CRIMINALITY AND CRIMINAL LAW IN MEXICO. WHERE ARE WE GOING?*
Original Text (Spanish) PDF
I. The criminality increase. II. Measures of criminal policy to fight criminality. III. The social perception. IV. Proposal.
I. THE CRIMINALITY INCREASE
Criminality has always existed in Mexico, but its indexes have reached alarming levels in the last 20 years. This has occurred precisely when the first economic crises emerged, which had not only macroeconomic effects, but mainly affected microeconomics, which created a sensible reduction of the purchase power of the population with less resources as well as the reduction of the middle class.
1. Factors previous to the criminality increase
The economic factor plays a crucial role in the criminality increase, as different statistical and econometric analyses show, such as those developed by Field, who states that a "null or negative growth of the consumption per capita leads to the increase of the rates of hereditary crimes in several European countries and the United States".1 In the same sense, the study carried by Fajnzylber showed that economic and social inequality has a direct relationship with the intentional homicide and robbery rates.2 In 1998 in Mexico, Rafael Ruiz Harrel integrated a database on criminal indicators in Mexico City and he demonstrated the close relationship between the behavior of variants such as the GDP growth, employment, population density in habitation centers and criminal incidence.3
The economic crises are decisive in the increase of commission of crimes; unfortunately, once the number of crimes increases, their commission does not decrease even when the economic situation improves and only after a long period of economic welfare the criminal rates lessen until they reach the levels they had before the economic crisis.4
This way, in order to measure the increase of criminality I turn to a first data which is the number of denounces presented in Mexico, since in 1991, 809 denounces were presented for each 100 thousand inhabitants, while in 1994, there were 1,111; in 1997 it increased to 1,490 and in 2000 there were 1,398 for each 100 thousand inhabitants.5
Internationally, these data counteract considerably with what occurred in other countries such as Sweden, where 12,671 denounces were registered for every 100 thousand inhabitants, while in Austria 6,283 were presented, in Argentina 3,197, in Spain 1,770 and in Peru 766, in all of them the amount is calculated for every 100 thousand inhabitants. Evidently, the information given here shall be carefully analyzed because the amount of denounces cannot be directly associated with the commission of crimes, because the citizens can denounce the majority of facts they consider as criminal, because they rely on the system of justice. For these reasons, the Swedish have a high level of reliability in the police force and in the judicial system, therefore it is esteemed that the 60% of the crimes are denounced; while in Austria 52% of the crimes are denounced.6 On the other hand, in Mexico the social perception is of lack of reliance in the system and it is esteemed that 75% of the crimes are not denounced to the Minister Public.7
Thus, the increase in the amount of denounces only indicates that the criminal phenomenon has increased in Mexico in the recent decades. In order to prove this hypothesis I analyze the crimes that are more related to criminal crises.
2. Crimes of highest incidence
Theft is the most commonly crime committed. In year 2000, 520,119 crimes were denounced representing 37.2% of the total crimes committed in Mexico.8 Vehicle theft is particularly interesting, since the probability of denouncing such illicit action is quite high, because it is necessary to charge the insurance. In Mexico City in 1993, 53 vehicles were stolen everyday, while in 1994, 80 were stolen, in 1995, 154; in 1996 156, in 1997 160, in 1998 129, in 1999 122 and then a small decrease in the index is observed, because in 1998 129 cars were stolen everyday, in 2000 119 and in 2001 105.9 However, the number of vehicles stolen in Mexico City is still very high, and the reason why the commission of this crime has diminished is because of the improvement of the way the police force works and of the measures adopted by the citizens to avoid them.
