¿Dónde están los datos?: New Working Paper

06/30/20 — Justice in Mexico, a research-based program at the University of San Diego, released a working paper by Héctor Esteban García García entitled, “¿Dónde están los datos? Reflexiones, conclusiones y retos en la compilación de indicadores de desempeño del Sistema de Justicia Penal Acusatorio.” The study is a result of the #encifras project that compiles a series of indicators curated by Justice in Mexico as part of the “Justicia en Marcha” initiative to measure the Accusatorial Criminal Justice System (Sistema de Justicia Penal Acusatorio, SJPA). Specifically, it analyzes the process of collecting such information and the conclusions that can be drawn from the data. It then highlights the challenges that the SJPA faces and offers several recommendations on ways to strengthen the system’s evaluation process. The results suggest that although some information is sufficiently shared, there is room for improvement. If tracking and reporting was completed on time and in full, it could ultimately strengthen the functioning of the SJPA.

García García describes the complex process employed to gather information related to the functioning of the SJPA. This consisted of identifying 49 indicators that could be used to track the use of specific penal system tools. This included indicators that reflect acts from the crime reporting stage, those that occurred during mediation or restorative justice when the case is not funneled through the whole judicial process, and those that occurred during the court stage (e.g., investigations initiated, oral trials, and courtroom sentences). He drew information on these indicators from 77 public documents spanning 20 Mexican states. He also conducted a series of information requests from the 33 attorney generals or public prosecutor’s offices, and from the 33 judiciaries (both state and federal). Additionally, from April 2018 to July 2019, García García filed requests, which led to 309,141 pieces of data submitted pertaining to the SJPA between 2012 and 2019. This allowed Justice in Mexico to create a robust dataset from which he could analyze the SJPA.

The working paper analyzes who actually shared information, from where, when, and in what quantity. Ultimately, 73% of attorney generals and public prosecutor’s offices and 76% of judiciaries submitted the requested data. Because a quarter of respondents did not share disaggregated information, the author had to aggregate the information using the common denominator to standardize the indicators. By lumping the indicators all into one state-wide yearly total, as 25% of the states did, this prohibits one from analyzing the SJPA’s functioning at the judicial district level based on each indicator. This ultimately hampers one’s ability to evaluate the SJPA and to make necessary improvements or modifications to strengthen the system.

The author also noted that on average, respondents only submitted 74% of the information that was requested. States in the north, south, and southeast of Mexico reported more information than those in central Mexico and along the Gulf Coast. Five states – Campeche, Durango, Hidalgo, Oaxaca, and Quintana Roo – submitted 100% of the information requested, whereas Guerrero and Querétaro only turned in about 10% each.

García García also highlighted the everchanging capacity and availability of judicial system operators to be able to respond to such information requests. Additionally, those that do respond oftentimes do not use consistent reporting mechanisms, thus making it difficult to analyze data trends over time. For example, the Aguascalientes’ Judiciary only reported 15% of information requested during the first solicitation, but jumped to 51% by the fourth. The State of México similarly increased from 30% reporting to 90% by the end. Other states’ reporting fluctuated, too, but in the reverse, going from higher reporting during the first few solicitations and dropping considerably over time.

Finally, the author noted that much of the data submitted was not detailed enough to allow for the sufficient evaluation of SJPA indicators. This included information pertaining to the use of pre-trial detention (prisión preventiva) and the lack of detail by some states on alternative justice methods used, such as mediation, reconciliation, and restorative justice, all of which are key components of the SJPA.

From the data collected, García García concluded several points about the SJPA’s use, functioning, and effectiveness throughout Mexico.

  • First, the data suggests that the tools that make up the penal system are more frequently used in northern, southern, and southeastern Mexico. When the tools are employed (e.g., oral trials, mediation), it results in quicker trials, reparation agreements, and ‘conditional suspension of the process’ (suspensión condicional del proceso), a special alternative justice procedure that suspends the process when the accused complies with a series of conditions and a reparation plan. The conditional suspension was ultimately found to be the most frequently used tool within the penal system nationwide.
  • Second, pre-trial detention (prisión preventiva) is still used in 38% of the cases when comparing it to the number of indictments reported (autos de vinculación a proceso). Pre-trial detention is used far more widely in some states (e.g., Michoacán, Sonora, Yucatán) than in others (e.g., Baja California Sur, Coahuila, Zacatecas). Still in 51% of the cases, pre-trial detention was mandated by law based on the crime (de oficio).
  • Finally, the information confirmed that oral trials were only used in about 11% of cases when considering the number of indictments reported. García García noted that this could be proof that one of the main objectives of the SJPA – to decrease the number of cases that go through to full trial – could actually be being achieved. Ultimately, the author concluded that judicial systems operators are not taking advantage of all of the penal systems’ tools.

Given the conclusions drawn from the data collected, García García identified three main challenges that face the SJPA.

