Why Mexico Should Abolish its Preventive Detention Law

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A prestigious NGO has called for Mexico to abolish the legal proceeding known as arraigo, in which suspected members of organized crime can be held without charges for up to 80 days.

Human Rights Watch (HRW), one of the most consistent critics of the Mexican government’s security policies over the past several years, called on the nation’s Congress to eliminate the arraigo, which allows for investigators to spend up to 80 days building a case against suspects in custody without charges being filed.

Mexico’s Congress has been considering a proposal to lower the maximum allowable detention under the arraigo to 40 days, but according to HRW, this proposal doesn’t go far enough. The opposition to the arraigo stems largely from its potential for abuse: elements of Mexico’s security forces have frequently been accused of building an easy case against a suspect — against whom there is little evidence — by torturing the suspect into a confession.

As HRW’s Americas Director Jose Miguel Vivanco put it:

The practice of arraigo contradicts some of the most sacred principles of Mexico’s Constitution, such as freedom from arbitrary detention, gives prosecutors a perverse incentive to deprive people of their liberty before thoroughly investigating them, and undermines basic safeguards against torture.

InSight Crime Analysis

Vivanco’s concerns on this issue are justified. Mexico’s record regarding detainee abuse is not encouraging. Since Felipe Calderon’s election to the presidency in 2006, thousands of abuse complaints have been brought before National Commission on Human Rights. As HRW and other organizations have documented — frequently with extreme detail — there are hundreds of cases of improper actions by different security forces at the federal, state, and local levels, ranging from sexual assault and beatings to disappearances and murder.

While the arraigo does not in and of itself necessitate abuse, it is a legal standard that makes abuse far easier. Moreover, Mexico’s forces have not demonstrated themselves worthy of trust with such an all-encompassing tool.

The use of the arraigo also highlights how Mexico’s investigative bodies are frequently incapable of building cases against the criminals responsible for the wave of violence afflicting the nation. Consider the ideal approach to tracking down prominent criminal actors: the government spends years investigating them, accumulating evidence, and building a case. Then, when the criminal actor is arrested, prosecutors can quickly call upon years of investigative efforts to justify the arrest, and an indictment swiftly follows. This forces a certain amount of discipline on the government; they may know exactly who the bad guy is and where he is operating, but until they have reached a threshold for indictment, they don’t arrest. This is the pattern that prevails in the US, Italy, and much of the Western world.

But it does not describe Mexico. The arraigo, with its 80 days of uncharged detention, allows prosecutors to paper over a lack of evidence of criminal wrongdoing. Rather than forcing a measure of discipline on prosecutors and police investigators, it indulges and even encourages laziness. Why spend years building a case when, after arresting the bad guy, you can build a case on the fly? In this sense, the arraigo serves as a crutch, propping up a decrepit criminal justice system.

Evidence of this investigative incapacity — of which the arraigo is just one example, though a prominent one — has emerged with alarming frequency in recent years. One of the most famous examples is Jorge Hank Rhon. The former Tijuana mayor was arrested in June 2011, and at one point authorities sought to jail him for 40 days under the arraigo. However, when his legal team demonstrated that the authorities who arrested Rhon had manipulated the evidence against him, the controversial former mayor was released, to the government’s embarrassment.

The Hank Rhon case also echoed the so-called Michoacanazo, in which the government used the arraigo to initiate criminal proceedings against 35 different state and local officials in Michoacan state. All of them were eventually released, and opposition officials accused the government of abusing the arraigo throughout the process. Similar examples of the arraigo being used in other failed legal cases abound.

It’s also worth noting that the current pattern serves to encourage wanton aggression from criminals. The capos know that if the government catches them, they will make certain to manufacture a case, and that the 80-day arraigo period gives them ample time to do so. Many notorious crime lords live in hiding despite not facing formal charges. As a result, they are free to abandon any pretext of living within the law. Once that pretext has been abandoned, an important brake on violence is removed. Why hesitate to kill another 10 enemies, or another 100, if upon your arrest the government is certain to build a case, evidence or not?

In contrast, in the US and other nations, mob bosses know that the government will not arrest them without cause. This incentivizes a less aggressive approach, because they want to avoid giving the government any more evidentiary ammunition. That is, unlike the Mexicans, they are careful not to abandon the pretext of a law-abiding lifestyle. Not coincidentally, organized crime in such nations represents a far more manageable public security threat than in Mexico.

Should Mexico abolish the arraigo, it would not represent a sea change in the nation’s security. As noted, the arraigo is but one reflection of a much more extensive set of ills. And it would undoubtedly impose some difficulties on officials in the short term. Criminal cases would be harder to make, the threshold for keeping a suspect in custody would be higher, and some violent figures would likely go free.

But ultimately, an end to the arraigo would force Mexican officials to adopt a new approach to prosecuting its enemies from the ranks of organized crime. Such an approach would be based on more thorough investigations and a deeper respect for suspects’ and witnesses’ human rights. This would be an important step forward.

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