The commission of intentional homicides has been increasing. While during the 1970’s between 10 and 12 homicides were committed for every 100 thousand inhabitants, between 1984 and 1986 it increased to 22 homicides, while in 1996 the number decreased to 18, and between 1999 and 2000, to 14.10 We shall point out that in certain geographical areas the commission of homicides is more frequent than in others, for example, in 2000 in Oaxaca, 54 homicides were committed for every 100 thousand inhabitants, in Baja California 18 were reported, in Mexico City 8 and in Aguascalientes 1 for every 100 thousand inhabitants.11
In Ciudad Juarez, Chihuahua something without precedents took place, where approximately 500 women have disappeared since 1993 and 296 corpses have been found. Only 10% of these homicides have been solved.12
One of the crimes that worry most the Mexican society is kidnapping, which has been tried to be fought through reforms to the criminal codes of each state of the country in order to increase the punishment. At a federal level, while kidnapping was punished in 1931 with a punishment of 5 to 20 years of prison, in 1951 the penalty increased to 5 to 30 years, in 1996 from 10 to 40 years of prison, and since the reform of May 17, 1999, the penalty is from 15 to 40 years of prison. On the other hand, in Mexico City kidnapping is punished with a penalty of 30 to 50 years of prison.
The increase of sanctions for kidnapping included in the national criminal codes, has not had the deterrent effect that was expected, and according to the Mexican Employers’ Confederation, in the year 2001 at least 230 kidnappings were committed, and 35 victims were murdered.
In Mexico City the 53% of the kidnappings in the whole country take place, and the 17% in the state of Mexico. What calls most the attention about these ciphers is that the penalties have been hardened most precisely in these federal states. On the contrary, in Sinaloa the problem was practically eradicated because of the creation of an elite police force dedicated to investigation and detention of the kidnappers of that area.
At an international level drug trafficking is alarming, being the issue that worries the United States most. It is hard to calculate the amount of crimes committed, but the role of the State General Attorney is quite outstanding, which, for example, has progressively increased the insurance of the cocaine that was trafficked along the country. This way, in 1983 it insured 648 kg, in 1989 39.523 kg, in 1994 it raised to 22.155 kg, and in 1997 34.523 kg. in the same sense, the detentions carried in 1983 were 3,149 presumed responsible, in 1989 20,204 were detained, in 1994 6,860 and in 1997 10,402 presumed dealers of such drug.13
II. MEASURES OF CRIMINAL POLICY TO FIGHT CRIMINALITY
The solution to the criminality increase has tried to be found in the continuous reform to criminal laws, through the casuistry descriptions of the unfair action with the excuse of the existence of criminal vacuums, and especially, with the increasing of sanctions that deprive from liberty. To give us a better idea of the latter, we shall remind that during the six years of the Presidential period of Miguel de la Madrid (1982), there were 163 reforms to the criminal laws, with an annual average of 27.2. During the period of Carlos Salinas de Gortari (1988) 188 were made, with an annual period of 31.3, and with Ernesto Zedillo (1994) there were 115 reforms with an average of 19.2 per year.
2. The deficient system of implementation of justice
One of the causes of the deficiency in implementing justice in Mexico lies in the lack of agreements and of coordination between the Minister Public and the judge. The Mexican criminal procedure begins with a stage of preliminary investigation during which the Minister Public is the highest authority, and only when it compiles all the necessary evidence to define the corpus delicti and the probable responsibility of the accused, then it persecutes the criminal action and consigns him before the judge in order to formally begin the criminal procedure. Once the judge finds the cause, the procedure begins and the Minister Public stops being the maximum authority now being the accusing party. As a consequence, if the Minister Public does not compile enough proofs to impute the crime to the author, it cannot persecute a criminal action and the procedure is filed. On the other hand, if the Minister Public consign the accused, but the judge considers there are no necessary proofs to process it, he may issue a decision of freedom, or deny the order of apprehension in those cases where the accused has freedom.
We shall take into account that the reliable proofs about the commission of a crime are necessary in a State of Law in order to proceed to the detention of a citizen and submit him to the criminal process. Therefore, in 1994 the Constitution and the Criminal Procedures Federal Code were reformed in order to demand the Minister Public the absolute proving of the criminal type and the probable responsibility to persecute criminal action against the citizen or to be able to request the judge the order of apprehension. However, this meant that many of the preliminary investigations started by the Minister Public did not reach the processing of the accused because of the deficiency of the proofs given. This led the Mexican legislator to make the following considerations:
The statistical analysis of our criminal system shows an alarming reality. According to a study, of the 232,821 preliminary investigations carried by the General Attorney of Justice of the Federal District in 1996, only the 10% was consigned to the judge and exclusively a 3.8% of the cases received a guilty verdict.
