SANTA FE, NM- Shared challenges necessarily require shared solutions. And Mexico’s drug violence, which has killed tens of thousands this decade and spurred “spillover” fears north of the border, is no exception. Since 2008, U.S. and Mexican officials have embraced the rhetoric of “shared responsibility,” meaning that both countries bear blame for the violence and should shoulder the costs of resolving it. On the U.S. side, blame springs from high levels of domestic drug consumption, north-south arms trafficking, and bulk cash smuggling. Mexico is to blame for its weak police and courts, vulnerable as they are to the infiltration and cooptation of cartels, whose power has been aggrandized by certain corrupt Mexican authorities for years.
On the responsibility side of the equation, the doctrine of “shared responsibility” has manifested itself in different ways. One way has been through state-to-state judicial exchange efforts, aimed at increasing bi-national cooperation and at strengthening Mexican judicial institutions. Typically taking place in the form of trainings, dialogues, and meetings, exchanges bring together prosecutors, judges, and investigators from both countries. They help peers establish professional connections, build rapport and trust, and establish the foundations necessary for investigative and intelligence cooperation down the road.
One such exchange, “Judicial and Prosecutor Training in the Administration of Justice in the Adversarial System,” is being held here this week under the aegis of the Conference of Western Attorneys General (CWAG), a partner with the Mexico Institute in the USAID-funded U.S.-Mexico Alliance Partnership.
Over four days of trainings, approximately 75 Mexican legal practitioners will learn from U.S. law experts the details of the oral adversarial system, gain enhanced trial skills, and, for prosecutors, become better equipped to argue cases under the more rigorous standards set by recent judicial reforms.
Mexican operadores del sistema from Tabasco, Puebla, Baja California, and other states are participating in workshops on, among other topics, evidence-collection and chain of custody, cross-examination and courtroom litigation, alternative dispute resolution measures, and effective communication with crime victims. They are joined by experts from New York, Florida, California, New Mexico, Oregon, Texas, and other states, who will share what they know about the pros and cons of the adversarial system as practiced in the United States.
The demand for state-level exchanges and trainings is high. It’s at the state level where the lion’s share—perhaps 90 percent—of criminal cases in Mexico are prosecuted. At the same time, the states are in the midst of implementing—albeit unevenly—important criminal justice reforms that would enhance the presumption of innocence, set a higher evidentiary bar, and squarely place the burden of proof on the prosecution. The reforms also would force Mexico’s public defenders and prosecutors to become actual litigators, as evidence under the new system would have to be presented in open court and subject to cross-examination and challenge. Enshrined in a constitutional amendment ratified in 2008, the reforms are a response to the legacy of legal system incompetence, corruption, and abuse that afflicted Mexico for decades. Yet a fear is that, if the laws remain abstract concepts poorly translated at the street level, they could backfire, further eroding public confidence in judicial institutions. At the same time, the wave of drug trafficking violence facing Mexico today has led to worries of public backlash, should reforms be perceived as coddling violent criminals.
The reforms imply a large-scale skills upgrade for rank-and-file legal practitioners in Mexico, most of whom came up under the country’s maligned “inquisitorial” system. That system’s many critics say that it effectively placed an unfair burden of proof on the defense, led to routine injustices particularly against indigent defendants, and, notwithstanding this, failed to stem violent crime. A regression to the “inquisitorial” system would delay badly needed reforms to Mexico’s police and courts, which are considered essential to reduce the executive’s reliance on the military to fight organized crime and to better insulate the system against organized crime in the long run. At the same time, the threat of backsliding underscores the need for immediate investment in deep-rooted and sustained implementation efforts, especially given the generation-long commitment this demands.
This week’s workshops advance the bi-national goal to strengthen Mexican judicial institutions, one of the four pillars of the Merida Initiative security cooperation agreement. And gaining the perspective of U.S. law experts on adversarial system implementation is invaluable for Mexican practitioners setting upon a reform path in their individual states. Yet, the massive and shared challenge of cartel violence is great, and it invites a deeper investment in support of successful bi-national initiatives, whether federal-to-federal or state-to-state in scope.
To access the chapter, Justice Reform in Mexico: Change and Challenges in the Judicial Sector by David Shirk and part of the edited volume, Shared Responsibility: U.S.-Mexico Policy Options for Confronting Organized Crime, please click here. For the summary of the related conference held at the Woodrow Wilson Center on March 3, 2010, “State Perspectives on Combating Violence and Trafficking along the U.S.-Mexico Border,” please click here.
*AL DÍA: News and Analysis from the Mexico Institute is a periodic series of exclusive commentaries by respected U.S. and Mexican analysts and scholars on key issues in binational security cooperation. The opinions expressed here are those of the author. To contact the author, email email@example.com. Robert Donnelly is Program Associate at the Mexico Institute.