IS THE DEATH PENALTY CONSTITUTIONAL IN MEXICO?^*
Enrique DÍAZ-ARANDA^**

Original Text (Spanish) PDF

SUMMARY
I. Introduction. II. Historical arguments. III. Philosophical arguments. IV. Regulatory arguments. V. Criminological arguments.

I. INTRODUCTION

Over the last years the perpetration of crimes has increased in Mexico, generating insecurity, fear, indignation, anger, and a desire for revenge in Mexican society that calls for the authorities to effectively intervene in preventing crimes and punishing criminals. Particularly, serious crimes such as murder, kidnapping, and rape have given way to a growing school of thought in favor of the death penalty. This stance seems to have the required legal support in current Article 22(4) of the Constitution of the United Mexican States, which states:

Article 22

The death penalty remains prohibited for political crimes, and for other crimes, it may only be imposed for treason to the Nation in a foreign war, for parricide, for homicide with treachery, premeditation or unfair advantage; for arson, abduction, highway robbery, piracy, or serious criminal offences against military order.

In order to know the intention and pronouncements that led the Constitutional Convention of Queretaro to include the death penalty in the Constitution, it is essential to turn to the logs of the debates to have an authentic interpretation of the provision above-mentioned.

II. HISTORICAL ARGUMENTS

Debates of the 1917 Constitution

I will quote below one of the most relevant passages of the debates on the death penalty held at the Constitutional Convention of Queretaro, during its 39th ordinary session held at the Iturbide Theater on Friday, January 12, 1917, where it was said:

Deputy Gaspar Bolaños V. intends to abolish the death penalty, except in the case of treason against the nation, basing his bill, synthetically, on the same reasons upheld by the capital-punishment abolitionists. The death penalty constitutes a violation of natural law: its application goes against the theory that only authorizes punishment as a means to achieve the criminal's moral rectification. The death penalty is useless because the exemplary nature that was sought is not true. The person who suffers the least under this penalty is the criminal; those mainly affected are his relatives. And, therefore, the death penalty is unfair because it punishes a person who is not guilty with the full force of the law. The irrevocable nature of the death penalty does not allow for the rectification of legal errors. In the current circumstances of science it cannot be assured whether an offender is a criminal or a sick person. The death penalty blurs the two cases rashly and unjustly. Delinquency among us results from ignorance. As long as society does not comply with its duty to eradicate it, it does not have the right to impose the death penalty since the crimes for which it is imposed are the result of an omission of society. Lastly, the condition under which the framers of the 1857 Constitution abolished the death penalty is fulfilled; it has established a prison system; the fulfillment of that solemn commitment should not be delayed any longer.

This quotation taken from the debates highlights that many of the arguments for and against the death penalty have been around for a long time in Mexico, and also that the inclusion of the death penalty in the 1857 Constitution was due to the lack of prisons that could be used to incarcerate those convicted for committing crimes. It is true that nowadays prisons are overcrowded. However, this lack of facilities for inmates cannot justify the application of the death penalty, since, in Article 18(2), the Constitution itself establishes that "The federal and state governments shall organize the penal system within their respective jurisdictions on the basis of labor, training, and education as a means of social readjustment of the offender".^‡ In this regard, from a teleological interpretation of this provision, the penalty or punishment imposed for committing a crime should be aimed at the so-called special prevention. This implies the offender's rehabilitation to re-enter society, instilling in the offender the principles that were disregarded at the moment of committing the crime by means of education and work, and, once these principles are adopted, be given a new opportunity to rebuild his life in the community.

