Imprisoned without trial; guilty until you can prove your innocence

Rio Doce

Judith Ortiz

Translated by un vato for Borderland Beat

Sunday, September 30, 2012

They accuse them without proof, try them without a judge and convict almost all of them. 

After court proceedings that lasted two years, Julio Vasquez Leon obtained a verdict of "not guilty." The 4th Unitary Tribunal of the 2nd Circuit in the State of Mexico, through Ruling 297-07, gave him absolute freedom because it did not find evidence of guilt for organized crime and drug possession with intent to sell, the offenses he was accused of. The sentence came too late, since he had already endured two years of incarceration, although he was innocent.

Contrary to the principle that "a person is innocent until there is proof to the contrary," Julio entered the Altiplano maximum security prison on October 5, 2007. From that date, he had lived in a bureaucratic tangle, with amplified statements from police agents and factual witnesses, the testimonies of relatives and friends, physical and psychological examinations, ballistics and laboratory tests, and hundreds of court documents that swelled his court files.

Julio was arrested and accused by four Federal Preventive Police (PFP; Policia Federal Preventiva) agents, who, in their expanded statements, contradicted themselves in their narratives about securing the drugs, and who also manipulated the original arrest report, according to File No. 57/2007, filed in the Third District Court on matters involving federal criminal proceedings in the State of Mexico, of which Rio Doce has a copy.

Numerous incarcerations and sentencing of innocents that have taken place in recent years have an element in common: the only proof of the charges is the accusation made by the arresting officers themselves, which may be enough to find the defendant guilty if he lacks a good defense to prove his innocence.

President Felipe Calderon's war on drug trafficking has paraded before news media and  incarcerated thousands of illegally detained men and women. Many of them are innocent individuals who are being processed in different prisons around the country.

"This is the problem with the administration of justice in Mexico, where 70% of the persons deprived of their freedom are innocent," points out a study by the Open Society Institute and the Research Center for Development (CIDAC; Centro de Investigacion para el Desarrollo), which states that, "since the start of the war against the narco, the prison population of persons who have not been convicted grew almost 50% (fifty per cent) when it went from 63,724 inmates in 2000 to 94,746  in February of 2011."

Tried without a judge

Guillermo Zepeda Lecuona, a research professor with the Technological and Superior Studies Institute of the West (ITESO; Instituto Tecnologico y de Estudios Superiores de Occidente), who participated in this study, maintains that abuse of preventive incarceration is evidence of the inefficiency of the justice system and the inability of police agencies to present evidence in their investigations: "They accuse people without proof, try them without a judge, and convict almost all of them. This suggests that there is very little investigation, and of very poor quality. Therefore, with a deficient investigation, you can't catch the guilty parties and innocent persons my be convicted."

The report charges that 42% (forty-two per cent) of inmates in Mexico are "legally innocent." A total of 90,000 of the 210,000 persons in prison have not been convicted, but find themselves in preventive incarceration, used "irrationally and indiscriminately" as "one of the pillars of a criminal (justice) policy desperate in the face of authorities overwhelmed by criminal phenomena and by citizen demands for security."   

The analysis considers preventive prisons in the Security and Criminal Justice System "improper, unjust and costly," in addition to being "warehouses for human beings where rehabilitation is unthinkable" and where the right to conditional release with bail for thousands of people is restricted, violating the defendants' fundamental rights."

The professor, an analyst on matters of national security, argues that "prosecuting entities use the fact that agents of the Public Ministry (MP; Ministerio Publico) make a great number of arrests as criteria of efficiency, and they impose arrest quotas on officials; they choose to go forward with cases even if there are insufficient elements to do so, although every year 40,000 (forty thousand) persons are released for lack of evidence."  

How does the Mexican government make reparation to Julio for two years of unjust incarceration? In the document The Myths of Preventive Prison in Mexico (2009), Guillermo Zepeda concludes that "preventive prison does not reduce the number of crimes that are committed, does not make citizens feel safer, does not incarcerate the most violent prisoners and does not allow adequate reparation for harm to the victim."

Guilt factory

According to the results of the study, Security and Criminal Justice in the States: 25 Indicators of our Institutional Weakness, performed by the organization Mexico Evalua, there exists the possibility that none of the stages in the procurement and imposition of justice are functioning adequately, and that there may be many innocent persons being sanctioned improperly. This is a very serious situation, it warns, due to the fact that in 78% (seventy-eight per cent) of the cases processed by state criminal prosecutors, the defendants end up in jail.

The report shows that the population in all of Mexico's prisons is approximately 227,000 inmates, mostly poor young men and women, of whom 37% (thirty-seven per cent) are accused of simple, non-violent theft of amounts less than 5,000 pesos (about $380.00). And, in cases involving the sale of drugs, where they received less than 1,600 pesos (about $125.00) from the sale.

With respect to the Sinaloa state prison system, the prisons have an occupancy rate of less than 100% (one hundred per cent), but present rates of homicides and incidences inside the prisons that are greater than the national average. Here, the degree to which this has affected the physical integrity of the inmates is alarming. The entity has the fourth highest rate of homicides per each thousand inmates with 2.8% , (a rate that is ) surpassed only by Tamaulipas, Durango and Coahuila. This is without taking into account the "deaths for health reasons" and suicides reported inside the state's jails.

