Mexico's War on Impunity

The Blame Game: What War is Mexico Fighting?

While Mexican President Felipe Calderon has received endless plaudits for his strong stance against drug cartels, the United States has been blamed for doing too little to curb the violence, even though it is the biggest market for drugs. As the violence enters its fourth year, many fault American drug users for providing the cash incentive for cartels, and the American gun market for providing the cartels' firepower. The consensus is that the United States must reform its drug laws and tighten its gun laws for the violence to subside. In fact, Calderon himself recently took the U.S. to task, blaming America for his country's woes. But Calderon's much-vaunted crackdown has been terribly misunderstood by both sides.

The real culprit here isn't America's addiction to drugs, but rather Mexico's addiction to criminal impunity. We don't all need to read Roberto Bolaño novels to discover that in Mexico rapes go unsolved, murders remain a mystery, bribery runs rampant, and yes, drugs move freely. So while it is pretty easy to scapegoat the United States, the main problem is not America's insatiable thirst for drugs (though that hasn't helped), but rather Mexico's ineffective criminal justice system. Indeed, President Calderon's real motive for cracking down on the drug cartels was to finally put an end to the lawlessness that reigns supreme throughout Mexico.

The conflict that Calderon is waging isn't so much a "war on drugs," as much as it is Mexico's first War on Impunity.

The Rule of Law in Mexico: Fostering a Culture of Impunity

Over the last twenty-five years most countries in Latin America have made great strides toward electoral democracy (Cuba is obviously an exception). Despite these advances, the rule of law has remained stubbornly porous. Although economic and social ills are often blamed, the region's antiquated criminal code is the biggest reason that Latin America's rule of law has languished, while other democratic pillars have flourished.

Accordingly, many nations in the region have begun to recognize how important criminal procedure reform is to democratic reform, and have enacted changes to their criminal code in an effort to curb impunity, reign in corruption, and cure the criminal epidemic. Guatemala and Chile are notable examples of countries that have reformed their criminal justice system -- moving away from archaic inquisitional models to embrace more adversarial elements. Mexico should pay attention.

In contrast, Mexico's criminal justice system isn't just broken; it's stuck in the past. In fact, Mexico's criminal code hasn't really changed in over 100 years: it still bears striking resemblance to the inquisitorial code it inherited from Spain 400 years ago.

For instance, pursuant to its civil law tradition, Mexico's criminal procedures often allow the same person who handled an investigation to also serve as the trial judge. This ensures that the proceedings are neither fair nor impartial. It is not difficult to understand why this concentration of procedural responsibility has been a lose-lose for Mexico. On the one hand, the process is easily short-circuited by bribes and threats, since criminals know that each step of the process pivots on the decision of one person, rather than many. On the other hand, if the proceeding does proceed to the trial phase, the system is rigged against the defendant since the same person who decided to bring charges will also often determine guilt or innocence.

In effect, Mexico's criminal procedure code presents a Catch-22: either criminals are let off the hook because judges are easily bribed or intimidated, or the proceedings are adjudicated in a biased manner to the detriment of those who could not afford to bribe or intimidate their way out. Criminals who are flush with drug money and supported by cartel artillery can easily avoid conviction by simply paying (or threatening) the right person.

But even if courts were willing to adjudicate more cases in an honest way, the inefficiencies inherent in Mexico's criminal procedure system have created an almost insurmountable backlog of cases. To illustrate, while 95% of all convictions in the United States end in plea bargains, in Mexico this procedure is largely unavailable. The inefficiency of not allowing plea bargains has been a major factor behind the astronomical levels of impunity because there simply are not enough courtrooms or prosecutors to try every criminal. Instead, most criminals walk free.

What Mexico needs isn't piecemeal legal reform; Mexico needs structural reform. The system that's tasked with enforcing its laws is utterly bankrupt. (What's the point of criminalizing drug trafficking if you can't enforce it? What's the point of murder and rape statutes if you can't prosecute murderers and rapists?)

As a result, the balancing act that every society confronts -- between individual rights and societal security -- has been completely perverted in Mexico. All too often Mexico's criminal justice system facilitates torture and police abuse for those too helpless too poor, while failing to actually combat crime. More than any drug cartel or criminal organization, Mexico's teetering criminal justice has been the biggest contributor to its absolute rate of impunity.

In particular:

  • the police force is woefully understaffed, stretching resources and inviting abuse;
  • prosecutors are imbued with tremendous powers, unchecked by a passive and corrupt judiciary, leading to prosecutorial indiscretions; and finally,
  • poorly trained public defenders give defendants scant chance at a fair disposition, rarely challenging violations of substantive and procedural rights.

This institutional underdevelopment becomes both cause and effect of Mexico's culture of impunity. Now more than ever Mexico must rewrite its criminal code or risk becoming a narco-state, where the only real authorities will be the drug cartels.

Don't Call It a War on Drugs

This is why calling Mexico's violent struggle against criminal kingpins a "war on drugs" is both simplistic and misleading. Labeling this conflict a "war on drugs" focuses our attention solely on a commodity, rather than the culture of lawlessness the commodity exemplifies. What Mexico faces today is more than just a war on drugs -- it is Latin America's first major war on impunity. Fundamentally, this conflict is a legal catastrophe.

Given that the battle is indigenous -- that is, within Mexico itself -- there is no alternative: President Calderon cannot retreat within his own borders, he cannot cede Mexican territory to armed militants, and he cannot end the conflict by signing a peace treaty. The only acceptable option is for the Mexican government to consolidate the rule of law. Anything less would signal defeat. This call to victory, however, is easier said than done, since the cartels are often more armed than Mexican police forces, deploying weapons that are legal in the U.S., but illegal in Mexico.

The violence is already placing substantial strains upon Mexico's understaffed and overwhelmed legal system. Since President Calderon began his nationwide crackdown on drug cartels in December 2006, over 23,000 people have died, including 3,500 deaths so far this year -- and it's only getting worse. Additionally, over 50,000 suspects have been detained. As the government continues its battle against drug cartels, weapons smugglers, corruption, and other social ills, thousands more will be arrested, and thousands more will perish. The question is whether the Mexican criminal justice system can effectively process these arrests and stem the violence, while simultaneously implementing a reform mandate. The answer is not so clear.

What is clear, however, is that it is imperative that the criminal justice system not collapse. For if it does Mexico's government will face a rather Faustian choice: either not process the criminals it has caught or will catch (lawlessness), or descend into a state of martial law (sacrificing its hard-earned democracy). It's clear that Mexico is now at a unique point in its own history, where one wrong turn may lead to chaos, and another may lead to tyranny. The Mexican government's struggle to combat drug-related criminality will fail if the country's criminal justice system does not embrace structural reforms.

The current quagmire did not happen overnight, and it will not be cured immediately. It may take as long as a generation for Mexico's new criminal justice system to fully mature into an independent, self-sustaining institution. Training takes time, allocating resources takes devotion, and fighting corruption takes commitment. And unfortunately for Mexico, these reforms will not be implemented in a vacuum, but rather during the costliest and most destructive internal struggle the country has ever faced. The next several years, however, will be absolutely critical.

Mexico desperately needs a legal system that fosters economic development and democratic consolidation, protects the due process rights of criminal defendants, and functions more efficiently and transparently. To curb an unwelcome export from Mexico (illicit drugs), perhaps the U.S. should consider exporting a commodity of its own: the rule of law.

Calderon can't win this war by blaming the United States. The only way to win is to defeat the forces of impunity. It's time for Mexico to invest in a modern criminal justice system.

David A. Perez is a graduate of Yale Law School and the author of "America's Cuba Policy: The Way Forward."