Also, during the debate of the 17th Constitutional Convention, Deputy Roman said:

In general, the Commission accepts the death penalty as a necessity, as a sad and painful necessity, especially for our homeland. In the case of a traitor in a foreign war, even Deputy Bolaños, who presented a bill asking for the abolition of the death penalty, agreed on the need of this means as a truly radical and efficient resource to prevent the use of truly unfavorable means to defend the nation. This could also be said about the offences committed with premeditation, malice aforethought and unfair advantage since offenders in such conditions are undoubtedly a real social danger. As regards the highwayman, it was essential to obtain peace in our nation. Many of us here today still remember how in some isolated regions of our country -in a nation as ours, with a truly large territory, extremely vast and rough- settling differences is a problem that the revolution must solve later and that appears, we could almost say, like a ghost. And in such cases, the death penalty is imposed in certain areas. The Commission is convinced that in many cases it has been the sole solution given to fight this evil in regions such as the State of Morelos. See History and History will speak about the means used in these rough regions, and it can be seen how in some small communities, the most precipitous ones in the mountains, after three or four figures among those offenders were eliminated, it was possible to provide more safety on the roads. Maybe many of the differences rely on our practices in the criminal system since many of those who were arrested on the road as alleged highwaymen, even when they were very likely guilty, were taken to jail and it was almost always observed that this system was not enough to end up with this social menace. The same can be said about arsonists, plagiarists, and pirates...

The result of the debates of the 1917 Constitutional Convention was the present Article 22(4) of the Constitution that we already know. Thus, we should ask ourselves about its possible application.

Despite the existence of the Constitutional basis, the legal provision that should set forth the punishment for committing each offence is the Penal Code and the criminal laws enacted by Congress, in acting upon the powers conferred to it under Article 73 Section XXI of the Constitution. In other words, the provisions under Article 22(4) of the Constitution only constitute a power granted to the Congress to determine the death penalty in criminal laws, but only under the premises established in Article 22. Consequently, as long as the Congress does not establish that punishment under the Federal Penal Code, the death penalty cannot be imposed in Mexico.

The above would open up to the possibility of amending criminal laws to establish the death penalty under Article 22 of the Constitution. Here we have to refer to other philosophical, regulatory and criminological arguments that lead us to hold that the death penalty goes against both humankind's ethical principles and the intent of this punishment in the Constitution. It is unconstitutional, because of the existing international treaties binding Mexico to eradicate the death penalty. Furthermore, it implies the perpetration of a murder and it could imply the worst judicial error with irreversible consequences. If that were not enough, the cost of the death penalty would be higher than a life sentence and would not serve as a measure to prevent crimes from being committed.

III. PHILOSOPHICAL ARGUMENTS

1. In Search of Justice! Is It Fair to Kill Offenders?

When Timothy McVeigh was executed, the President of the United States of America considered it "an act of justice". The question is whether justice consists of killing someone who has killed someone else.

The execution of an offender could only be considered as an expression of justice if it were based on the principle of revenge, the origins of which can be traced back to lex talionis or "an eye for an eye and a tooth for a tooth", but instead of being the victim or the victim's family who would take charge of satisfying the desire for revenge, it would be left in the hands of the State. That is, we would be facing an institutionalized act of just revenge.

Justice requires equality, which implies that causing an evil could only be repaid with an equal evil. In other words, the death penalty would only be admissible against someone who has killed another person. The victim can be a third party (provided that it corresponds to having been perpetrated with premeditation, malice aforethought, unfair advantage or treason) or an ancestor or descendant (parricide in the strictest sense). Therefore, if we imposed the death penalty on those who have committed serious crimes such as kidnapping (defined in the Constitution as an abductor) or criminal assault (defined in the Constitution as a highwayman), this would mean that freedom in general and patrimony are worth as much as a human life. Then, we would have to ask ourselves: can we repay a victim whose freedom was taken away by taking the life of the offender? Is by any chance life worth the same as freedom or patrimony? It is evident that life is the legal interest par excellence, and the rest of the legal interests have a lower value. This leads us to the conclusion that it would not be fair to take the life of a person who affected goods of a lower value.