In the federal ambit, in 1996 the State General Attorney started 74,030 inquiries, of which only 8,940 of the possible responsible of crime were put at the disposition of the judges, that is, only 12% of the cases.
In the rest of the country, the statistics of denounced persecuted and investigated crimes follow the same parameters, because of the 1,491,860 investigations opened in 1996 by the Minister Public’s agents regarding consignments with accused, as an average per state, only the 10% of the total reached the tribunals, in accordance with the information given by the states’ general attorneys.14
With this information, the Mexican legislator reached the following conclusion: "The amount of detained criminals is a very low proportion; as a consequence, the amount of criminals that are free is very high".
Following the finalist doctrine, the 1993 reform modified the contents of articles 16 and 19 of the Constitution, and it imposed the Minister Public new requirements in order to obtain from the judicial authority the issuing of apprehension orders and the issuing of orders to imprison against the possible responsible of crimes.
This way, since the 1993 reforms, it was necessary to show all the elements of criminal type, that is, the objective elements, as well as subjective ones, the normative ones in order to obtain an order of apprehension or an order to imprison.
Proving the subjective elements —such as knowing about certain circumstance, the purpose of committing a crime, or other subjective aspects, depending on the type of crime— as well s the normative elements —such as proving it is another’s thing, the legitimate mandate of the authority, or other normative aspects, depending on the type of crime— is correct for a guilty verdict, but it is excessive for a warrant for arrest and an order of imprison.
This way, the 1993 reform propitiated that the secondary legislation could develop the requirements the Minister Public shall demonstrate so that the judicial authority could consider as integrated the elements of the elements of the criminal type. It established excessive formalities and technicalities that lead the Minister Public to integrate an expedient similar to the one required in order to issue a verdict, with which the preliminary investigation turned into a deficient preliminary judgment carried by the Minister Public.
The constitutional text shall not follow any doctrinal tendency. In 1993 was adopted a criminal doctrine that has been successful in other countries, but has not contributed to improve the implementation of justice in our country.15
Unfortunately, the solution to fight criminality was not found in improving the Minister Public’s performance but in overlapping its incapacity to integrate the preliminary investigation reducing the probative burden for the detention and processing of the citizens. However, the citizen’s guarantees contained in the Constitution constituted a great obstacle to adapt such political-criminal measure, for which the legislator was in charge of clarifying which is the scope of such guarantees and their distinction with respect to human rights:
There is a relationship between them, the guaranteed and the guarantee. The human rights, as general and abstract concepts, are the guaranteed. The individual guarantees are the safeguard, not abstract but concrete and individualized, of such rights every man has, regardless the State acknowledges them or not. The individual guarantees are relative; and their relativity depends on the circumstances of place and time, and of the historical situation of a nation and the problem it has to face as a political community.16
In other words, the thesis of the Mexican Congress of 1999is that the State can recognize the human rights and guarantee them, or simply not recognize them and granting itself faculties to breach them under the scope of the law.
In spite of the minor probative burden of the Minister Public to consign and process the assumed responsible of the commission of crimes, the result is still grievous because at the end of the process the judge does not have enough elements to sustain the guilty verdict and shall absolve. This way, it is useless to continue consigning presumed responsible people if at the end of the process they shall be set free and, according to the parameters of a social and democratic State of Law, this detention and processing shall be interpreted as unjustified deprivation of the liberty of an innocent citizen!
On the other hand, the lack of efficiency in the Minister Public’s performance represents a discouragement in the population. The "45% of the victims that denounced, reported nothing had been made, and the 28% appointed that the authorities continued investigating, in the 95%, the cases had not been given a follow-up and only the 10% of the cases had a resolution in favor of the victim".17
According to paragraph 2 of article 18 of the Political Constitution of Mexico, the prison punishment has the purpose of the criminal’s social re-adaptation through education, work and training.
