 a year earlier.
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In the committee report's assessment, the Mexican
Government can best sustain strong popular support for an
aggressive campaign against organized crime if it can
demonstrate to the Mexican people that it is also successful at
significantly reducing the violence inflicted by organized
crime and its allies. The committee report believes that the
best way to achieve these two objectives is through the
continued promotion of police and judicial sector reform.
Police Reforms
The Mexican Government seeks to regain public trust in the
police whose credibility remains badly tarnished by pervasive
corruption and ineffectiveness. This will be no easy feat; in a
2010 public opinion poll, only 8 percent of Mexicans surveyed
expressed strong confidence in the police.\2\
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\2\ As stated in a General Distribution Congressional Research
Service Trip Report from Clare Seelke, Specialist in Latin American
Affairs, distributed on May 9th, 2012.
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The Calderon administration has made significant
investments to strengthen its federal law enforcement
institutions' capacity to combat organized crime. The primary
beneficiary has been the Mexican federal police which has
increased five-fold, expanding from 6,500 to over thirty-six
thousand, and which qualitatively improved its ranks by
recruiting 7,000 university-educated entrants. By comparison,
the Mexican Attorney General's Office, which fields a much
smaller federal-level police force specializing in
investigations, has received less of the central government's
largess, and has taken more modest steps to enhance its
institutional capabilities. Both organizations have implemented
procedures to combat pervasive internal corruption by vetting
their personnel through background investigations as well as
regular toxicology, medical, psychological and polygraph
examinations.
Some analysts argue that the larger and more effective
federal entities have thrown organized crime groups on the
defensive and that these syndicates do not represent a national
security threat to the Mexican Government. They point out that
the Mexican Government has killed or captured scores of key
organized crime leaders (extraditing many to the United
States), precipitating the near demise of some organized
criminal networks and the fracturing of others. Nevertheless,
it is clear that two formidable organized crime networks,
Sinaloa and the Zetas, and their respective local criminal
allies, are aggressively battling each other, as well as the
federal government, to retain control over their now
diversified illicit activities--which also include arms
dealing, extortion, human trafficking and money laundering--in
their fiefdoms. These criminal organizations wield intimidating
influence over certain state and municipal governments, and
inflict horrifically high levels of violence whenever their
territorial primacy is challenged.
Because of Mexico's federal structure of government, the
federal police and the Attorney General's Office's police force
are, and will likely remain, too small to reduce the hyper-
violence engulfing certain Mexican states. As a result, they
look to the Mexican states to take on this responsibility more
effectively. However, there is an ongoing jurisdictional debate
between Mexican federal and state prosecutors over who should
be investigating the lion's share of the drug trafficking-
related crimes, especially homicides. The federal police and
the Attorney General's Office's claim that they lack the
jurisdiction, under the country's federal structure, to take
enforcement action against many of the crimes perpetrated by
the organized criminal syndicates and their affiliates; they
point out that the vast majority of crimes committed in
Mexico--92 percent by some estimates--including many crimes
committed by organized criminal syndicates, fall under the
legal jurisdiction of Mexico's states and municipalities. On
the other hand, many state prosecutors argue that homicides
tied to organized crime should, according to federal law, be
investigated by federal prosecutors. One possible mid-term
solution to this jurisdictional conundrum would be for the
Mexican Congress to federalize more crimes so that they would
clearly fall into the jurisdiction of the presently more
capable federal police and the Attorney General's Office.
However, given limitations on the ultimate size of the federal
law enforcement agencies, this is a second best solution.
Jurisdictional debates aside, this committee report
champions the view of many Mexican experts that over the long
run the Mexican federal government's anti-organized crime
campaign can only succeed if it can enlist the effective
cooperation of state and municipal (at least from the larger of
the municipalities) police forces. Reflecting the reality that
there are over 350,000 poorly trained and inadequately
resourced police distributed among the Federal District, 31
Mexican states and over 2,500 municipalities, this is an
enormous challenge. The Calderon administration attempted to
address this challenge by merging all of the municipal police
forces into the state-level police forces; this approach was
rejected by the Mexican Congress as many legislators viewed it
as a power grab by federal and state authorities.
The United States Government has been keenly interested in
forging a cooperative law enforcement relationship with Mexican
state-level, and certain municipal-level, authorities. Until
very recently, however, highly sensitive sovereignty issues
precluded such U.S. involvement with local officials. In 2010,
both countries began holding discussions on how the United
States could work with Mexican law enforcement authorities in
Chihuahua State to counter the violence raging in Cuidad
Juarez. These discussions evolved into an understanding that
the United States would channel all assistance to Mexican state
and municipal police forces through the central government's
Executive Secretariat for the National Public Security System
(SNSP), an agency charged with coordinating federal public
security funding and training to the states. Washington also
agreed to follow the Mexican federal government's lead as to
which Mexican states would be prioritized to receive U.S.
