Preventative Detention And Arraigo: Mexico’s Attack On Human Rights – Analysis

By Jack Memolo*

In the early hours of October 10, 2017, inmates at a prison located in the municipality of Cadestya began protesting the terrible conditions of the penitentiary. A few hours later, the situation had spiralled out of control. According to Aldo Fasci, a spokesman for the prison, “At five in the afternoon, the decision was made to allow the use of deadly force to prevent the murder of the guards and stop the murder of other inmates.” By the end of the day, at least 13 inmates lay dead, with many more wounded. As the riot raged, nervous relatives gathered outside the prison, awaiting word of their friends and loved ones. Since then, four more inmates have died of their wounds.[i]

This was the third violent riot which has rocked the Cadestya prison this year. While this certainly reflects a lack of control by authorities inside the penitentiary, the problem is hardly exclusive to the state of Nuevo Leon, in which Cadestya is located. In February of 2016, a riot in Topo Chico prison in the northern part of Mexico left 49 inmates dead, while 28 prisoners were murdered in a fight at a prison in Acapulco last July.[ii] Indeed, the frequency and scale of violence within the Mexican prison system is alarming, and raises fundamental questions about Mexico’s judicial process. Although the violent riots plaguing Mexican penitentiaries have been attributed to many factors, overpopulation is largely regarded the principal root of the problem.

Although the government’s official occupancy level in 2016 was 97.3 percent, Mexico’s penitentiary system was already holding 40,000 more inmates than the 200,000 it was constructed for.[iii] That same year, the Inter-American commission on Human Rights (IACHR) reported that 200 of the 288 prisons in Mexico had exceeded their population limits.[iv] Additionally, in April of 2016 the government’s independent National Human Rights Commission (CNDH) found that overcrowding was one of the primary factors behind the violence, as well as one of the greatest roadblocks to social rehabilitation for inmates.[v] More recently, the BBC has estimated that the prison system was at 133.9 percent of its intended occupancy rate.[vi] Perhaps most shockingly, another report by the Human Rights Commission in 2014 reported that, given the skewed ratios between inmates and guards, nearly 60 percent of the state’s prisons were operated and overseen by the prisoners themselves.[vii]

While there is a clear connection between the overpopulation of Mexican prisons and the ongoing war on drugs, there is another, lesser known but still related dimension of this issue which has contributed greatly to the overpopulation of Mexico’s penitentiary system: preventative detention.

Preventive detention is defined as an imprisonment of an individual, or group of individuals, for non-punitive purposes. According to authorities, preventative detention is utilized when individuals are waiting to be sentenced in order to prevent them from escaping the country or committing more crimes.[viii] Moreover, and more significantly for this article, Mexican authorities often use preventative detention when the release of the accused individual is viewed as adverse to the authorities’ ability to carry out a proper investigation.

According to Elena Azaola, a researcher at the Center of the Investigation and Higher Education of Social Anthropology, the jailing of these “pre-trial detainees” is one of the leading causes behind the overcrowding of Mexican prisons. This assertion is corroborated by National Security Commission, which found in 2015 that over forty percent of the 230,000 prisoners currently held in Mexico were incarcerated for reasons of preventative detention.[ix] Even though many of these detainees have not been formally accused or convicted of committing a crime, they are often mixed in with the general prison population. Even though these individuals are presumably, as the saying goes, “innocent until proven guilty,” they must still wait months, or in some cases years, to see their day in court.

While the use of preventative detention has been a primary contributor to the current problem of prison overpopulation, one specific category of preventative detention, known as arraigo, has been especially controversial. In English, “arraigo” roughly translates into “court order,” or “root,” yet this seemingly benign translation conceals the sinister nature of the program. Arraigo has its roots in the “war on organized crime” initiative launched by the federal government in 2006.[x] Under the guidance of President Felipe Calderón, Mexican authorities escalated and expanded their use of violent tactics against organized crime. In 2008, arraigo was formally incorporated into the Mexican Constitution as “a federal preventative measure to detain people suspected of belonging to organized crime for up to 80 days,” according to the Mexican Commission of Defense and the Promotion of Human Rights (CMDPDH).[xi] Although the measure was seen as a key preventative tactic at the time, there were also clear human rights problems. For one thing, authorities were given the right to arbitrarily detain individuals without evidence or a clear motive. These individuals often have limited access to medical care, legal counsel, and open channels of communication to relatives and loved ones. Police consistently claim that preventative detention allows them to properly investigate suspects without risking their escape. In practice however, arraigo, and more importantly preventative detention on a much broader scale, has led to a steady increase in Mexico’s prison population– which has risen from 193,889 in 2004 to a peak of 255,638 in 2014. While the total population has decreased to 217,868 as of 2016, this still marks a significant increase over the past ten years.[xii] Yet regardless of the clear relationship between cases of arraigo, preventative detention and prison overpopulation, there still remains an even more sinister dimension: torture.

