Mexican Drug Violence and Adversarial Experiments

26 Pages·2017·1.19 MB·English

by  Ronald F. Wright

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Volume 35 Number 2 Article 4
Winter 2010
MMeexxiiccaann DDrruugg VViioolleennccee aanndd AAddvveerrssaarriiaall EExxppeerriimmeennttss
Ronald F. Wright
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iss2/4
Mexican Drug Violence and Adversarial Experiments
Ronald F. Wrightf
I. Introduction ....................................................................... 363
II. Recent Drug Violence in Mexico ...................................... 364
III. Movement Away From the Inquisitorial System in
M ex ico ............................................................................... 369
A. The Traditional Latin American Model ...................... 370
B. The Traditional Mexican Model ................................. 371
C. Mexican Code Revisions ............................................ 374
D. Framing the Code Revisions ....................................... 376
IV. Cause-Effect Relationship Between Drug Violence and
Procedural Reforms in Mexico .......................................... 378
A. The Inevitability Hypothesis ....................................... 379
B. Violence-as-Causation Hypothesis ............................. 380
V. Conclusion: Federalism and the Legitimacy Question in
M exico ............................................................................... 3 84
I. Introduction
Observers of the Mexican criminal justice system today cannot
help but notice two remarkable developments. First, the country is
suffering through wrenching violence connected with the drug
trade. The violence amounts to far more than background noise,
rising to a level that some regard as a "civil war,"' or evidence
that Mexico could become a "failed state."2 Second, Mexico has
tProfessor of Law and Associate Dean for Academic Affairs, Wake Forest University
School of Law. This essay grows out of a speech delivered at the University of North
Carolina in April 2008. I am grateful to Professor Michael Corrado for organizing the
conference, and to the participants in the conference for their perceptive observations
about my project.
I Arthur Brice, Drug Violence Spins Mexico Toward 'Civil War', CNN, Feb. 19,
2009, http://www.cnn.com/2009/WORLD/americas/02/18/mexico.drug.violence/
index.html.
2 "The government thus becomes both an arena for competition among the cartels
and an instrument used by one cartel against another. That is the prescription for what is
called a 'failed state'-a state that no longer can function as a state." George Friedman,
Mexico: On the Road to a Failed State?, STRATFOR, May 13, 2008,
N.C. J. INT'L L. & CoM. REG. [Vol. XXXV
embarked on procedural changes at both the federal and state
levels. The effort has achieved more than procedural tinkering at
the edges, creating some base-level changes at the constitutional
and statutory level in the legal machinery that responds to crime.
Many characterize this procedural transformation as a shift
from an inquisitorial to an adversarial model of criminal
procedure. I suggest, however, that the reforms do not simply
endorse the strengths of a particular adversarial fact-finding
method. Rather, the principal virtue of the new criminal codes in
Mexico turn on their efforts to balance powers. In particular, the
codes create meaningful competition for the public prosecutors in
Mexico during the investigation, trial, and punishment of alleged
criminals.
The drug violence in Mexico and the revision of state and
federal criminal codes in that country are both stories that deserve
intense scrutiny, standing alone. Taken together, they are riveting.
This article will review these developments and consider the
connections between them, both in the past and the future.
Looking back, did one development cause the other, or did they
both flow from a single cause? Looking forward, will the
procedural reform make it easier to respond to the drug violence?
Or will the drug violence distort or disable the procedural reform?
Writ large, these two developments in Mexico raise this basic
challenge for lawyers everywhere: Does procedure matter at all in
conditions of extreme violence and disorder? Does a debate about
adversarial versus inquisitorial justice amid ghastly violence
resemble a debate about iPods versus other MP3 players in a
household where nobody has enough to eat? Alternatively, is an
orderly and legitimate procedure the best hope under extreme
conditions of disorder?
