Mexico’s landmark judicial reform just celebrated the first anniversary of its implementation, but the law’s lingering defects and unfulfilled promise have limited its impact.
The 2008 reform’s centerpiece was the overhaul of the long-criticized trial system, creating an adversarial, open trial procedure modeled on countries like the United States. This, in turn, was aimed at reducing corruption in trials, protecting the oft-abused rights of the accused, and streamlining the process for convicting and incarcerating the guilty.
The reform also included a raft of additional provisions that created alternative processes to deal with certain crimes, and sought to standardize protocols for police responding to crimes, among myriad additional changes.
The bill originally passed by an overwhelming margin: 71 of 96 senators supported the measure, along with 462 of 468 deputies. Such popularity reflected widespread sentiment that this was one of the genuinely farsighted and potentially transformational initiatives of the administration of former President Felipe Calderón. Calderón built his reputation on getting tough on crime, but to many critics that strategy appeared to boil down to little more than the haphazard deployment of military troops to the most violent cities.
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The judicial reform was something very different. It seemed like an attempt to attack the root causes of Mexico’s violence and build the foundation of a modern rule of law. In theory, the new law would improve the professionalization of the men and women working within the criminal justice system, and bend their incentives away from collusion with criminal actors. A reduction in corruption would therefore inspire greater trust from the broader population, which would participate with police bodies more willingly. This virtuous cycle would create, in an ideal world, a justice system more capable of resisting organized crime.
The judicial reform established an eight-year window for implementation that expired in June 2016. So now, a little more than a year into Mexico’s experience with the fully implemented reform, how does it measure up against the lofty goals put forth nearly a decade ago?
The Good News
Two of the most extensive recent reviews of the judicial reform, by Mexico’s Center for Development Research (Centro de Investigación para el Desarrollo – CIDAC) and the US-based Justice in Mexico initiative, find some isolated causes for optimism. Perhaps the most conspicuous is that Mexico indeed met the reform’s deadline for implementation: By June 2016, each of the country’s 32 states had installed the new adversarial trial system. While its functioning is uneven, this is no mean feat, and it was accomplished in spite of budget shortfalls, violence threatening the men and women charged with implementing the reform and other unforeseen obstacles.
Justice in Mexico also points to widespread support of the reform from the judges and lawyers who work within the criminal justice system. According to its 2016 Justiciabarómetro, a report based on polling of hundreds of criminal justice practitioners, 89 percent of respondents reported that the reform has had a positive effect on their organization, 90 percent predicted it will foster trust in authorities, and 93 percent forecast speedier criminal proceedings. Even more overwhelming majorities spoke favorably of the oral proceedings and the alternative dispute resolution mechanisms. Wide majorities of those surveyed also predicted the reform will reduce corruption.
It is encouraging that these positive opinions come from the people on the front lines of the judicial reform, who are presumably best acquainted with its positives and negatives. Furthermore, their opinions have almost universally improved since the Justiciabarómetro last dug into the reform in 2010. This suggests that the reform’s positive elements will grow more apparent the longer it is in place.
CIDAC also reported gradual improvements in multiple measures of judicial effectiveness, which may be attributable to the reform. For instance, according to Mexico’s national victim survey, the likelihood of victims to report their crimes increased from 9.6 to 13.6 percent, perhaps reflecting greater confidence in the criminal justice system. CIDAC also reported that 37 percent of the nation’s prisoners are awaiting trial. While this number is abominably high, in recent years the figure has typically been reported at 40 percent. If this reflects a real drop rather than just statistical noise, it is the beginning of a very positive development.
The Failures of Implementation
Although the reform is not without its merits, most of the focus a year after its complete implementation is on its shortcomings. These can be roughly divided into two major categories: specific operational flaws and the failure to appreciably change the broader criminal context in Mexico.
In the first category, a number of specific measures show the reform has fallen short of expectations. In its most recent report, CIDAC found that, from November 2014 to December 2016, Mexico’s Attorney General’s Office was able to prosecute only 10,571 of the more than 63,000 cases it opened, a clearance rate of approximately 16 percent. Although total clearance rates in other nations also tend to be low — in the United States, the figure ranges from less than 20 percent for property crime to nearly 50 percent for violent crime — this statistic has become emblematic of a reform that has fallen short of transformational.
Many analyses point to the failure to adequately train personnel to work within the new system. While foreign exchanges have gone a long way to bring lawyers and judges up to speed, many Mexican law schools have yet to fully adjust their curriculum to the new system, and it has not been possible to train all the current practitioners. As the Justiciabarómetro reveals, sizeable minorities of lawyers and judges had not taken courses on oral litigation nor on alternative judicial processes, and 10 percent of all those surveyed admitted feeling unprepared for the new system.
A recent report in Animal Político echoes the complaints regarding uneven training, and points to an even more dramatic shortfall among police. Months prior to the June 2016 deadline, just 10 percent of the nation’s police officers had received any kind of instruction on the new system. The reform has a more direct impact on lawyers and judges than on police, and a crash effort vastly increased the number of police who had received training to operate according to the new provisions, but this is far from an ideal approach.
CIDAC described a chaotic budgetary process in which spending shortfalls grew more frequent as the implementation progressed. At least four different and independent sources of funding drove the implementation of the reform: a federal subsidy for state security expenditures, known as SETEC; a structured trust for implementation, funded by a state-owned development bank; and two separate security funds that are both part of the federal budget.
This seems an unduly complicated process tailor-made for misspending. Moreover, the outlay for SETEC plummeted in 2016 as a result of a federal budget crunch, reducing the money available to finalize the implementation. It is likely that the money for transforming to the new system will further dry up in the years to come, making it still harder to patch up the holes that remain.
The Reform and Popular Frustration with Security
Beyond these specific problems, the judicial reform suffers from unmanaged expectations, amid persistently high levels of violence and longstanding popular frustration with the government.
Calderón and other supporters pointed to the reform as a virtual salvation of Mexico. It may yet contribute to a far safer and more just nation, but it hasn’t yet, and it was unreasonable to hope for such a transformation as a direct, near-term result of the judicial reform.
The overinflated expectations ignored the many other institutions — from local governments to federal police — whose lack of competence and honesty is as responsible for organized crime’s growth as is an ineffectual criminal justice system. Fixing one element of crime policy while others remain faulty is a bit like putting a brand new motor into a car without tires or brakes.
The reform’s many laudable modifications also do little to address pervasive corruption, the growing examples of which continue to feed widespread disillusionment. The “silver or lead” dilemma faced by government officials, including those working in the judicial branch, remains daunting. No legislative fix will quickly reduce organized crime groups’ capacity to threaten and bribe lawyers and judges, to say nothing of politicians and police officers. The judicial reform offered no remedy for the federal government’s scandalous handling of the Ayotzinapa disappearances.
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Another way of looking at the issue is that the reform did little to alter organized crime groups’ incentives. Organizations like the Sinaloa Cartel and the Jalisco Cartel New Generation (Cartel Jalisco Nueva Generación – CJNG) remain well armed, and their profit motive is essentially unaltered. Since they are the most important actors affecting the levels of violence, there is a sharp inherent limit on the judicial reform’s potential to reshape Mexico.
Ultimately, one lesson of the judicial reform’s disappointment is that institutional reform is inevitably a painstaking process, fraught with moments in which the abstract ideals collide with a much messier reality. The herculean security challenges Mexico currently faces developed over the course of generations, and unwinding the tangle of interests now driving insecurity is a similarly long-term undertaking. While in some ways historic and successful, the judicial reform at this stage represents only a small step in that direction.