I'm sorry, but I'm not going to write about the Cassez case. I don't know enough about it to say anything that hasn't already been said a thousand times in the last week. If anyone wants details, I recommend they turn to the meticulous reconstruction written some months ago by Hector de Mauleon. However, the subject of due process, as addressed in the French woman's case, merits a wider discussion. By my judgment, there are various loose ends, more to do with political than judicial matters, in the public debate on the issue.
According to my understanding, there are three main arguments in favor of due process:
1. A deontological argument: Whatever the crime is, it is eminently unjust to punish a person (and even more so to deprive them of their liberty), without first giving him the chance to defend himself before an impartial tribunal.
2. A Rawlsian argument: Given that all of us could be accused of some crime, it's in the best interest of each one of us to ensure that the accused have extensive procedural safeguards.
3. A consequentialist argument: Offering due process guarantees to the accused would make it more difficult to obtain convictions, which would eventually cause an improvement in the quality of investigations, and of the Attorney General's Office in general.
I don't have a problem with the first two arguments, but the third seems incomplete. In particular, I think it omits the real incentives affecting the conduct of judicial officials, even under the new oral and accusatory system. Let's go step by step:
1. The argument rests on the implicit premise that there will be public pressure on the attorney general's offices to improve results. But that assumes that the public will be well-informed about what happens during trials. And that, according to the information available, is a big assumption. It's possible to establish performance indicators for the attorney general's offices (pre-trial detention rates, ratio of convictions to cases brought, etc), but it's tricky and it requires consulting various databases. Anyway, it's unlikely that, outside of some high profile cases, the media (with some exceptions) would give constant coverage to the results of the attorney general's offices.
2. The argument also depends on the public being able to correctly identify the grounds on which an alleged criminal goes free. The case of Rubi Marisol Frayre in Chihuahua, and now of Florence Cassez do not allow for much optimism on this point: in both instances, there was a lot of angry finger pointing at judges and ministers and not at the prosecutors (in part, especially in the case of Rubi Marisol, because of complaints made against the judges by various political actors).
3. Finally, the argument assumes that public perception affects the political and employment prospects of prosecutors and other judicial personnel. This can be true in some cases, but certainly not in all: there are prosecutors who keep their jobs despite very bad press.
In summary, the possible positive effects of due process (and of reform to the criminal justice system in general) on the quality of the administration of justice will not be automatic. They will depend on a favorable political context that does not exist today. How to create this? I don't have very elaborate answers, but here are some random thoughts:
1. It is necessary to increase the transparency and accessibility to how courts function. Some federal entity (the national statistics insitute INEGI? The Federal Judicial Council? The Executive Secretariat of the National Public Security System? The Superior Audit Office?) could construct a series of performance indicators for the administration of justice, initially at the state level and, perhaps in the second phase, at some additional level (municipal? the Attorney General's Office?).
2. It is necessary to educate the public about the concrete meaning of judicial reform in general, and due process in particular. There could be traditional information campaigns, but it might be more effective to do it through means of fiction. Couldn't there be a series or a "telenovela" that shows the operation of the new justice system, emphasizing the necessity of protecting the rights of the accused? (In the United States, this subject is very popular.)
3. It is necessary to align the political and personal incentives of prosecutors and other judicial personnel with institutional improvements. To do this, a few possibilities have occurred to me. First, the prosecutors could be chosen by direct election (the way it is done in the United States), with the possibility of consecutive re-election. Second, the prosecutors could be subject to legislative confirmation following their nomination and ratified periodically (every three years perhaps?). Third, there could be a budgetary allowance for performance bonuses for prosecutors who obtain the best results (or the best improvement) on the performance indicators described above. Finally, there could be a private award for prosecutors, in the manner of the Ibrahim Prize in Africa.
Each of these ideas would be problematic for multiple reasons, and some may be unfeasible. But, if they don't work, we must think of others: it is very urgent that we create the political conditions necessary to protect the judicial reform and to allow it to have a transformative effect on the administration of justice. Nothing is going to happen automatically, except for frustration among citizens and, perhaps, a tragic reversal on the way to a half-civilized justice system.
Translated and reprinted with permission from Alejandro Hope, of Plata o Plomo, a blog on the politics and economics of drugs and crime published by Animal Politico. Read the Spanish original here. Hope is also a member of InSight Crime's Board of Directors.