La Revolución Nueva: How the Calderón Reforms Have Revolutionized The Mexican Legal System in the Face of Cartel-Related Violence

BY CLAIRE RUMLER — On May 12, 2012, over 50 mutilated corpses, several of whose hands, feet, and heads were cut off, were discovered in a pile next to a highway in the Mexican state of Nuevo Leon.[1] The massacre was the largest in a month-long string of cartel violence, including the decapitation of 18 bodies near Guadalajara, and the mutilation of 14 bodies in the American city of Laredo near a bridge with nine more bodies hanging from it.[2] These murders represent only a small percentage of the more than 50,000 organized crime-related deaths that have occurred in Mexico since President Felipe Calderón was elected in 2006.[3] In Mexico, criminals operate with almost complete impunity, especially if the criminal is affluent enough to afford bribes. To put it in perspective, only 25 of 100 crimes are ever reported, based on victimization surveys.[4] Of those 100 reported crimes, approximately 4.6 result lead to criminal investigations, 1.6 of the crimes investigated survive the judge’s assessment of probable responsibility and pass to the evidentiary phase of prosecution.[5] Almost all of those crimes are brought to trial (1.2 out of 1.6), and 91% of crimes brought to trial end in sentencing.[6] In simpler terms, only one crime out of every 100 is ever sentenced- a shocking statistic whose implications for democracy are significant.

The necessity of large-scale and profound reform in Mexico is undisputed. However, despite pressure from the United States, any reform is ultimately meaningless without a strong, transparent, and accountable criminal justice system to enforce them and instill confidence in the citizenry. In other words, the criminal justice system is the backbone of a strong democracy: it is responsible for enforcing the rule of law. Without a strong rule of law, caused by an absence of the law or arbitrary and capricious enforcement of the existing structures, confidence in the system breaks down and democracy crumbles. Any drug policy that the Mexican government adopts, no matter how well-funded by the United States, is doomed to fail without the means to enforce it.

President Calderon’s 2008 reform package attempts to address the rule of law problem in four ways. First is the introduction of oral advocacy, adversarial procedures, and alternative sentencing in trials. Under the new procedures, the presentation of evidence will occur orally, publicly, and on the record. Second, the reform package emphasizes the rights of the accused: due process, increased access to an adequate legal defense through the creation of a public defender’s office, the presumption of innocence, and so on. Third, the package addresses police corruption by addressing both agency policy and its role in criminal investigations. This includes purging and prosecuting large numbers of police officers in all levels of the government in all 31 states.[7] Finally, the reforms push tougher anti-cartel policies.[8]

These comprehensive reforms address the problems at the core of the disintegration of the rule of law in Mexico. As discussed above, the law in Mexico is enforced arbitrarily and with preference to a particular class of individual, and, prior to the Calderón reforms, few mechanisms even existed to ensure adequate access to justice even if they were well enforced.

These reforms address the roots of the rule of law problem in Mexico: transparency, accountability and predictability. Opening the judicial process in the courtrooms introduces a level of transparency by allowing the public to observe for itself what happens inside a courtroom. The new emphasis on due process and the rights of the accused addresses the predictability of enforcement of the law by ensuring that basic constitutional protections are applied to all criminal defendants. Introducing police procedures and policies that force accountability encourages a predictable enforcement of the law, especially in the branch that has received the most criticism. Finally, the reform package seems to provide legal mechanisms within the existing system for the other branches to enforce. In this way, the other branches of the Mexican government are given a rule of law to apply.

Although these sweeping changes require a huge amount of work and money, there is no doubt that they will radically affect the way that criminal law is practiced in Mexico. However, the old system was clearly broken, as demonstrated by the high homicide rates and relative impunity with which cartels can operate. If the Calderón reforms can continue to evolve with the changing needs of the Mesican people and the dynamic landscape of the cartels, and the high-government officials remain vigilant, then these reforms will be effective in reasserting the rule of law in Mexico.