Despite the government’s insistence that arraigo is a key tool in fighting organized crime, it has also led to the torture of hundreds of individuals who had not been formally accused of breaking the law. The lack of traditional judicial protections, such as habeas corpus and a defense counsel, has left vulnerable civilians held under arraigo susceptible to torture. This assertion is corroborated by the United Nations Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (SPT) during a monitoring visit to Mexico in 2009.[xiii] After gathering testimonies from individuals held under arraigo, SPT found a constant trend of torture. In one federal prison for example, over half of detainees had suffered from repeated beating by authorities, “with an average of 17 lesions distributed over eight different parts of their bodies.”[xiv] Worse still, reports of rape also circulated around the prison. During an interview with SPT, one noticeably shaken woman held under arraigo told the subcommittee that she was raped shortly after being detained. Her medical records later confirmed this testimony. In another more high profile instance, 23 Mexican police officers were arrested under arraigo and taken to a military barracks by the army. Later, the officers testified that they “were bound with tape around their head, hands, knees and feet for days, denied food for three days, beaten repeatedly, asphyxiated with plastic bags over their heads, and given electric shocks to their feet and genitalia”– all of which was done without a formal charge or criminal conviction.[xv]

In 2014, under pressure from various human rights groups, the Mexican Supreme Court ruled that states could no longer use arraigo for cases which involve organized crime. However, the Courts did not prohibit arraigo at the federal level– a situation that still has not changed. Additionally, while the Mexican government reduced the amount of time an individual can be detained from 80 days to 40, prosecutors still have the ability to extend this time limit to the original 80 days if approved by a judge.[xvi]

With all of the misery associated with the practice of arraigo, Mexican authorities have little to show for it. Given the often clandestine nature of arraigo arrests, it is difficult to gauge just how many individuals detained by police actually ended up being convicted. Yet, according to the aforementioned report by CMDPDH, “Between 2011 and 2012, statements from the government indicate that only around 3.2% of all arraigo related cases resulted in convictions.”[xvii] Even more damning is the lack of sufficient evidence from authorities justifying their use of arraigo. If the program is effective in detaining individuals dangerous to themselves or society at large, then why is there such a dearth of evidence supporting its utility? This is especially pertinent given the relative ease with which the Mexican court system approves arraigo detainers. Between 2006 and 2012, only 8 percent of total arraigo requests submitted by prosecutors were denied. Unless police and military officials have been correct 92 percent of the time, there is a clear lack of proper oversight by the Mexican court system over the use of arraigo related pre-detentions.[xviii]

Indeed, one of the fundamental factors contributing to the problem of preventative detention seems to be a weakness of the court system when compared to the authority delegated to prosecutors. Mexican courts already suffer from severe resource limitations, and this lack of proper funding hamstrings their ability to adequately vet prosecutorial arraigo detainer requests, as well as other detainers for alleged crimes committed on a smaller scale, such as petty theft.[xix] A Wilson Center report found that only 1 in 5 cases are properly investigated, with an even smaller number of investigations leading to criminal convictions. With a weak and inefficient court system, criminal cases both large and small are hampered by endless backlogs. As a result, pre-trial detainees that make up roughly 40 percent of Mexico’s prison population are forced to wait months, or in some cases years for a proper judicial hearing.[xx]