However, the increase of the penalties contained in the punitive regulations we already mentioned, offer a tendency that is contrary to the dispositions of the Constitution, because the average of the prison punishment imposed in 1931 was approximately of 3 years 2 months, in 1982 of 4 years 6 months, in 1988 5 years 2 months, in 1994 6 years 11 months and in 1999 it reached 9 years.
The overcrowding in the prisons is not helpful either for the purposes of the penalty contained in the Constitution, because according to information of the Office of Governor, in the last 25 years there has been a considerable increase in the penitentiary population that overflows the capacity of the prisons. In fact, in 1976 the penitentiary population in the country was 36,701 prisoners; in 1982 it increased to 40,687; at the beginning of 1986 the population increased abruptly to 58,804 and in September of that same year it reached 61,107, despite there were only 48,703 places. In February 1987 the amount of prisoners increased to 70,070; in 1988 the population of the prisons in the country was of 73,089 prisoners and the capacity was for only 54,471 people. In 1989 the number of prisoners became 78,147, with a capacity for 55,781; in 1990 the number increased to 93,649. However, in those two years the capacity did not increase, thus creating more overcrowding. In October 1991 the Mexican penitentiary system had a capacity for 70,435 prisoners whilst there were more than 91,000, which represented an overage of approximately 30%; in 1995 the penitentiary population reached 95,521 prisoners and the amount of spaces was 91,422; in 1997 the population in prisons raised to 109,956; on May 30, 1998, the penitentiary population in the country was 120,000 prisoners (115,500 men and 4,500 women) and the capacity was for only 100,000 spaces, that is, there was an overpopulation of 20,000 prisoners. Those 100,000 spaces are distributed in 441 penitentiary centers, 278 of which the states’ governments are in charge, 151 the municipal authorities, 8 the Federal District’s government, and 4 the Federal Government.
III. THE SOCIAL PERCEPTION
The society identifies impunity as one of the main causes of the criminality increase. It is not a new phenomenon, since in 1961 Quiroz Cuarón pointed out that "we have become used to impunity… in our country the rule is the crime without punishment".18 Ruiz Harrel says that impunity is of 96.25%19 and the Citizen Institute of Studies on Insecurity directed by Luis de la Barreda, in 2000 revealed that only 3 of every 100 crimes committed had been solved and culminated in the criminal’s punishment.20
The citizens’ perception of criminality has not improved and according to the Studies of victimization and perception of the public security presented in November 2000 by A. C. Nilsen, of the interviewed inhabitants of the Federal District, the 38% expressed it is not very safe to live in this city; the main problem of security that was expressed was theft and assault; the place where the people are more insecure is in the public transportation (60.4%) and in the streets (52.2%); selling drugs is the crime that, according to the people surveyed, increased compared to 1999 (41.6%); the most important problem of insecurity in their neighborhood is the absence of police vigilance (65.2%); the cause/effect considered to produce more delinquency is the family disintegration (52%); the most important measure to reduce delinquency is to create employment (48.2%) and eradicating corruption (47.6%); 89% would be willing to participate in programs of crime prevention together with their neighbors; the program against delinquency they know more is the combat against drug trafficking (69%); the behaviors they try to avoid are carrying cash (72.9%) and going out at night (34.7%); 75% has few/no confidence in the present government of their city; 74% mentioned that prisons do not contribute to make better citizens of the prisoners; 60% said that had they brought with them a weapon they would have used it to frighten (59%), harm (18.6%), or kill (18.2%) the criminal.
Death penalty as an alternative
The alarming increase of criminality in Mexico, the existence of a constitutional precept (article 22.4) that grants the criminal legislator the faculty to establish death penalty in the criminal codes, and the application of death penalty in Mexico during the first half of the 20th century, has caused that the population, tired of the commission of serious crimes, reconsiders the death penalty as a solution to the problem of criminality. This tendency of opinion has been employed by some candidates to legislators in the State of Mexico, that is, the Alliance for Everyone, where the Institutional Revolutionary Party (PRI) and the Green Ecologist Party of Mexico (PVEM) allied. Such parties called a balloting to decide whether to apply death penalty to kidnappers. On February 16, 2003 there was a balloting by phone, internet and the ballot boxes, and the outcome was in favor of death penalty, with an 85.4% of the issued votes.21
As it can be seen, the Mexican criminal policy has focused mainly in the reforms to the criminal legislation, and less in the implementation of measures of criminal policy, which does not contribute to the citizens’ security in any way. Therefore, it is urgent to change the route of the reform to the law, in that we do not need more legal reforms that do not cope to improve the citizens’ security and only follow political-demagogical purposes. We shall focus our attention in the adoption of criminal policy measures such as:
— The adoption of economic measures in order to create more employment and improve the economic level of the population as a whole.
