Introduction
Mexico is one of the modern nations that have a legal system not based on the common law. The country borrows much of its law from the Roman and the Napoleonic Code. There have been claims that the current Mexican legal system encourages impunity, and that suspects’ rights are infringed. The criminal law specifically has been cited as discriminative to the suspects due to the various provisions that infringe on the suspects’ rights. In Mexico, a suspect is presumed guilty until s/he is proven innocent by a court of law. This presumption has been criticized by the international community arguing that it is against the rights of the defendant (Horton, 2011). The process of interrogation is a major failure of the system. The interrogation of suspects takes place in the district attorney’s office in the absence of the suspect’s attorney. The police have been accused of torturing suspects in a bid to force them to concede committing the crimes in question.
While in the US the suspect has the right to an attorney, in Mexico, interrogations proceed without the presence of such representation. Representation is not allowed until the suspect is aligned in court. The police are allowed to detain a suspect for a maximum period of 48 hours in which they should complete the investigations (Tilly & Kennedy, 2007). However, the detention period may be increased by the court upon request by the prosecutor. Such extension is only granted if the interrogator proves that s/he has not completed interrogating the suspect. Some theorists have argued that the desire to fight drug trafficking in Mexico has led to the adoption of stringent laws. Drug trafficking and general crime have escalated in the country over the past few decades thus prompting the policymakers to formulate stringent rules to counter criminal activities. Drug trafficking is especially viewed as a serious crime in Mexico and suspects of the crime are subjected to serious penalties.
The Mexican judicial system is divided into federal and state courts that have varied jurisdictions. At the federal level, three courts exist namely, the Supreme Court, the circuit, and the district courts (Uildriks, 2010). The district courts have original jurisdiction and try suspects arrested by the police for petty crimes. Suspects tried in the district courts may appeal to the higher courts if they are dissatisfied with the rulings. The state courts are found in each state, and they are based on the individual state’s laws.
This paper seeks to discuss the nature of the Mexican criminal system to prove or disapprove the allegations that the system has numerous shortfalls. In the achievement of the said purpose, the paper shall analyze the history of Mexican law, the substantive and the procedural law, and, the jurisdictions of the various types of courts in the country. The paper shall also compare and contrast the country’s legal system with that of the US to give the reader insight into the strengths and shortfalls of the system.
Mexico’s legal tradition(s) and relevant history
The Constitution of Mexico is the supreme law of the land, and it was drafted in Santiago de Querétaro during the famous Mexican Revolution. However, the Constitution did not apply until 1917 when it was inaugurated and approved by Congress (Philip, 2012). This law was a replacement of the earlier constitution version of 1857 that was deemed unfit for the country after the revolution. The constitution was the first of its kind to establish human rights for the citizens of Mexico. Until today, the Constitution remains the supreme law of the land. However, various amendments have been affected by Congress to address the gaps in the law. Most of the amendments made to the original document center on human rights. However, the criminal law has also been amended to address the rising criminal activities in the country. One of the crimes that have necessitated changes in the legislation is the increased drug trafficking which is considered a serious offense in the land. Various amendments have been effected to deal with the suspects of drug trafficking.
Other amendments to the criminal laws center on the punishments and penalties for different crimes. The country has abolished the use of certain penalties such as corporal punishment and death penalties. Religion and the nation’s culture have played a major role in the various amendments that have been affected after the inauguration of the document. Religious leaders have specifically been on the front line in the fight against impunity and oppressive laws. Their efforts have led to significant changes in the law. In 2005, Congress abolished the use of corporal punishment for suspects of crime (Sanchez, 2013). The Federal Penal Code of 1930 marked a huge turnaround to the country’s justice system when it abolished the death penalty. Since then, the prisoners have not been subjected to the inhumane penalty that was widely applicable among suspects of certain serious crimes. However, the military still holds certain offenses as punishable by death including the lynching of a senior officer, disrespect of military honor, and treason.
Comparison with the US criminal system
Major differences
One of the most important differences between the Mexican and the US legal systems is the perception of each towards the suspect. In the US, the suspect remains innocent until and after s/he is proven guilty in a court of law. In Mexico however, the suspect is perceived guilty, and only the courts can free the defendant from the accusation by dropping the charges. The guilty perception before trial by the Mexican law has been a point of debate with experts claiming that it is against the suspects’ right (Schatz, 2008). The Mexican courts’ criminal data indicates that most suspects charged with different charges end up being jailed. This aspect is attributed to the presumption that a suspect is always guilty even before trial.
The availability of cash bail is another area of difference between the two systems. Under the US system, the suspects have the right to be released on bail, which is in personal recognizance or cash bail provided the defendant could raise the amount asked by the courts. In Mexico, suspects are only entitled to release on cash bail and not personal recognizance. Moreover, In Mexico, suspects whose felonies may attract a sentence of more than two years cannot be released on bail. They have to be detained until a verdict is granted by the courts. Suspects whose crimes may only attract a jail sentence that does not exceed two years are entitled to cash bail. In the US, suspects are entitled to release on bail regardless of the length of the prospective sentence.