2. A contradiction of principles

In the 18th century, Beccaria said: "I believe it is ridiculous that laws, which are the expression of public will, detesting and punishing murder, commit it themselves and, to prevent people from committing murder, order a public one".¹ Later, during the discussion on the death penalty at the 1917 Constitutional Convention, Deputy Rios said, "if you do not want others to kill, you should begin with yourselves, you murderers". He also questioned the State: "Is it not absurd to think you can order a public death to prohibit citizens from committing murders?".² Recently, the former President of Chile, Eduardo Frei, stated: "I cannot believe that in order to defend life and punish a murderer, the State must also become a murderer. The death penalty is as inhuman as the offence that motivates it".³ Likewise, Justice Sachs of the South African Constitutional Court stated in 1995 "Every person shall have the right to life. If not, the killer unwittingly achieves a final and perverse moral victory by making the state a killer too, thus reducing social abhorrence at the conscious extinction of human beings".⁴

The question then arises: can the State become a turn into a murderer? To answer the question we need to recall that in the Penal Code, the Legislature states that whoever takes the life of another person commits the crime of homicide and shall be imposed a punishment of between 12 and 60 years in prison, depending on the seriousness of the event (Articles 307 and 320 of the Federal Penal Code). This implies that the State orders its citizens not to kill another one, and so, why can the State take the life of its citizens when they commit a crime? Does the criminal stop being a citizen? Does a non-delinquent citizen's life deserve a protection different to that of a delinquent citizen? It is clear that any citizens' life must be protected and the State would fall into a contradiction of principles if, on one hand, it states that taking the life of another person is a crime and on the other hand, it takes the life of the citizen who committed a crime, even though it was one of the most serious ones.

However, the above approach not only leads us to describe the State that imposes the death penalty as a murderer, but even worst, it would be a Murdering State!

3. Why commit aggravated homicide (murder)?

When the Judge sentences the defendant to death, he necessarily determines the day, time, and form of execution: execution by firing squad, lethal injection or the electric chair. This means that from the beginning of his sentence, the convicted person shall live with the knowledge of the day of his death and will consequently suffer psychological torture, knowing that he cannot do anything to save his life.

Even when the time of execution arrives, the act can be extended. Thus, for instance, in Guatemala, in 1998, Manuel Martínez Coronado's execution by lethal injection lasted eighteen minutes due to electricity failures.

If we analyze this from the regulatory point of view of the Federal Penal Code, we would be facing the assumption of a person who, after having thought about it, kills another person that has no chance to engage in self-defense, using for that end, harmful substances or torture. This would be created as murder, characterized by premeditation, and unfair advantage (Articles 315 and 316 of the Federal Penal Code). Therefore, the use of the death penalty is precisely created as aggravated homicide as set forth in the Federal Penal Code, which would be called murder in other countries.

IV. REGULATORY ARGUMENTS

1. Comparative Law

When we talk about the death penalty, the United States of America -where, by the way, the electric chair was invented and used for the fist time on August 6, 1890, at Sing-Sing Prison of New York-⁵ is normally taken as point of reference.

However, the imposition of the death penalty in the United States has given rise to opposing opinions between people and even between judges. Let us recall that in the Furman Case, on June 29, 1972, the Supreme Court of the United States declared the death penalty unconstitutional, with five votes in favor and four against. In this ruling, the Court considered that the death penalty constitutes a "cruel and unusual punishment". Despite this, in June 1976, the Supreme Court changed this ruling and considered it constitutional.⁶ According to Amnesty International reports, from 1976 to 2000, 683 convicts have been killed, 85 of which were killed in the year 2000.⁷ It must be said that in the United States of America not all the states are in favor of this punishment, despite the fact that there have been bills to reinstate the death penalty, as recently occurred in Massachusetts, where this bill was rejected.⁸

Worldwide in 1998, the death penalty was imposed on 1,625 offenders in 37 countries, 80% of which were performed in China, the United States, Iran, and the Democratic Republic of the Congo.

2. Constitution vs. international treaties

The death penalty cannot be included in Mexican penal laws, because Article 4(3) of the American Convention on Human Rights provides that, "The death penalty shall not be reestablished in states that have abolished it".⁹ This international code is supported by the Optional Protocol to the Inter-American Covenant on Civil and Political Rights (ICCPR), and the Second Optional Protocol to the ICCPR on the abolition of the death penalty, as well as the Protocol to the American Convention on Human Rights related to the abolition of the death penalty.¹⁰

In this regard, the Constitution is not the piece of legislation attributed with the responsibility of establishing the penalties to be imposed for committing crimes. That corresponds to the Penal Code, and since that Code does not provide for the death penalty and given the existence of International Treaties signed and ratified by Mexico, in which the death penalty is considered unlawful, thus, pursuant to the provisions of Article 133 of the Mexican Constitution, which provides that international treaties are a supreme law for the Nation and are consequently above the Penal Code, it must be said that the death penalty cannot be included into Mexican laws as a punishment for committing an offence in local statutes.