The report also documents that Sinaloa is also the state with the second highest number of homicides per one hundred thousand inhabitants (at 68.9% (sic)), (a rate) surpassed only by Chihuahua;  that occupies third place with respect to the level of impunity for this offense (93%), higher than the median, which is 80.6%; which has 298 police officers for every 100,000 inhabitants (lower than the national average of 354); and in which only 7.3 % of persons surveyed stated they trusted the Preventive Police (Policia Preventiva) "a lot," a percentage that is also below the (national) average,  7.6%.    [Note: the 68.9% figure the author cites to represent the number of homicides per 100,000 should not be a percentage, but rather, "68.9 per 100,000," a number more in line with reported statistics from other sources.--Translator] 

The book, El preso sin condena en America Latina y el Caribe ("The 'unsentenced' prisoner in Latin America and the Caribbean), published under the auspices of the Institute of Latin American Nations United for the Prevention of Crime and Treatment for the Offender (Ilanud; Instituto Latinoamericano de Naciones Unidas para la Prevencion del Delito y Tratamiento del Delincuente), mentions that "there are prisoners that remain incarcerated due to the lack of an adequate defense and because of economic limitations that prevent payment of bail. Many of them will be absolved in the end. And it is absurd to tell them that they have not been subjected to a (prison) sentence, but simply to a precautionary measure intended to safeguard the process."

The text portrays prisons as institutions that, in general,  are highly criminogenic and pathogenic, and points out that "there are few things more unjust and which provoke more indignation than a State that, incapable of investigating crimes effectively, instead opts in advance to turn preventive incarceration into a prison sentence, most times unnecessary or unjust, in ongoing violation of international norms."

Presumed guilty

The principle of a presumption of innocence takes the form of a right or procedural guarantee in international treaties as well as constitutionally, and its application determines whether the criminal justice system works justly or unjustly.

It is incorporated into Article 11 of the Universal Declaration of Human Rights, according to which "any person accused of a crime has the right to be presumed innocent until proven guilty, pursuant to the law and in an open trial in which all the guaranties necessary for his defense have been protected."

Inspired by the Universal Declaration, Article 8 of the American Convention on Human Rights, or the Pact of San Jose (OEA), provides that, "any person accused of a crime has the right to be presumed innocent until his guilt has been legally established." And, in similar terms, it is placed in Article 14 of the International Pact on Civil and Political Rights of the United Nations.

In this case, preventive prison alone is a contradiction of the philosophical principle of  presumption of innocence; a principle that is based on Article 14 of our Magna Carta: "No one may be deprived of his freedom, or of his properties, possessions or rights, except by means of a trial conducted before previously established tribunals."

According to studies by Guillermo Zepeda, 80% to 90% of defendants in Mexico "are suitable candidates for processing their cases while on conditional release with some form of precautionary measures." Nevertheless, "the use of preventive incarceration in Mexico --which is automatically imposed  on persons accused of a crime -- has become a predetermined sentence."

The professor maintains that, "in Mexico, the consumption of drugs is being criminalized, the last link in the chain, because there are 12,000 drug traffickers in jail, 87% of whom are charged with drug possession, and only 13% of whom are charged with trafficking, manufacturing and selling drugs."

Captivity, idleness and waste

  

-- The Mexican judicial system provides that a sentence must be issued within two years, however, there are innocent persons who spend up to six years in prison before being released without charges.

-- Mexico spends up to 33% (thirty-three per cent) of its yearly Public Security budget maintaining prisons that do not reeducate, do not socialize nor do they prevent crime.

-- Mexico each year spends an average of two billion pesos (approximately $144 million) per year to support prisoners who have not been sentenced; half of them will be released for lack of evidence or because they are innocent.

-- In Mexico each year, 250,000 prosecutions are initiated that may go on for years.

-- Currently, 70% of criminal justice system resources are dedicated to low impact crimes: a person accused of stealing some cookies could spend three months in jail and finally be released on bail upon payment of 800 to 900 pesos (between $62 and $70 dollars).

-- Every day that a person spends in jail instead of going to work he loses 45 pesos ($3.50) of income.. Today, there are more than 92,000 prisoners in Mexico who have not been sentenced, which could generate income of at least  1,331 million pesos (about $103 million dollars).

-- 60%  of prisoners who have not been convicted are of productive age (between 16 and 30 years old), and, except for exceptional cases, could be processed while free subject to precautionary measures other than preventive incarceration.

-- The yearly cost of the widespread and arbitrary application of preventive incarceration prior to trial is up to 10 billion pesos  (about $760 million dollars) for the State, the detainees and their families, and the community.

-- The number of "unsentenced" prisoners per 100,000 population is 65.3. However, there are states like the DF or Baja California where this number reaches 143.1 and 221.1, respectively.  

-- The rate of judicial error (persons who were arraigned before a judge, subjected to criminal prosecution and sent to preventive imprisonment without the MP [the prosecution] being able to substantiate charges for sentencing) is 20.8 per cent for the entire country.

-- Mexican prisons are at 130% of capacity, and some exceed 300% capacity.

-- More than 80% of the budgets for correctional institutes (Popular name: "Cereso"; Centro de Readaptacion Social)  are used to pay officials' salaries and other fixed costs, which deprives other priorities such as social re-adaptation programs. 


-- 93% of prisoners never saw an arrest warrant or court order.

-- Half of all inmates in the country's prisons were informed of the reasons for their arrests when they got to the office of the prosecutor, and 10% were informed in prison.

-- Of all detainees, 72% were never informed of their right to remain silent, and, in 70% of the cases, they were not even told they could make a phone call. Half of all inmates were not represented by a lawyer when they testified.

-- The total number of inmates in excess of capacity is 40,042 positions. 

Source: www.riodoce.com.mx