Another distinction between the two systems is that Mexico is a civil law country while the US is a common law country. The common law emphasizes the review of the previous verdicts issued by judges. The verdicts delivered by judges especially in courts with appellate jurisdiction bind the lower courts, and they form the basis for future verdicts in cases with similar facts (Olson, 2012). In contrast, such verdicts are not considered when deciding criminal cases in Mexico. The Mexican law derives mainly from the Roman law and the Napoleonic Code both of which emphasize review of the written law. A judge in the US must review numerous precedents before delivering a verdict. A Mexican judge must follow the written law of the letter and must not consider previous verdicts delivered by various judges. The definition of crime in the two countries also differs greatly from Mexico has a stricter definition than the US. Bribery, for example, is viewed as a criminal offense in Mexico and as a civil tort in the US.
Lastly, the two systems differ greatly regarding the sentences given to suspects of various crimes. In the US, certain crimes such as murder and robbery with violence may lead to a death sentence if a suspect pleads guilty. Under the Mexican system, none of the prescribed offenses can lead to a death sentence. In other words, the Mexican constitution bans the death sentence on suspects regardless of the intensity of the crime in question.
Similarities
Just like in the US where a suspect is entitled to representation by a lawyer of his choice, in Mexico, the suspect is equally entitled to the right of attorney. Under both systems, a suspect has the right to choose his/her lawyer (McLeod, 2010). Private lawyers who are paid by the client are allowed in both systems. Suspects without the financial capacity to hire a lawyer are entitled to a public lawyer upon request. The public lawyers are provided by the government, and the costs are settled by the same body.
Another similarity is that under the two systems, the Constitution is the supreme law and other controversial laws that do not align with the Constitution are deemed null and void. Besides, legislations are enacted by Congress in both countries and they must be made into law by the president. The pressure groups have a great influence in the formulation and amendment of legislation under both systems.
An overview of substantive and procedural law in Mexico
As indicated previously in this paper, under Mexican criminal law, the defendant is presumed guilty right from the outset of the proceedings. The suspect can only be relieved from the guilty presumptions only after the completion of the proceedings. The procedure for criminal proceedings is a complex one and involves several procedures. When a crime is reported to the relevant authorities, the District Attorney’s office shall take on the responsibility of investigating the felony to compose strong evidence that shall be used in a court of law. The district attorney in coordination with the police launches a preliminary investigation into the crime to determine if there is a strong case emanating from the criminal allegations (Horton, 2011). During the investigation, the defendant is entitled to record statements or decline to give the information. The interrogations take place in the District Attorney’s office in the presence of witnesses. However, the suspect is denied the right of representation during the interrogation process. Representation is only allowed during the trial of the suspect.
If upon completion of the investigation, the police find enough evidence to proceed with the case, the District Attorney shall apply to the courts for an order to detain the suspect. The court will review the application presented by the investigator to determine if there are enough grounds to charge the suspect (Hernández-López, 2007). If the presiding judge is satisfied that the evidence is enough to institute strong legal proceedings against the suspect, s/he will order the suspect’s arrest. If the court grants the district attorney permission to arrest the suspect, the police will detain the suspect in the relevant police cells. However, such detentions are constitutional for 48 hours after which they are deemed illegal. In that regard, a suspect must be presented to the court before the lapse of the 48 hours to answer to the charges leveled against him/her.
The first court appearance involves the mention of changes and the identification of the suspect. However, during the session, the defendant is at liberty to make general statements and s/he may request for his/her release on bond. At this stage, the suspect may choose to appear in person or hire a lawyer to represent him/her. Release on a bond is only possible if the suspect does not have previous criminal records (Hernández-López, 2007). The other requirement for granting the bond is that the crime should not attract a sentence of more than two years. If the defendant meets the mentioned conditions, s/he must present a financial bond for his/her release. Release based on personal recognizance does not apply to the system.
The suspect has the right to present evidence of innocence within the first 48 hours following his/her arrest. If the defendant chooses to present such evidence, the trial judge must review the evidence presented by both the district attorney and the suspect and determine whether to adopt the case or drop it within 72 hours (Henry, 2015). If the judge finds the suspect innocent, he/she will be released immediately. However, if the judge finds out that the suspect has a case to answer, the detention order shall remain in force until the beginning of the trial. The accused is entitled to the right to cross-examine the plaintiff before the commencement of the trial. However, this is only possible upon request by the suspect. The cross-examination meeting takes place inside the jail the accused is held in the presence of a penal judge, a public lawyer, and the district attorney. The accused may seek to clarify any contradictory statements concerning the case during this special session.
A jury is not acceptable in most criminal cases, and a judge must be involved in the trials. The judges base their verdict on the provisions of the law and expert opinions. Defendants in criminal suits have the right to counsel during the proceedings. The suspects may hire either private counsel or request for a public lawyer in case the suspect has no money to hire one (Hine-Ramsberger, 2008). In such a case, the judge appoints a public lawyer paid by the government. However, public lawyers may not be effective in representing the victim due to the lack of a direct client-customer relationship.