V. CRIMINOLOGICAL ARGUMENTS

1. Discrimination

According to statistics, in the United States of America, the highest number of those sentenced to the death penalty is made up of blacks and Latinos. This does not mean these ethnic groups are the only ones to commit the most serious crimes because in similar cases, the probability of being sentenced to death is lower if the offender is white and higher if the offender is black, and between these two, we can place people of Hispanic origin. Thus, we should not be surprised that in June 1999 "Brian Baldwin was executed by the electric chair in Alabama, despite appeals from 26 members of the Congressional Black Caucus in Washington, D.C., calling for a stay of execution in view of `the clear pattern of racial discrimination in his case´.¹¹

Blacks and whites in the USA are the victims of murder in almost equal numbers, yet 83 percent of prisoners executed since 1977 were convicted of the murder of a white person... Blacks made up just 12 per cent of the country's population, but 42 per cent of the nation's condemned prisoners.¹²

There are cases in which race is not crucial, but the economic factor is. Such is the case of the American football player O. J. Simpson, who despite his race not only avoided the death penalty, but also avoided a prison sentence prison. The key to Simpson's defense lay on the group of lawyers that are considered the best in the place and, consequently, their fees are very high.

If we applied the above in Mexico, the questions posed would be: who would be sentenced to death? Who commits serious crimes regardless of his socioeconomic level or would it be restricted to people who commit serious crimes and are poor? Let us once again recall that during the debate held at the 1917 Constitutional Convention, Deputy Del Castillo referred to how the death penalty is imposed on the weak and never on the magnate.¹³

Based on the above it should not surprise us what the UN Special Rapporteur concluded during his visit to the United States of America in 1997 that "Race, ethnic origin and economic status appear to be key determinants of who will, and who will not, receive a sentence of death".¹⁴

2. Judicial fallibility

In the United States of America, there are several documented cases of people who were sentenced to death and after their execution, evidence proving their innocence came to light. From 1973 to 1999, 84 people sentenced to death have had a better luck and their lives have been saved thanks to new evidence that proved their innocence.¹⁵

Given the irreparable consequences of the damage, the execution of innocent people who are allegedly guilty constitutes the worst of the judicial errors. It would not be odd for said mistakes to be committed in Mexico and the phrase "We're sorry" would be worthless before the dead body of a person who was unfairly sentenced to death.

3. Cost

It is generally thought that the death penalty only costs the price of the bullets fired by the firing squad, the cost of the lethal substance injected or the electricity used to operate the electric chair. However, the execution is only the last step of a long and expensive judicial proceeding, the purpose of which is to prevent innocent people from being sentenced to death.

In the United States of America, a special legal agency had to be created to exclusively deal with death penalty cases. Hence, there are three state and three federal agencies besides a fourth agency made up of highly specialized legal officers with very high salaries.

It is estimated that in the State of Texas the execution of each person sentenced to death costs 2.3 million dollars. On the other hand, a person sentenced to life imprisonment only represents an expenditure of between 500,000 and 750,000 dollars for the State.

4. Effectiveness

The statistics of some countries that have adopted the death penalty show that the crimes for which said punishment is imposed have increased. This means that including the death penalty in their criminal statutes has not succeeded in deterring the offender or decreasing the perpetration of such offences. On the contrary, the effect has been an increase of these crimes. It is as though the death penalty were an incentive for offenders.

