Miriam Heredia: Covid-19 in Mexico: Magnifying the Unresolved Agenda in the Penitentiary System

Miriam Heredia is a lawyer that has been working for human rights effectiveness in Mexico, a Mason Fellow, and a Mid-Career Master in Public Administration at the Harvard Kennedy School. She previously worked at the Attorney General of Mexico as Deputy Director General addressing human rights violation cases before international bodies and the Inter American Court of Human Rights.

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By Miriam Heredia

There is no doubt that crises generate great turning points in societies. However, there are also subtle moments of change, which, although they may not seem significant when they happen,  can determine our future and reveal a path for us to follow.

Since I was little, I felt a strong call towards defending justice. Even when I did not know fully the meaning or dimension of the concept. This led me to experience moments of inflection in my life; some simple and apparently irrelevant—such as being the first student suspended in elementary school for confronting classmates who were bullying a friend of mine—as well as others of deep affectations, such as facing threats as a human rights lawyer. All those moments, the obvious and the apparently insignificant, consolidated my vocation to advocate for those who believe they have no voice to claim injustices.

Even with that call clear, I never imagined that facing a crisis like Covid-19 would end up reaffirming it with greater stamina. During Juliette Kayyem´s Crisis Management and Mitigation course at the Harvard Kennedy School, we learned that "crises will always be a magnifying reflection of existing systemic shortfalls." Those words had a special resonance when I began to remember my experiences monitoring the human rights situation in the Mexican prison system. I was genuinely concerned about how the system's shortcomings could be potentiated in this emergency context.

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My knowledge of prison life came early in my professional path. In 2013, the Congress of the State of Michoacán, Mexico, issued a call to form a new Citizen Council to advise the State Commission on Human Rights. Although I was 26 years old, I participated. Being the youngest contender, was a fact that raised doubts for almost everyone involved in the process -including myself-, fearing that maybe I would not have enough experience to face a challenge which carried a serious level of responsibility.

Nevertheless, I was appointed to serve on the Council. The post was honorary and pro bono, nevertheless implied a whole new human rights strategy set by the newly elected members. I wanted to participate in such a strategy by evaluating the local prison system. It was a huge challenge in which it was difficult to know where to start, but it could also be translated into an opportunity to learn first-hand about the precarious and unworthy situation that I already sensed people in prisons lived. Thus I could be able to think of effective mechanisms to improve the quality of life of the inmates in general, and particularly, to denounce cruel, inhuman and degrading practices that, allegedly were routinely committed, to the extent that they were already normalized.

The prison assessments carried out by the Human Rights Commissions (in human rights jargon commonly known as Ombudsman) aim to monitor and expose the level of compliance with human rights standards, as well as the shortcomings detected. In them, compliance with such standards is evaluated through authorities’ questionnaires, interviews with inmates and graphic documentation. The assessment items generally are the following: what is the legal situation of the inmates, what measures exist to guarantee a dignified and safe stay, what provisions guarantee their physical and mental integrity, and what are the governance structures for maintaining the order. Additionally, it should be evaluated whether different measures are implemented for people in special situations of vulnerability, such as the elderly, pregnant women, people belonging to indigenous groups, people with different sexual orientation and people that have special health conditions.

During my inspections—which we established randomly and unannounced— I found myself facing a reality full of deficiencies and mainly forgetfulness. The previous inspections were periodic, which gave the prison authorities the opportunity to hide certain circumstances, whether they were about the infrastructure or the physical integrity of an inmate. What could not be hidden in any way, whether in a scheduled inspection or in a unannounced one, were the following phenomena: prisons do not usually have an updated detainee registry, or a medical station with sufficient personnel and medications, a physical separation between the accused and sentenced ones, decent places for conjugal visits and the necessary capacity to house all inmates without facing overcrowding.

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Likewise, the jurisdictional and non-jurisdictional mechanisms that exist against acts of prison authorities, are out of reach of the prisoners, whether for fear of reprisals or lack of financial resources. I remember vividly the resistance of a prison’s Director to grant us access to the maximum-security area, so that we could carry out the inspection. When we got through, after various confrontations, we found an elder person who could barely move and say his name. With his arms crossed over his belly and evident pain, he told us that he had been requesting urgent medical attention for more than a month now, and that had been ignored at all times. He had a part of the intestine exposed and apparently was seriously infected.

Despite there are cases as outrageous and evident as the one cited above, there are many other practices that can hardly be detected and reported. Cruel, inhuman or degrading treatments are extremely difficult to document. Providing rotten food, baths with ice water, removing blankets in extremely cold weather, taking the population out in the sun for only ten minutes, prolonged isolation and practices that tend to nullify the personality, are some of the most frequent practices. Unfortunately, these yet unmet systemic failures are magnified considerably in the face of a crisis such as Covid-19.