II. Recent Drug Violence in Mexico
The troubles of the Mexican criminal justice system date back
http://www.stratfor.com/weekly/mexicoroadfailed_state; see also Ted Galen
Carpenter, Drug Gangs Winning the War for Mexico, HOUSTON CHRON., Feb. 6, 2009,
available at http://www.chron.com/disp/story.mpl/editorial/outlook/6251540.html; see
also Sara Miller Llana, How Mexico is Waging War on Drug Cartels, CHRISTIAN SCI.
MONITOR, Aug. 16, 2009, at 10 (Pentagon report warned in Winter 2009 that Mexico
could become a "failed state").
20101 MEXICAN DRUG VIOLENCE
to the earliest days of the nation.3 The events that capture our
attention at present, however, began with the national presidential
election campaign of 2006. Three candidates represented the three
major parties in the effort to succeed Vincente Fox. Felipe
Calder6n, like Fox, was the nominee of the National Action Party
(the Partido Acci6n Nacional, or PAN), a right-of-center party.4
The Democratic Revolution Party (the Partido de la Revoluci6n
Democrdtica, or PRD), a left-of-center party, nominated Andrds
Manuel L6pez Obrador.5 Roberto Madrazo represented the
Institutional Revolutionary Party (the Partido Revolucionario
Institucional, or PRI).6 The election presented a novel experience
for the voters, because the PRI had dominated Mexican politics for
most of the twentieth century.7 After Vincente Fox broke the
political monopoly of the PRI, familiar political truths in Mexico
no longer applied.
Calder6n won an extremely close election, amid reports of
voting irregularities.8 The PRD disputed the legitimacy of this
outcome, and Obrador refused to recognize Calder6n as
President.9 As a result of the extended turmoil after the election,
Calder6n believed that he needed to take some unifying actions
early in his tenure. He moved against drug cartels to create a
sense of law and order that many voters were missing.
The new President's offensive against the cartels faced
daunting odds. "[Drug] cartels [brought] in billions of dollars
more than the Mexican government spent to defeat them."1 Cartel
3 See generally LAWYERS COMMITTEE FOR HUMAN RIGHTS, LEGALIZED INJUSTICE:
MEXICAN CRIMINAL PROCEDURE AND HUMAN RIGHTS (2001) (highlighting deeply-
embedded traditions in Mexican criminal procedure as the root of human rights
concerns).
4 Mexican PresidentialE lection: Political Crossroad,H OUSTON CHRON., July 2,
2006, at A26.
5 Id.
6 Id.
7 See Dudey Althaus & Marion Lloyd, In What May be a Sign of What's to Come,
Calderon Takes Office Amid Brawling Congress, HOUSTON CHRON., Dec. 2, 2006, at Al.
8 See Mexico's Presidential Election: The Closest of Victories: Mexico's
PresidentialE lection, ECONOMIST, July 8, 2006, at 31.
9 See Chris Hawley, Mexican Says He's 'Legitimate' President; Lopez Obrador
Touring Country, Hasn't Conceded, USA TODAY, Dec. 19, 2007, at 8A.
10 Marc Lacey, In an EscalatingD rug War, Mexico Fights the Cartels, and Itself,
N.Y. TIMES, Mar. 30, 2009, at Al.
N.C. J. INT'L L. & COM. REG. [Vol. XXXV
leaders spent a portion of their wealth bribing police, mayors, and
some higher-level officials, including some who worked in the
customs service and others in the prison system.11 Even in the
army, considered less corrupt than the police, "defense officials
estimated that 100,000 soldiers have quit to join cartels over the
previous seven years."12 President Calder6n himself received
death threats from cartels during the election campaign, suggesting
that the new President held a personal commitment to this policy
priority. 13
Because the cartels' bribery of the police remained a pervasive
problem, Calder6n was unable to call on existing structures of law
enforcement.14 Instead, he sent the army into the fight, devoting
more than 40,000 troops to the effort. 15 Mexico started extraditing
record numbers of drug suspects to the United States for trial,
revealing the loss of confidence of political leaders in the Mexican
judicial system. 16
The military offensive against the drug cartels offered some
early positive results. The campaign produced record seizures of
drugs, money, and guns, along with tens of thousands of arrests
which depleted the ranks of the four main Mexican drug cartels.17
Mexican authorities announced in April 2009 that they had
arrested over 60,000 people for drug crimes over the past two
years.18 The government claimed to have reduced the number of
"zones of impunity" from 2,204 down to 233."9 Enforcement
efforts against cartels uncovered a large number of high-level
officials and police officers who had collaborated in criminal
11 See Tracy Wilkinson, Mexico Under Siege: Calderon Shifts Tactics in Fight
With Drug Gangs, L.A. TIMES, May 28, 2009, at A20.