— An adequate policy of the mass media that encourages respect towards civic values, personal development and rejection towards violence.
— An integral education program for the family and the society in which the culture of peaceful and harmonic cohabitation is encouraged, guided by respect.
— Police measures towards a better training of the police bodies, their better equipment and a fair remuneration.
The Mexican criminal policy in general, is not fulfilling the expectations of the citizens in order to be able to live in peace and harmony, completely secure about the protection of their fundamental goods (life, physical integrity, freedom, heritage, etcetera). Therefore, it is urgent to change the way of the legal reforms with that of the political-criminal decision-making which leads us towards better solutions regardless the time they last and the resources that shall be put to fulfill it.
* Translated by Ingrid Berlanga Vasile.
** Researcher at the Legal Research Institute and of the National System of Researchers of CONACyT.
1 Field, S., Trends in Crime and their Interpretation: a Study of Recorded Crime in Post War England and Wales, HMSO, London, 1990. Cited in Dijk, Jan J. M. van, "Cómo interpretar las estadísticas delictivas", translated by Alberto Aragón, Revista Mexicana de Procuración de Justicia, México, vol. 1, no. 1, February 1996, p. 77.
2 Cfr. Fajnzylver, Pablo et al., What Causes Violent Crime?, Office of Chief Economist Latin America and the Caribbean Region, The World Bank, March 1998, pp. 1, 2, 26 ff.
3 Cfr. Criminalidad y mal gobierno, México, Sansores y Aljure editors, 1998, pp. 12-69.
4 Cfr. Fajnzylber, Pablo, op. cit., note 2.
5 Cfr. http:// www.inegi.gob.mx/, reports of 1991 to 2001.
8 Cfr. http://www.inegi.gob.mx.
10 Cfr. http://www.inegi.gob.mx (1997-2000).
11 Data taken from INEGI’s statistical state yearbooks.
12 Information about this issue cfr. Díaz-Aranda, Enrique, "Los asesinatos de mujeres jóvenes en Ciudad Juárez y el derecho penal" which will son appear in Argentina. Also, http://www.laneta.org/foropob/Actividades.htm and http://www.geocites.com/pornuestrashijas.
13 "Sistema Estadístico Uniforme para el Control de Drogas", Anuario Estadístico de los Estados Unidos Mexicanos, INEGI, 1999, pp. 87-95.
14 Initiative of decree which reforms articles 16, 19, 20, 22 and 123 of the Political Constitution of Mexico.
17 Ramírez, Teresita et al., "Tendencias y causas del delito violento en el Distrito Federal de México", en Fajnzylber, Pablo et al. (eds.), Crimen y violencia en América Latina, Bogota, World Bank-Alfaomega, 2001, pp. 167-169.
18 "Crisis de la administración de justicia penal", Temas y problemas de la administración de justicia en México, Mexico, UNAM, 1982, pp. 269 and 270.
19 Ruiz Harrel, Rafael, "El saldo de la impunidad", Revista Mexicana de Procuración de Justicia, Mexico, vol. I, no. 2, February 1996, pp. 77-98.
20 Cfr. http://www.icesi.org.mx/icesi-org-mx/images/pdf/Inseguridad_01.pdf.
21 Around 800,000 votes were registered, which represent almost 10% of the total of the electoral register of the State of Mexico composed by 8,331,394 inhabitants. Cite: http://www.reforma.com/edomex/articulo/270071/ and http://www.el-universal.com.mx/pls/impreso/noticia.html?id_nota=121470&tabla=notas.