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In Mexico, a “State of Emergency” has not yet been decreed as it is mandated by the article 29 of our constitution, which aims to grant certainty about lawful restrictions on specific fundamental rights, so that authorities can be able to adequately face the emergency. However, the outbreak of Covid-19 did accelerate in the General Congress the promulgation of an "Amnesty Law" that was already being discussed months before the pandemic. Said Law, published on April 22, 2020 and exclusively federally applicable, grants “amnesty” in favor of people who were prosecuted or sentenced in 6 circumstances: abortion, drug trafficking committed by people in vulnerable situations, members of indigenous groups who did not had proper legal defense, robbery without violence and sedition.

In this regard, the executive branch has 60 working days to create a Commission empowered to review said requests for release, which later shall be further reviewed by a judge. It should be noted that such a law was one of the expected promises made by the current President of Mexico, when he was campaigning, in order to combat violence and promote a "pacification process" in the country.

Unfortunately, this legislation is far from meeting the needs of the prison system and facing the health implications spurred by Covid-19. In addition to questioning whether this instrument actually constitutes a legal mechanism that prevents criminal prosecutions in order to achieve peace, or if it is just a desperate measure of early release in the face of the Covid-19 contingency, it is imperative to mention that it fails to understand the precariousness that is accentuated by the pandemic we are facing.

The overcrowding in Mexican prisons will not cease to exist. The Commission will be created in at least 3 months and there are no regulations that specify the administrative or health procedures to be followed. Nor have the necessary powers have been issued so that certain federal judges can evaluate such amnesty requests. According to the National Human Rights Commission, 85% of the prison population are prosecuted by local and not federal crimes. For example, the crime of abortion as well as that of robbery without violence, are generally prosecuted at the local level, which is why the majority of women who have been penalized for exercising their right to decide, as well as offenders for non-serious crimes, will not be able to enjoy the benefits of the said Amnesty Law.

Likewise, in order to demonstrate that a person belonging to indigenous groups did not have the proper legal counsel in their native language, or that a person found himself in a vulnerable situation when they were trafficking narcotics; anthropological, linguistic, social and psychological, expert opinions are required, which are hardly available to this population even under normal circumstances. Therefore, we cannot even speak of an approximate number of people that could be benefited to depressurize the saturated detention centers throughout the country.

Additionally, the insalubrious conditions of the prison centers have not been mitigated and this considerably enhance the rate of infections. This was already reiterated by Human Rights Watch on April 2 and by the International Committee of the Red Cross, since throughout Latin America the lack of soap, water, chlorine and other supplies necessary to prevent contagions has been documented during this pandemic. It should be noted that these shortcomings do not put at risk only the people deprived of their liberty, but their relatives, medical personnel, defense attorneys, security agents and any kind of visitor. We also do not have approved protocols for admission, case detection, isolation, remissions and mitigation due to a Covid-19 contagion. In addition, the pandemic is causing deep affectations to the mental health of both the inmate population and their custodians. The perception of the risk of contagion and the restriction in visits catalyze fights and increase the risk of rioting. It is not a coincidence that we have seen this phenomenon in Venezuela, Colombia and Peru, as well as the iconic photo of the massive jailbreak in Brazil.

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To these material and logistical challenges, we can add the deficiency of the authority to make the right to information and accountability effective. If both the numbers of people infected and killed by Covid-19 in Mexico are in dispute, much less do we have effective mechanisms to know the number of infected people and deaths -as well as the evaluation of the existing risk- in each penitentiary center. Stories of women looking for their husbands and loved ones without obtaining any kind of answer, begin to be a common denominator. There is no public list of the hospitals to which inmates can be transferred or of those centers that do have special spaces for medical isolation - not disciplinary - and what specific security measures will be imposed, in order to provide certainty to their relatives.

Despite having international guidelines such as the Tokyo Rules and the Mandela Rules, the gap for people in our prisons to live under decent conditions and under adequate security measures continues to be abysmal. The crisis we are facing is not only a "health emergency”, it constitutes a series of events that reveal systemic challenges that have been historically neglected and forgotten, including the importance we place on the effectiveness of human rights in the Mexican prison system.

It is hard to visualize all the great social changes that this pandemic will generate, but I do not doubt that it will awaken individual reflections that will hold future significance and that can be identifiable as “determining factors” many years later. Perhaps, apparently irrelevant moments like the one I lived when I was a child and was suspended, can outline our life paths. When I explained to my parents what had happened, they said, "When someone tries to silence another person, you have more reason to intercede and speak out." Fewer people have as little opportunity to raise their voices - and ears that want to hear them – as the prison population. Nelson Mandela said it well: “It is said that no one truly knows a nation until one has been inside their jails. A nation should not be judged by how it treats its highest citizens, but those that have little or nothing."