Mexico: AMLO's government expands controversial preventive detention laws

February 28, 2019
Critics have raised concerns about arbitrary detention and human rights violations as the new law is applied.

Mexico’s new left-wing government has tripled the list of crimes that carry automatic pre-trial detention, in what President Andrés Manuel López Obrador (AMLO) says is a crackdown on corruption. Human rights groups, however, have warned the move may end up funnelling more innocent people into Mexico’s already strained penal system.

On February 19, the Chamber of Deputies, approved an expansion of the constitution’s controversial Article 19, which allows for the automatic “preventive detention” of individuals accused of crimes such as homicide, human trafficking, rape and any violent offence committed with a firearm.

Under the new amendment, automatic preventive detention will now apply to certain types of abuse of power, illicit enrichment, the use of social programs for electioneering, femicide, forced disappearance, burglary and petroleum theft. The latter has become a major issue in Mexico in recent months, amid a battle between the AMLO government and a cottage industry of smugglers siphoning petroleum directly from pipelines across the country.

The new measures were widely supported by legislators from AMLO’s Morena party, which holds a majority in the Chamber of Deputies. In a marathon 10 hour congressional session, supporters argued that expanding preventive detention would pave the way for a crackdown on corruption and impunity.

“In Morena, our position is that crime[s] of corruption … of electoral processes and theft of fuel must have clear penalties,” Morena legislator Mario Delgado said. Speaking to El Universal before the vote, he argued the expansion of preventive detention is part of the new AMLO government’s plans to clean up the public sector.

Their “broader strategy” also includes efforts to create a new National Guard and reform the public prosecutor’s office. “The Article 19 reform goes within this strategy,” Delgado said.

Concerns Raised

The reform will now have to make its way through Mexico’s state legislatures before it can come into effect. Critics, however, have warned the reform could create more problems than it solves.

Criminology expert and author, Guadalupe Correa-Cabrera told Green Left Weekly: “In my view, Mexico’s recent expansion of its preventive detention regime will certainly expose more ordinary citizens to human rights abuses.”

Correa-Cabrera, who recently headed a major study on human trafficking routes from Central America through eastern Mexico, is an associate professor at George Mason University’s Schar School of Policy and Government and is the author of LosZetas Inc.: Criminal Corporations, Energy, and Civil War in Mexico.

She argued that Mexico’s weak and oft-corrupt justice system needs to be reformed before being handed such broad new powers.

“[If] you expand the preventive detention regime [and] increase the number of crimes that qualify for preventive detention, but you do not strengthen institutions first,” she explained, “[Then] results can be extremely negative together with a militarised police.”

“I expect more arbitrary detentions, injustice and violation of human rights overall.”

Correa-Cabrera is far from alone in her concerns. Last December, the United Nations Working Group on Arbitrary Detention issued a statement urging Mexico to completely abolish all forms of automatic preventive detention. According to the Working Group, a defendant facing preventive detention in Mexico effectively “does not have the right to be presumed innocent, nor the possibility of challenging the pre-trial detention order before a judge”.

They argued preventive detention should only be used in “exceptional” cases.

“Such exceptionality requires an individual analysis, on a case by case basis, to determine if it is necessary and proportional to resort to the deprivation of someone’s liberty.”

Preventive detention has been far from exceptional in Mexico — even long before the current reform. According to official figures, 80,000 people nationwide are currently awaiting trial from behind bars. These pre-trial detainees account for just under half the Mexican prison population.

Supporters of preventive detention often concede that putting people in prison before being found guilty is hardly ideal, but at least it allows police the breathing space they need to put together a strong case and ensure an eventual conviction. Yet this system also encourages false arrests and framings, according to constitutional lawyer Santiago Corcuera.

"We know that one of the easiest ways to accuse someone is to throw a gun at the car, stop him and say, ‘You had a gun here’, and he goes to jail immediately," Corcuera told Sputnik News.

Low conviction rates

Mexico’s notoriously low conviction rates have become a source of national frustration, and were a key issue in last year’s election that brought AMLO to power.

“There are many recent cases of suspects who avoided prison even though they were accused,” noted Columbia University Professor Pablo Piccato, author of A History of Infamy: Crime, Truth, and Justice in Mexico.

Official figures indicate barely 2 out of 10 reported crimes in Mexico ever lead to a conviction, though independent analysts have suggested impunity rates are far higher than this.

Last year, judicial watchdog Impunidad Cero [Impunity Zero] reported that once unreported crimes are taken into account, an estimated 98.86% of offences go unresolved. This means that for criminals, the odds of being prosecuted for any given crime are roughly one in a hundred.

Piccato also pointed out that many of the crimes newly added to the preventive detention list — such as the use of social programs for electioneering — “sound like a list of crimes associated with the corruption and impunity that in many people’s eyes characterised previous governments”.

“AMLO was elected on a platform that stressed the fight against corruption, but he also had the support of groups that fought for human rights,” Piccato explained, noting that Mexican voters have been crying out for a “new state approach to justice” that is both more humane and more effective. This is especially true when it comes to political crimes, where influential public figures are all-too-often perceived as being above the law.

“This shortcoming results in suspects avoiding punishment even though they have been considered guilty by public opinion.”

The Cost of Impunity

This environment of impunity not only leaves victims empty-handed, but has also been associated with increasing violence on the part of otherwise law-abiding Mexicans. Last year there were about 25 high-profile cases of lynchings, where neighbourhood vigilantes took the law into their own hands.

In one case in August, last year in Puebla state, two men stopped to buy construction supplies in the rural town of Acatlán. The pair, 53-year-old Alberto Flores Morales and his 22-year-old nephew Ricardo Flores Rodríguez, were unaware the community had been inundated for weeks with a fake news hoax about a pair of unidentified men supposedly stalking the town and kidnapping children. The two innocent men were captured by a mob, dragged through the street and torched alive.

“I can’t imagine the pain that they felt,” witness Hortensia Santos told the LA Times.

“The fire would go out and they would pour on more gasoline. I haven’t been able to sleep; I can’t forget the image.”

A subsequent investigation by Puebla state authorities painted a picture of local police doing little to intervene.

Such cases have fanned the flames of public discontent — not just about those unjustly imprisoned, but against a broader structural failure that sees poorly-supported, poorly-trained police handing often botched cases to an overwhelmed public prosecutor’s office.

According to Piccato, the end result is that even with preventive detention, prosecutors still have a “limited capacity” to “put together strong cases”.

“More capacity and training for investigators, forensic technicians and judges is necessary to catch up with the impunity that characterises the country today,” he said.

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