police professionalization assistance. In 2011, both
governments identified three high violence states bordering the
United States--Chihuahua, Nuevo Leon and Tamaulipas--as
priorities to receive Merida Initiative assistance to
professionalize the state police forces; in 2012, the Mexican
Government proposed expanding the priority list to eight
states. Reinforcing this effort, both countries agreed to
support the establishment of a law enforcement academy to train
state police from across Mexico; this facility opened in May
2012 in Puebla.\3\
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\3\ U.S. support to Mexico's strategy of enhancing state-level
police professionalization is taking various forms. The United States
is placing Senior Police Advisors/Mentors at the state police academies
in Chihuahua, Nuevo Leon, Sonora and Tamaulipas to help channel U.S.
training assistance. The U.S. is also helping develop major crimes task
forces, known in Mexico as ``Accredited State Police Units,'' that will
be created in a minimum of 21 states and in the Federal District. The
initial goal is to establish at least one of these task forces in each
of the participating states, although Nuevo Leon is committed to
creating three separate units. These ``Accredited State Police Units''
will be composed of 422 specially vetted and trained personnel who will
be the frontrunners of larger police reform efforts within their
states, and in the meantime will become their states' trusted partners
to the federal law enforcement agencies. This effort is still in its
early stages of implementation. Mexico has trained approximately 1,300
investigators, 450 analysts and 1,900 operations personnel. In
addition, the United States and Mexico have collaborated to help the
states root out corruption within their ranks. The United States has
provided training, technical assistance and equipment to help endow
priority states with the capabilities to vet their own police forces on
a regular basis. The SNSP plays a key role in ensuring that the state-
level vetting procedures conform to federal standards. A complementary
U.S. initiative helps state police forces establish their own Internal
Affairs Units to investigate corruption and other abuses. As required
by U.S. law, U.S. officials implementing these programs must be
vigilant in ensuring that the Mexican state-level police officials
receiving U.S. funded training and equipment have been rigorously
screened for human rights violations.
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There are credible reports that large police cleansing
operations designed to publicly demonstrate anti-corruption
gains have resulted in unlawful detentions and the extraction
of confessions by torture--some of the very abuses they were
meant to eliminate. Without accompanying accountability
mechanisms, wholesale replacement of police personnel is
unlikely to lead to a major reduction of police misconduct.
Even when vetting mechanisms are in place, there are instances
in which vetted members of newly established police have been
charged for serious crimes. To effectively promote police
reform at the federal and state levels, Mexican police
officials must build and safeguard rigorously effective
mechanisms to continuously vet police personnel and to conduct
independent internal investigations into crimes and malfeasance
committed by police personnel, prosecuting wrongdoers in
criminal courts where appropriate. Inculcating a culture of
lawfulness in new police units will take time, and this
challenge underscores the importance of not reproducing the
flaws of Mexico's old law enforcement institutions in the
process of forming new ones.
Judicial Reforms
Mexico's slow and opaque inquisitorial justice system
fosters impunity. This paper-based system is hobbled by high
pretrial detention rates, prison overcrowding, trials conducted
with little to no transparency and the use of tainted evidence;
there is considerable evidence of the use of torture to obtain
confessions for serious crimes. Mexico's inquisitorial judicial
system has proven inefficient and highly vulnerable to
corruption. The cumulative result of the system's many flaws is
that Mexico has been plagued with an unacceptably high impunity
rate--only two percent of reported crimes lead to a conviction.
Recognizing that this system was inadequate to meet the
demands of modern-day Mexico, the Mexican Congress launched in
2008 an ambitious transformation of its judiciary. The
resulting constitutional amendment requires that, by 2016, all
state and federal judicial systems transition from the
inquisitorial system to a more agile, transparent, oral-based
accusatorial justice system.
Federal and state-level reforms to implement the
accusatorial system seek to improve the transparency,
efficiency and quality of Mexico's judicial system.
Accusatorial trials feature oral arguments in an open court,
guaranteed opportunities for witness participation, better
protection of evidence, safeguards to prevent against
confessions obtained by torture, the use of alternative dispute
resolutions and the presumption of innocence until proven
guilty.
Many observers fault the Calderon administration for
failing to assign to federal-level judicial reform the same
urgency as to the take-downs of key criminal leaders. They
argue that while the increased effectiveness of the federal
police has led to a surge of arrests, a commensurate increase
in prosecutions has not occurred, resulting in even more
egregious prison overcrowding and the revolving door release of
many criminals. Nevertheless, draft legislation to implement a
new Federal Code for Criminal Procedures for an accusatorial
system has slowly, but surely, gathered support within the
Mexican Congress. Although most observers believe that the new
code will ultimately be approved by the Mexican Congress, it is
not expected to be considered until early 2013 given the
electoral calendar and competing congressional priorities. The
absence of reform at the federal level means that federal
crimes, such as those related to organized crime, are still
being prosecuted in the inquisitorial system, with all of its
inherent weaknesses. At the same time, while many states have
moved forward with reforms independently of the federal
government, the failure to approve a new Federal Code for
Criminal Procedures has reduced the pressure on states to make
the necessary changes in a timely manner. Some of the laggards
waited until after presidential elections this year to move
forward on reforms, which will inevitably push them against the
2016 deadline.