On the other hand, in 1962, the Netherlands stated that, "the death penalty was abolished in 1879, and statistics after that year show that the crimes for which that penalty was imposed before that date have not increased".¹⁶

In Mexico, the rise in prison terms has not succeeded in diminishing the number of crimes committed. Although the Penal Code has been continuously amended to increase the punishment imposed on whoever commits kidnapping, a sentence that can last up to 40 years, statistics show that the number of kidnappings has increased.

The reason behind the fact that increasing the punishment does not result in the decrease of the crimes committed is found in the offender's expectations, since the offender thinks he will not be arrested or punished. In other words, the great impunity that exists in Mexico puts an end to the dissuasive effect of the punishment. Thus, what encourages the offender to carry on with his activity lies not in the prison term to be imposed on him according to the law, but in its lack of application. Why, then, do people think that by exacerbating the punishment from prison to the death penalty the number of crimes committed will lessen?

The way to resolve the problem of crime lies in the eradication of impunity, and not in establishing more severe punishments in the laws. In this sense, in 1993 the head of the National Commission of Human Rights, Jorge Madrazo Cuellar, rejected the death penalty as a means to fight crime and considered more proper means to stamp out impunity, strengthen public security and appropriate mechanisms to attain the rehabilitation of criminals.¹⁷

All of the above shows the great deal of problems the death penalty poses and why it does not present a solution to the increase of crime in Mexico. Adopting better criminal policy measures would be the solution, such as: a) economic measures aiming to create more jobs and to improve the economic level of the population in general; b) an adequate policy of mass means of communication, based on personal growth and the rejection to violence; c) a complete educational program that promotes a culture of a peaceful coexistence and harmony guided by respect; d) a better trained police force that has the necessary equipment to confront offenders efficiently and that receive a decent salary, etc.

In Mexico, we are tired of living in fear. The impunity with which crimes are committed outrages us. It hurts us to be defenseless victims in the face of offenders. However, we should not let our desire for revenge turns us into death-penalty defenders. We would then become accomplices of institutionalized murders.

Notes
* Translated by Carmen Valderrama Ramos.
** Researcher at the Legal Research Institute.
‡ Translator's note: quotation taken from http://www.ilstu.edu/class/hist263/docs/1917const.html#TitleIChapterI.
1 Beccaria, Césare, " De la pena de muerte", Revista Mexicana de Justicia, Mexico, new epoch, No. 1, January-March 1993, p. 13.
2 Diario de los debates, p. 335.
3 Amnesty International, 2001 Annual Report.
4 Idem (Translator's note: This quote was taken from http://www.thirdworldtraveler.com/Human_Rights/Death_Penalty_USA_RFA.html).
5 Reynoso Dávila, Roberto, "La pena de muerte", Revista de Derechos Humanos, Sonora, Mexico, No. 13, Summer 1996, p. 163.
6 Ibidem, p. 170.
7 Amnesty International, 2001 Report, p. 189.
8 Idem.
9 Compare, Ovalle Favela, José, "La pena de muerte", Revista de Derechos Humanos, Sonora, Mexico, No. 13, Summer 1996, p. 180 (Translator's note: quote taken from http://www.oas.org/juridico/english/Treaties/b-32.htm).
10 Quote taken from the appendix of the 2001 Report of Amnesty International, p. 500.
11 Amnesty International, Report 2001 (Translator's note: this quote was taken from http://web.amnesty.org/library/index/engamr510462003).
12 Idem (Translator's note: this quote was taken from http://web.amnesty.org/library/index/engamr510462003).
13 Compare Diario de los Debates…, esp. p. 343.
14 Amnesty International, Report 2001 (Translator's note: this quotation was taken from http://www.unhchr.ch/Huridocda/Huridoca.nsf/
TestFrame/ce9d6cdd9353d632c125661300459b39?Opendocument).
15 Idem.
16 Quoted in Barreda Solórzano, Luis de la, "Sinrazón de la pena de muerte", Revista de Derechos Humanos, Sonora, Mexico, No. 13, Summer 1996, p. 182.
17 Compare, Madrazo Cuellar, Jorge, "Historia de la pena de muerte, otro capítulo más", Revista de Derechos Humanos, Sonora, Mexico, No. 13, Summer 1996, p. 176.