12 Lacey, supra note 10.
13 See id.
14S ee James C. McKinley Jr., Mexico Hits Drug Gangs with Full Fury of War,
N.Y. TIMES, Jan. 22, 2008, at Al.
15 Enrique Krauze, Op-Ed., The Mexican Evolution, N.Y. TIMES, Mar. 24, 2009, at
A27.
16 See Oscar Avila, Mexico Shifts Course, Aggressively Extradites Suspects to U.S.,
CHI. TRIB., Jan. 13, 2009.
17 See Marc Lacey, The War's Origins, N.Y. TIMES, Mar. 30, 2009, at A12.
18 William Booth & Steve Fainaru, Mexican Drug Fight Nets 60,000 Suspects,
WASH. POST, May 1, 2009, at A10.
19 Lacey, supra note 10.
2010] MEXICAN DRUG VIOLENCE
enterprises.2°
Drug organizations traffic in violence, and the cartels
responded violently to the government's offensive. There were
6,200 drug-related killings in 2008 (double the number of drug-
related killings in 2007).:l Some of these killings involved
multiple executions or mutilations of the victims' bodies.22 Some
of the deaths were attributed to intra-organization discipline, while
others resulted from struggles among the major cartels.23 Many of
the killings, however, targeted law enforcement agents, along with
a few killings of civilian bystanders.24
Soldiers in Mexico started to cover their faces while on patrol,
because their families faced retribution if the drug traffickers
recognized them.25 The Mexican army allowed soldiers to grow
their hair longer, so they were not so easy to identify as soldiers
while off-duty.26 In one riveting incident early in 2009 in Ciudad
Judrez, drug traffickers demanded the resignation of police chief
Roberto Ordufia Cruz, and vowed to kill one police officer every
48 hours until he resigned.27 They carried out the threat by killing
the deputy chief of the department, another police officer, and a
prison guard.28 Ordufia resigned after a few days.29 The federal
government then deployed 5,000 soldiers to Ciudad Judrez and the
surrounding state of Chihuahua.3"
Mexicans actively debated the wisdom of Calder6n's
20 See Wilkinson, supra note 11.
21 Editorial, Death and American Guns in Mexico, N.Y. TIMES, June 25, 2009, at
A22. See Diana Washington Valdez, UTEP Drug Conference: New Cartel Methods
Widen Drug War's Toll, EL PASO TIMES, Sept. 21, 2009,
http://www.elpasotimes.com/ci 13384214 (explaining that 12,000 violent deaths
occurred during first two years of Calderon initiative).
22 See William Booth, 12 FederalA gents are Slain in Mexico, WASH. POST, July
15, 2009, at A9.
23 See Lacey, supra note 10.
24 See Booth, supra note 22.
25 See Lacey, supra note 10.
26 See id.
27 Marc Lacey, With Deadly Persistence, Mexican Drug Cartels Get Their Way,
N.Y. TIMES, Mar. 1, 2009, at Al.