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Reforms' Early Results
State-level implementation of judicial reforms varies widely among the 31 federal states and the Federal
District. Only three states--Chihuahua, the State of Mexico, and Morelos--have fully transitioned into the
accusatory model, although two others, Oaxaca and Zacatecas, have also made significant progress in
implementing the new system. A comparison between the 27 states that have yet to fully implement judicial
reforms and the five states that have been implementing the new system for a minimum of one year illustrate the
benefits of the accusatorial system. The five reform states generally demonstrate better victim participation,
improved accountability for judges, greater use of alternative dispute resolution mechanisms, more selective
pre-trial detention, fewer number of days required to resolve a case, increased efficiency and, notably,
tougher sentences, over the non-reform states. That said, there is also a significant variation in performance
even among the reform states. USAID commissioned the study and it will be released later this year.
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An inherently lengthy process, judicial reform will
probably require a generation to institutionalize. Instructing
lawyers in the new system will require new textbooks, revised
law school curricula and training for law school professors.
Many legal professionals accustomed to the inquisitorial system
are reluctant to shift to the new accusatorial process.
Enlisting federal judges, who are given to zealously protecting
their independence from the Mexican executive branch, presents
a particular challenge. Proponents of judicial reform also face
an uphill battle against public opinion, given that many
perceive the accusatorial system as overly lenient on the
accused. In Chihuahua, where the accusatorial system is fully
operational, a murder suspect in a highly publicized case was
released because three judges argued that the state prosecutors
had not built enough evidence, and the resulting public outcry
led to legislative modifications that have undermined
protections for the accused.\4\
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\4\ In anticipation of the eventual implementation of the new
criminal procedure code, the Mexican Government, with U.S. support, is
preparing personnel for the impending reforms. The U.S. Agency for
International Development (USAID) focuses on state-level assistance and
the Department of Justice (DOJ) concentrates on federal-level reforms.
Working with seven Mexican states to implement judicial reforms, USAID
has trained prosecutors, engaged civil society, promoted alternative
dispute resolutions and facilitated judicial exchanges at the state
level. USAID plans to expand assistance and work in a limited capacity
with 13 more states. DOJ focuses on teaching Mexican instructors for
the federal police and prosecutors about new procedures and roles under
an accusatory system. DOJ has trained personnel in the Attorney
General's Office on how to combat organized crime, human trafficking,
kidnapping, money laundering, as well as refining skills regarding
fugitive apprehension and forensic sciences.
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Getting protection right--both physical and legal
protections--for the various legal actors might prove difficult
under the new code, but is nonetheless critical. Given that the
accusatorial model promotes transparency through open trials,
witnesses and judges may find themselves at elevated risk of
attacks upon their person. The new system must incorporate
adequate protection mechanisms; intimidation of these actors
would grievously undermine the success of the new code. The
accused are afforded more protections in that the accusatorial
system assumes innocence until proven guilty. However, the
constitutional reform passed in 2008 allows for a practice
known as ``arraigo'' where individuals can be detained up to 80
days without charges while they are being investigated.
Technically, ``arraigo'' is only legal in situations where
there is a suspicion of involvement in organized crime. Mexican
and international human rights advocates decry these detentions
as violations of due process guarantees, such as the
presumption of innocence, and express concern that those
detained under ``arraigo'' are at greater risk of human rights
abuses; U.S. Government programs need to support efforts that
eliminate the use of ``arraigo.''
Future of Bilateral Security Cooperation
The United States should continue its strong support for
Mexico's efforts to reform and strengthen its federal and
state-level police forces and judicial systems. The United
States can effectively support Mexico through high-level policy
engagement reinforcing developing cooperative anti-organized
crime linkages, including partnerships between the U.S.
Department of Justice and the Attorney General's Office, U.S.
law enforcement agencies and the Mexican federal police and
others, and U.S. federal and state-level courts and their
Mexican counterparts. Mexican civil society can make a vitally
important contribution to the success of this bilateral
cooperation, and the United States needs to continue to solicit
its views.
The United States Government must also do more to address
U.S.-based crimes associated with violence in Mexico. It has a
responsibility to its own citizens, and has made a commitment
to the Mexican Government, to reduce U.S. demand for narcotics.
U.S. law enforcement efforts should increasingly combat the
smuggling of weapons into Mexico and the use of U.S. financial
institutions to launder the illicit proceeds of the Mexican
criminal organizations.
The United States also has a vital stake in supporting good
and effective governance in our immediate neighbor. Mexico's
ability to dismantle organized criminal groups and reduce the
hyper-violence occurring in certain portions of its territory
depends in large part on whether the federal police and
judicial system, together with their state counterparts, can
successfully arrest and prosecute dangerous criminals. To its
credit, the Calderon administration has launched this effort,
but the primary responsibility to consolidate it will fall to
its successor and the state governments.
President-elect Pena Nieto has expressed his intention to
continue robust law enforcement cooperation with the United
States. In all probability, Mexico's new leader will
reconfigure some elements of the current anti-organized crime
strategy but will maintain most of the critically important
elements of the bilateral Merida Initiative security
cooperation.
This committee report recommends sustained, robust funding
and policy support for the essential building blocks of the
Merida Initiative, police and judicial reforms, to ensure the
success of this vitally important cooperative effort.