Miguel Quintana-Navarrete: An Empirical Analysis of Latin American Criminal Justice Systems

Miguel Quintana-Navarrete is a Ph.D. Candidate in Sociology at Harvard and a Graduate Student Associate at DRCLAS. His main areas of interest are the sociology of crime and law, urban and community sociology and political sociology.

 

By Miguel Quintana-Navarrete

My first jobs were in the Mexican justice system. For several years, I participated in innumerable trials and judicial decisions. I witnessed the consequences these processes have for the victims, the accused, the sentenced (or not) and the people working in the system.  This experience taught me two closely connected lessons.

First, I became aware that my true interest in the law was in understanding how it was applied in practice, rather than understanding its contents or interpretation. Bit by bit, I began to realize how the creation, application and violation of laws represented social, political and institutional phenomena, beyond the legal definitions and interpretations taught in law school. Second, I began to fathom the huge existing gap between the Mexican justice system and regular citizens.  At least in those days, and in spite of the will, honesty and good preparation of many of the people working in it, the system was in general opaque, inefficient, at times unjust and other times corrupt. The low level of satisfaction of those who used the court system, as well as the general citizenry, reflected this reality.  In the area of criminal law, the system punished a tiny portion of the crimes committed in the country, but it was relentless with those who were accused, whether they were guilty or not. And the majority of these individuals came from less privileged socio-economic sectors.

What I learned and the questions that arose from this experience led me to study sociology.  From this disciplinary perspective, I research—among other things—the influence of legal and extra-legal factors in judicial decision-making and, more broadly, the consequences of the criminal justice system for both the victims and the accused, as well as for their families and communities in Mexico and other Latin American countries.

These issues are particularly relevant for Latin America because in recent years, many of the region’s criminal justice systems have undergone radical changes. These systems have been transformed from mainly inquisitorial to primarily adversarial. As a rule, in the inquisitorial process, the judge plays the dominant role. He or she is in charge of the process, from carrying out the investigation to resolving the case.  In contrast, in adversarial processes, the main actors are the opposing sides: the prosecutor and the accused with his or her attorney. The role of the judge is only to guide the process and to guarantee the rights of both sides. Much has been written about the differences between the two systems and their varied versions and adaptations. For example, the former Mexican system was characterized as a mixed one with elements of both the inquisitorial and adversarial systems. And the new adversarial systems in the region aren’t entirely adversarial. But in general advocates of the adversarial system argue that its principles are more conducive to criminal procedures that follow the rule of law and are more transparent and efficient, that is to say, more just.

However, we know very little empirically about the operation of these new systems. This is problematic because their design and operation have implied enormous legal and institutional changes contradicting traditions and ingrained practices. At the same time, these changes have introduced foreign legal concepts, such as plea-bargaining, some of which have been questioned in the United States and elsewhere. We still don’t know how these new methods are being used or, in more general terms, how the new systems are complying with their stated objective to produce more just trials and procedures for all involved.

One of my research projects (with Gustavo Fondevila) is focused precisely on describing and understanding the factors that determine decision-making in these new systems, with an emphasis on their potential effect on the reproduction of social inequality. For this project, we have gathered data from records of criminal procedures in Mexico (specifically, the state of Mexico, a large part of which lies in Mexico City’s metropolitan area) and in Argentina. We plan to gather information from other countries in the region in the near future.

For this project’s first article, we analyze detentions without an arrest warrant when the person is caught committing a crime or immediately after, as well as pretrial detention in the state of Mexico and their impacts on the result of criminal procedures.  The majority of criminal procedures under the old system began with arrests of people caught in the act. Prosecutors and police often took advantage of the opportunity to obtain coerced confessions by physical or psychological abuse. Pretrial detention was also ordered in most of the criminal procedures, that is, the accused remained in prison during the proceedings, which could last months or even years. In addition to lending itself to abuse, the extensive use of pretrial detention violates the presumption of innocence until proven guilty and the right to an appropriate defense.

One of the aims of the new criminal justice system was to reduce the use of arrests without warrants and pretrial detention. But in our research, we found that both measures are still widely used.  Moreover, controlling for the characteristics of the accused and the case itself, both measures increase the likelihood of conviction. This influence could be questionable for a variety of reasons including its potential association with violations of fundamental rights such as the presumption of innocence or the right to an adequate defense, the lack of incentives for the improvement of the investigative capabilities of the police and the prosecution , and the worsening of social inequities. 

In the project’s second article, we analyze the effectiveness of public defenders in the state of Mexico. As mentioned previously, the two sides—prosecutors and defense attorneys—play a dominant role in the new system. Therefore, the professionalization of public defenders is fundamental for the system to work well. However, in spite of much existing literature on extra-legal factors that work against the accused in criminal trials such as race or ethnicity, gender and socio-economic status, legal representation has been explored to a much lesser degree, even in the United States.  

For our research, we compared the effectiveness of public defenders with that of private attorneys. Our preliminary results show a higher likelihood of a case being resolved through plea bargaining with a public defender. Private attorneys tend to have cases resolved through other alternative means that in and of themselves are less punitive. If public defenders are not as effective as private attorneys, then it becomes difficult to talk about fair procedures that guarantee an adequate defense, especially because most criminal cases in Mexico are handled by public defenders. This situation also has important implications for social inequality, since most people who use public defenders come from the least advantaged sectors of society.

The adoption of adversarial criminal justice procedures in Latin America has generated great hopes, in large part because of the principles of transparency and justice embodied in these systems. But in reality, we have little empirical evidence of how these systems work.  Our research shows that, at least in the state of Mexico, some aspects of the criminal justice system continue to operate as they did under the old system.  And this suggests that the criminal system continues to be unjust, reinforcing the structures of inequality within the society. Legal transformations are not of much use if this quest for justice is not reflected in their implementation. It is up to us—as academics, people who work in the system, users or the general public—to make sure that these systems evolve to embody these principles. If we fail, we will continue to have criminal procedures that in practice undermine the fundamental principles that they protect in theory.

See also: Mexico, Justice