An overview of policing, courts, and corrections in Mexico
The court system
The Mexican judiciary is an independent arm of government whose responsibility is to try criminals without interference from either the executive or the legislature. The Supreme Court judges are appointed by the president and cannot be dismissed unless found guilty of a crime after impeachment by Congress. The Supreme Court magistrates appoint the judges of the junior courts. The criminal courts are divided into two major categories namely, the state and the federal courts. The jurisdiction of the two types of the court varies depending on the cases they can handle. The federal courts have the jurisdiction to handle major felonies. The following courts fall under the purview of federal courts:
- The Supreme Court of Justice
- Circuit courts
- District courts
At the federal level, the Supreme Court is the highest in the hierarchy, and it is made up of 11 magistrates elected for life by the president. The life appointment is meant to guarantee the independence of the courts since the judges cannot be removed by either the executive or the legislature. The judges may only be removed following a court verdict connecting the judge to crime or abuse of the office. The Circuit Courts are the second highest in the hierarchy of the federal courts. They have appellate jurisdiction, meaning, they hear appeals from the district courts. Lastly, the district courts have original jurisdiction, and they handle cases of the first hearing. Their verdicts can be challenged in the appellate courts. The country has a total of 32 circuit courts and 98 district courts distributed across the nation.
The state courts are present in all 31 states, vary greatly from one state to the other. The individual state’s laws govern the operations of the courts, which explains why the courts have varied jurisdictions. Under the state law courts, the highest court in the hierarchy is known as the Superior Court of Justice, which has appellate jurisdiction (Felbab-Brown, 2011). The courts of First Instance are the second highest in the hierarchy, and they have original jurisdiction. Other courts not in the mentioned categories are deemed to be special courts that deal with special cases such as the family and bankruptcy proceedings.
Corrections
If upon the termination of the criminal proceedings, the court finds the suspect guilty, s/he is sent to one of the correction institutions available in the land. The penal system has a myriad of correctional institutions, which are either federal or state-managed. The penitentiary for the Federal District is one of the largest correctional institutions in the country and hosts a large number of prisoners annually. Additionally, there are over 2000 municipal jails distributed across the country where prisoners are sent by both the federal and the state courts. The jails host both the criminals and suspects awaiting trial, who have been denied bail or are unable to raise the amount.
The condition of the Mexican prisons is not, however, impressive and prisoners are subject to mistreatments by fellow inmates and the guards. Overcrowding is a common phenomenon, and it is attributed to the denial of cash bails to suspects (De la Garza, 2013). Other challenges that characterize the nation’s prisons include:
Mistreatments and bullying by peers
- Poor sanitation
- Inadequate recreational facilities
- Untrained guards
- Corruption among the prison officials
- Drug trafficking
- Intergroup warfare
- Lack of privacy
- Poor diet
However, despite the mentioned challenges, the prisoners also enjoy certain rights that are not common in some states. Inmates, for example, are allowed to bring in their families and enjoy conjugal rights with their civilian partners during the visits.
Immigrants from the US may choose to spend their jail term in either Mexico or their home country. The 1977 Prisoner Transfer Treaty provides for the transfer of US immigrants from the Mexican prisons to the US prisons (Cordero, 2012). Moreover, the treaty also allows Mexican prisoners in the US to choose to serve their terms either in the US or Mexico. Given that the US prisoners make up a big percentage of the Mexican prisoners, the treaty was an attempt to ease the overcrowding in the Mexican jails.
Policing
Policing is the exclusive role of Congress that drafts and passes laws through a vote. The Congress is made up of two chambers namely, the Chamber of Deputies and the Chamber of Senators. The deputies’ chamber has 500 elected representatives senators’ chamber has 62 members appointed from all the 31 states making up Mexico (Bruhn, 2009). The two houses enact legislation and have the power to amend such legislation to fit the needs of the nation. They also take part in the formulation of international treaties with other global countries such as the US. However, the legislation passed by Congress must align with the constitution. Otherwise, they will be nullified. Hence, the constitution is superior to other legislations. Religion and other pressure groups in the country largely shape the policing process by mobilizing the Congress members to enact various laws that are in the best interest of the nation.
Conclusion
Mexico has a well-defined criminal justice system that is characterized by criminal courts of a different jurisdictions. The criminal justice courts may be divided into two, viz. the state and the federal courts. The laws in each of the 31 states govern the state courts. The federal courts’ jurisdictions apply universally all over Mexico with the Supreme Court being the topmost in the hierarchy. Different from other nations in the globe where a suspect is deemed innocent until proven guilty, in Mexico a suspect is presumed guilty until proven innocent by a court of law. There are well-established procedures for charging a suspect in Mexico. After a crime has been reported to the police, the district attorney must apply to the courts for an order to arrest the defendant. When the order is granted, the District Attorney must align the suspect in court within 48 hours following such arrest. The first hearing involves the identification of the suspect and the mention of the case. At the first hearing, the suspect may make general statements and s/he can request for his/her release on bond. To qualify for release on bond, a suspect must not have previous criminal records and the maximum sentence for the crime must not exceed two years. The right to counsel is guaranteed whereby the suspect may opt to hire a private lawyer or request the hearing judge to appoint one on their behalf.
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