  • The first he notes is making sure the National Transparency Platform (Plataforma Nacional de Transparencia) is functioning optimally. This platform is intended to be the avenue through which information requests are submitted and responded. Considering the inconsistencies and lack of comprehensive responses that the author received for this Working Paper, he highlighted the concern that civilians are being denied access to full information when they request it.
  • The second major challenge is the lack of instruments or avenues in place to guarantee that attorneys generals, public prosecutors, and judiciaries provide information when called upon. The author drew attention to the Unidades de Transparencia, or the governmental units that are intended to respond to these information requests, highlighting their limited operational capacities as a weakness in the system.
  • The third hurdle that faces the SJPA is the inconsistent reporting by states on penal system processes and tools, and the lack of accountability to ensure they properly and timely respond to information requests. In order to do so, the author suggests charging the Executive Secretariat of National Public Security (Secretariado Ejecutivo del Sistema Nacional de Seguridad Pública, SESNSP) or the National Institute of Statistics and Geography (Instituto Nacional de Estadística y Geografía, INEGI) – two agencies who regularly work with data and information – with overseeing the tracking and management of SJPA data. He also suggests the Legislative Branch become more involved, specifically reforming an article in the General Transparency Law (Ley General de Transparencia), among others, that currently leaves the states’ obligation to disaggregate data somewhat ambiguous.

The author offered three key reflections at the conclusion of the Working Paper.

  • First, he reiterated that the data used for this publication was incomplete due to the fact that nearly one third of all respondents did not submit comprehensive or uniform information. Therefore, it was insufficient to fully evaluate the level at which SJPA tools are being utilized and employed.
  • Second, the data showed that some SJPA tools are indeed used more regularly than others, such as the conditional suspension. Meanwhile, the common use of pre-trial detention is concerning.
  • Finally, García García concludes that the challenges of reporting timely and complete data need to be overcome so that analyses of the SJPA can truly focus on improving the system’s functioning and efficiency.

About the Author:

Héctor Esteban García García is a Mexican lawyer native from Aguascalientes. He graduated from the School of Law at the National Autonomous University of Mexico (UNAM) and is currently enrolled in a graduate program on Justice, Victims, and Peace Building at the National University of Colombia. He has collaborated with non-governmental organizations dedicated to human rights training and analysis of the criminal justice system in Mexico and has actively collaborated at UNAM’s Human Rights Program. Since 2016, he is a Research Associate at University of San Diego’s Justice in Mexico. His academic and professional interests include criminal justice, transitional justice, and human rights.

Mexican Congress approves changes to bail system, drawing criticism

Results of Senate vote on December 6, 2018.

The Senate voted 91 to 18 in favor of amending Article 19 of the Mexican Constitution on December 6, 2018. Source: Noticias Acapulco News

12/10/18 (written by Kimberly Heinle) — The Mexican Senate approved reforms to Article 19 of the Mexican Constitution on December 6 that expands the crimes for which one can be held without bail. Individuals accused of misusing public funds for electoral means, sexually abusing minors, and forcibly disappearing persons, among others, may now be held without bail. The reform passed the Senate with 91 votes in favor and 18 against.

Despite the broad approval, the legislation faced some opposition within the Senate, namely from those outside of the ruling political party, MORENA (Movimiento de Regeneración Nacional). Only one MORENA Senator, Nestora Salgado (Guerrero), voted against the reform. Salgado agreed with concerns expressed by the United Nations that the reform could lead to human rights abuses, particularly that of Mexico’s vulnerable populations. While debating the law, Salgado took to Twitter to express her stance. She said, “We are debating the new law #FiscalíaEficiente / Morena does not want more violence nor more impunity. We are in the Fourth Transformation, acting with ethics and respecting the task with which the public has entrusted us.” For its part, the United Nations argued that the practice of being held without bail goes against “the humans rights of liberty, personal security, a fair trial, due process, and judicial guarantees.”

CNDH President

National Commission of Human Rights (CNDH) President Luís Raúl González Pérez. Source: La Jornada.

Luís Raúl González Pérez, president of Mexico’s National Commission of Human Rights (Comisión Nacional de Derechos Humanos, CNDH), also criticized the reform. He called it a “regressive” initiative, arguing that Congress should have prioritized the training and professionalization of the justice system operators first. Otherwise, he added, any charge brought forth opens the door to the suspect being held indefinitely due to the inefficiencies of the system’s operators to provide swift justice.

Mexico’s court system has long been criticized for the lengthy times that the accused have been detained while their case is processed. The New York Times, for example, recently highlighted one individual who has been held without sentencing for over 16 years. One element of the Accusatorial Criminal Justice System (Sistema de Justicia Penal Acusatorio, SJPA) that seeks to mitigate situations like that is the limit it places on the amount of time a suspect can be detained before trial. This appears to now be at odds with the Senate’s recent approval.

Congress will evaluate the reform’s success and effectiveness in five years.

Sources:

Villegas, Paulina. “La justicia en México: dieciséis años en prisión, preventiva sin sentencia.” The New York Times. November 13, 2018.

Olivares Alonso, Emir. “Regresiva’, reforma para ampliar prisión preventiva: CNDH.” La Jornada. December 4, 2018. 

Ballinas, Víctor y Andrea Becerri. “Ampliar en el país la prisión preventativa, peligroso: ONU.” La Jornada. December 5, 2018. 

“Nestora Salgado, la única senadora de Morena que votó contra reforma de prisión preventiva.” SDP Noticias. December 6, 2018.