Mexico’s inefficient courts, and the broader defects of its justice system, partially reflect the trouble of transitioning from the one-party rule of the PRI to an inclusive, multi-party democracy. While PRI unilateral political hegemony ended decades ago, the necessary development of a strong, independent judiciary– something critical to any democratic and free system of government– has still yet to crystallize. Power, for all intents and purposes, still lies in hands of the prosecutors, whose degree of autonomy in dealing with evidence, witness testimony, and general control over the judicial process is far greater than that of other elements within the underfunded court system.[xxi] Although the reforms implemented by the Mexican Congress in 2008 were meant to make the courts more “adversarial”– putting increased emphasis on due-process and the natural rights of the suspect accused of a crime– the courts still lack the authority and institutional strength to carry out this transition. [xxii]

On April 25th, 2013, the nongovernmental organization Human Rights Watch called on Mexico to abolish arraigo from the constitution.[xxiii] They have been joined by a chorus of voices, from the United Nations Human Rights Commission to Amnesty International, which have come out against the use of this dangerous program. Yet nearly four years later, federal police and military officials are still using the program. The utilization of preventative detention, along with the more extreme form of arraigo, have been a cancer on Mexico’s judicial process, and its democracy as a whole. While the government claims that these methods are effective in taking dangerous individuals off the streets, prison riots, overpopulation and torture are all they have to show for it. No healthy democracy can coexist while individuals are being held without due-process or habeas corpus. By abolishing the use of arraigo, as well as limiting the utilization of preventative detention more generally, the Mexican government will force itself to rethink and revitalize its judicial process. Reform should only stop when the justice system has shifted from arrest, detention, and the overall presumption of guilt, to a system where the accused are given fair, unbiased treatment, until sufficient evidence can be brought to bear to properly convict.

*Jack Memolo, Research Associate at the Council on Hemispheric Affairs

Additional editorial support provided by James Baer, Senior Research Fellow, Bjorn T. Kjlestad, Tomas Bayas and Gavin Allman, Research Associates at the Council on Hemispheric Affairs

Notes:
[i] Becerril, Daniel, and Sharay Angulo. “At least 13 killed during prison fight in northern Mexico.” Reuters. October 11, 2017. Accessed October 15, 2017. https://www.reuters.com/article/us-mexico-violence/at-least-13-killed-during-prison-fight-in-northern-mexico-idUSKBN1CG061?il=0

[ii] “MEXICO: New fatal prison riot raises old questions.” Latin News Daily. October 12, 2017. Accessed October 12, 2017. https://www.latinnews.com/component/k2/item/73905.html?period=%20&archive=33&search=Prison%20Riot&Itemid=6&cat_id=809430:mexico-new-fatal-prison-riot-raises-old-questions.

[iii] “Mexico.” Mexico | World Prison Brief. December 01, 2016. Accessed October 12, 2017. http://www.prisonstudies.org/country/mexico.

[iv] “MEXICO 2016 HUMAN RIGHTS REPORT.” Country Reports on Human Rights Practices for 2016, July 04, 2017.Accessed October 13, 2017.United States Department of State Bureau of Democracy, Human Rights, and Labor.

[v] “Overpopulation root of Mexico’s prison problems, says report.” Mexico News Daily. March 21, 2017. Accessed October 9, 2017. http://mexiconewsdaily.com/news/overpopulation-at-root-of-prison-problems/.

[vi] “In Depth.” BBC News. June 20, 2005. Accessed October 14, 2017. http://news.bbc.co.uk/2/shared/spl/hi/uk/06/prisons/html/nn2page1.stm.

[vii] Campoy, Ana. “In more than half of Mexico’s prisons, inmates have taken control.” Quartz. February 24, 2016. Accessed October 13, 2017. https://qz.com/622303/in-more-than-half-of-mexicos-prisons-inmates-have-taken-control/.

[viii] “MEXICO 2016 HUMAN RIGHTS REPORT.” Country Reports on Human Rights Practices for 2016, July 04, 2017.Accessed October 13, 2017.United States Department of State Bureau of Democracy, Human Rights, and Labor.

[ix] Campoy, Ana. “In more than half of Mexico’s prisons, inmates have taken control.” Quartz. February 24, 2016. Accessed October 13, 2017. https://qz.com/622303/in-more-than-half-of-mexicos-prisons-inmates-have-taken-control/.