28 See id.
29 See id.
30 Id.
N.C. J. INT'L L. & COM. REG. [Vol. XX-XV
aggressive strategy against the cartels.3 For some, it was all a
colossal mistake: "Calder6n took a stick and whacked the
beehive."32 The involvement of the military in criminal law
enforcement also apparently resulted in an increase in human
rights violations against suspects.33 The government's plan
seemed inspired by the United States plan to counter narcotics in
Colombia, a dispiriting analogy that led some to predict a
prolonged violence in the country with little or no gains in public
order.34 Overall, however, the public still supports the Calder6n
initiative against the cartels.35
Remarkably, the extreme conditions of violence led the federal
govermment in Mexico to pass a law in August 2009 legalizing the
possession of some small amounts of drugs for personal
consumption.3 The government's stated strategy was to focus
'
more of its limited law enforcement resources on small-time
sellers of drugs.37
In the United States, concern about Mexico intensified.38 The
legalization of certain drug possession prompted worries that
greater drug use would spread to the United States, as easy access
31 See Lacey, supra note 10.
32 Id.
33 See Booth & Fainaru, supra note 18.
34 See Lacey, supra note 10; see also Leslie Berestein, Can Mexico Learn from
Colombia's Drug War?, S.D. UNION-TRIB., Feb. 16, 2009, at Al. See generally The
Center for International Policy's Colombia Program, "Plan Mexico" and Plan Colombia:
Similarities and Differences (2007), http://www.cipcol.org/?p=487 (last visited Feb. 19,
2010) (comparing the two plans and warning of the potential dangers of Mexico utilizing
a strategy similar to Colombia's).
35 See Mica Rosenberg, Mexican Army Will Fight Drug War for Years: Report,
REUTERS, Apr. 21, 2009, available at http://www.reuters.com/article/newsMaps/
idUSN1654810320090421; see also Editorial, A Promising Turn for Mexico, S.F.
CHRON., July 23, 2009, at D4.
36 See Oscar Avila, Mexico Weighs a Change of Focus on Drugs, CH. TRIB.,
October 19, 2008 at A7; Sara Miller Llana, Legalization of Drugs Spreads in Latin
America. Will the US Follow? CHRISTIAN SCI, MONITOR, Sept. 23, 2009, at 6; Tracy
Wilkinson & Richard Marosi, Mexico Shifts Tactics in Drug Battle, L.A. TIMES, Aug. 23,
2009, at A21.
37 See Marc Lacey, In Mexico, Ambivalence on a Drug Law, N.Y. TIMES, Aug. 24,
2009, at A4.
38 See generally Op-Ed., Surrender: Mexican Congress Weakens Drug Laws, S.D.
UNION-TRIB., Aug. 26, 2009, at B6 (explaining the controversy over Mexico's
decriminalization of marijuana).
2010]
MEXICAN DRUG VIOLENCE
would be just across the border.39 Secretary of State Hillary
Clinton spoke in early 2009 about the possible spillage of Mexican
violence over the border into the United States, while
acknowledging the American role in creating the violent
environment.4° It is largely demand from the United States for
drugs that makes the drug business profitable, and the United
States' commerce in firearms that makes the cartel business more
deadly.4
III. Movement Away From the Inquisitorial System in Mexico
Which legal actors and institutions in Mexico can respond to
such drug violence? The relevant players in Mexican criminal
justice, and their capacity to respond to crime, are changing just as
rapidly as the drug violence in the country.
Mexico, broadly speaking, draws on the civil law tradition,
which employs an inquisitorial model of criminal justice.42 Like
much of Latin America, Mexico inherited its procedural template
from Spain.43 Today, however, Mexico offers a different take on
the civil law system than most other Latin American countries.44
The distinctions between the Mexican model and the inquisitorial
39 See Julie Watson, Mexico's Liberal New Drug-Use Law Worries U.S. Police,
THE DESERET NEWS (SALT LAKE CITY), Aug. 27, 2009, at Al.
40 See Ken Ellingwood, Clinton: U.S. Shares Blame for Mexico Ills, L.A. TIMES,
Mar. 26, 2009, at Al. Secretary Clinton stated that "[w]e know very well that the drug
traffickers are motivated by the demand for illegal drugs in the United States, that they
are armed by the transport of weapons from the United States to Mexico." Id.
41 See id.; see James C. McKinley, Jr., U.S. Stymied as Guns Flow to Mexican
Cartels, N.Y. TIMES, Apr. 15, 2009, at Al.
42 See Craig M. Bradley, Overview, in CRIMINAL PROCEDURE: A WORLDWIDE
STUDY xv (Craig M. Bradley ed., 2d ed. 2007) (discussing the inquisitorial (or civil law)
approach and the accusatorial (or common law) approach to criminal procedure).
Professor Giulio Illuminati distinguishes accusatorial from inquisitorial systems. Giulio
Illuminati, The Frustrated Turn to Adversarial Procedure in Italy (Italian Criminal
Procedure Code of 1988), 4 WASH. UNIV. GLOBAL STUD. L. REv. 567, 568-69 (2005)
(viewing as accusatorial any model that strictly separates the investigating phase from
the trial. Under the inquisitorial model, "decisions are based on evidence gathered
unilaterally and in secret during the preliminary investigations by the investigating
judge.").
43 See STEPHEN ZAMORA ET AL., MEXICAN LAW 11 (2004); Maximo Langer,
Revolution in Latin American Criminal Procedure: Diffusion of Legal Ideas from the
Periphery,5 5 AM. J. CoMP. L. 617, 628 (2007).
44 See Bradley, supra note 42, at 351-52.
N.C. J. INT'L L. & COM. REG. [Vol. XXXV
systems in other Latin American countries explain why criminal
justice reform in Mexico concentrates more on the role of public
prosecutors.45
A. The TraditionalL atin American Model
The classic Latin American inquisitorial codes contain two
features that distinguish them from systems that tend to be more
adversarial.46 First, the Latin American criminal codes generally
provide a written process that accumulates evidence over time, as
opposed to an oral process that concentrates proof into a shorter
time frame.47 Second, the inquisitorial codes assure the quality of
evidence through professional standards of the investigating
officer-that is, the judge-rather than through a testing of the
evidence from the defendant armed with several pre-declared
rights, or through presentation of evidence to lay adjudicators such
as jurors.48
Latin American inquisitorial codes typically divide the
criminal process into two stages: A pretrial investigation (sumario
45 Id. at 352-55.
46 See generally ZAMORA ET AL., supra note 43, at 364-68 (stages of the Mexican
criminal process); see also JOHN H. MERRYMAN & ROGELIO PEREZ-PERDOMo, THE CIVIL
LAW TRADITION 127-29 (Stanford University Press 3d ed. 2007) (1969) (general
descriptions of inquisitorial criminal justice systems).
47 See ZAMORA ET AL., supra note 43, at 364; cf JACQUELINE HODGSON, FRENCH
CRIMINAL JUSTICE: A COMPARATIVE ACCOUNT OF THE INVESTIGATION AND PROSECUTION
OF CRIME IN FRANCE 31-32 (2005) (describing the similar system used for evidence
collection in France's inquisitorial system).
48 See ZAMORA ET AL., supra note 43, at 365, 368 (explaining the virtual absence of
jury trials and summarizing the evidentiary stage of Mexican criminal procedure); see
also Langer, supra note 43, at 629 (explaining the limited rights of defendants in
traditional inquisitorial Latin American systems); see also MERRYMAN & PEREZ-
PERDOMO, supra note 46, at 127-29 (comparing the common law accusatorial system
with the civil law inquisitorial system); cf John H. Langbein & Lloyd L. Weinreb,
Continental CriminalP rocedure: "Myth" andR eality, 87 Yale L.J. 1549, 1551-67 (1978)
(describing the French and German versions of the inquisitorial tradition); cf Jenia
Iontcheva Turner, JudicialP articipationi n Plea Negotiations: A Comparative View, 54
AM. J. COMp. L. 199, 215 (2006) (summarizing the German inquisitorial model). See
generally Abraham S. Goldstein, Reflections on Two Models: Inquisitorial Themes in
American Criminal Procedure, 26 STAN. L. REV. 1009, 1020 (1974) (focusing on the
role of the judge and the rights of the accused in the traditional inquisitorial model);
David Alan Sklansky, Anti-Inquisitorialism,1 22 HARV. L. REV. 1634 (2009) (contrasting
the inquisitorial system with the American adversarial system, and focusing on the rights
of defendants).