[x] Deaton, Janice , and Octavio Rodríguez Ferreira. “Detention Without Charge: The Use of Arraigo for Criminal Investigations in Mexico.” Justice in Mexico-, January 2015 . Accessed October 15, 2017. Department of Political Science & International Relations

[xi] “Arraigo made in Mexico: A violation to human rights.” Comisión Mexicana de Defensa y Promoción de los Derechos Humanos, A.C. Organización Mundial Contra la Tortura, October 2012, 2-16. Accessed October 14, 2017. doi:10.18411/d-2016-154

[xii] “Mexico.” Mexico | World Prison Brief. December 01, 2016. Accessed October 12, 2017. http://www.prisonstudies.org/country/mexico.

[xiii] “Mexico 2009 Report .” United Nations Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, December 2009, Paragraph 225. Accessed October 14, 2017. United Nations.

[xiv] “Mexico 2009 Report .” United Nations Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, December 2009, Paragraph 225. Accessed October 14, 2017. United Nations.

[xv] “Arraigo made in Mexico: A violation to human rights.” Comisión Mexicana de Defensa y Promoción de los Derechos Humanos, A.C. Organización Mundial Contra la Tortura, October 2012, 2-16. Accessed October 14, 2017. doi:10.18411/d-2016-154

[xvi] Shirk, David A. “JUSTICE REFORM IN MEXICO: CHANGE & CHALLENGES IN THE JUDICIAL SECTOR*.” Mexico Institute- Wilson Center, January 13, 2011, 217 . Accessed October 23, 2017. The Wilson Center. https://www.wilsoncenter.org/sites/default/files/Chapter%207-%20Justice%20Reform%20in%20Mexico,%20Change%20and%20Challenges%20in%20the%20Judicial%20Sector.pdf

[xvii] “Arraigo made in Mexico: A violation to human rights.” Comisión Mexicana de Defensa y Promoción de los Derechos Humanos, A.C. Organización Mundial Contra la Tortura, October 2012, 2-16. Accessed October 14, 2017. doi:10.18411/d-2016-154

[xviii] “Arraigo made in Mexico: A violation to human rights.” Comisión Mexicana de Defensa y Promoción de los Derechos Humanos, A.C. Organización Mundial Contra la Tortura, October 2012, 2-16. Accessed October 14, 2017. doi:10.18411/d-2016-154

[xix] Kroc, Joan B. “Judicial Reform in Mexico-Change & Challenges in the Justice Sector .” Trans – Border Institute, May 7, 2010, 12-20 . Accessed October 17, 2017. https://justiceinmexico.org/wp-content/uploads/2016/07/2010_Shirk-Judicial-Reform-in-Mexico.pdf.

[xx] Shirk, David A. “JUSTICE REFORM IN MEXICO: CHANGE & CHALLENGES IN THE JUDICIAL SECTOR*.” Mexico Institute- Wilson Center, January 13, 2011, 217 . Accessed October 23, 2017. The Wilson Center. https://www.wilsoncenter.org/sites/default/files/Chapter%207-%20Justice%20Reform%20in%20Mexico,%20Change%20and%20Challenges%20in%20the%20Judicial%20Sector.pdf

[xxi] Shirk, David A. “JUSTICE REFORM IN MEXICO: CHANGE & CHALLENGES IN THE JUDICIAL SECTOR*.” Mexico Institute- Wilson Center, January 13, 2011, 217 . Accessed October 23, 2017. The Wilson Center. https://www.wilsoncenter.org/sites/default/files/Chapter%207-%20Justice%20Reform%20in%20Mexico,%20Change%20and%20Challenges%20in%20the%20Judicial%20Sector.pdf

[xxii] Kroc, Joan B. “Judicial Reform in Mexico-Change & Challenges in the Justice Sector .” Trans – Border Institute, May 7, 2010, 12-20 . Accessed October 17, 2017. https://justiceinmexico.org/wp-content/uploads/2016/07/2010_Shirk-Judicial-Reform-in-Mexico.pdf.

[xxiii] “Mexico: Abolish “Arraigo” Detention from Constitution:Proposals to Curtail the Practice Inadequate; Detainees at Risk of Torture.” Human Rights Watch. April 25, 2013. Accessed October 15, 2017. https://www.hrw.org/news/2013/04/25/mexico-abolish-arraigo-detention-constitution.