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López Obrador opposes elimination of mandatory pretrial detention

The president said that getting rid of mandatory pretrial detention will only cause more judicial corruption, but legal experts said that it will likely benefit those López Obrador claims to champion: the poor.

MEXICO CITY (CN) — Mexico’s president Wednesday announced that his administration will provide the Supreme Court with a list of corrupt judges ahead of a vote to eliminate mandatory pretrial detention. 

“We’re talking serious crimes, we’re talking about corruption, about kidnappings, femicides, of course, homicides, money laundering, organized crime,” President Andrés Manuel López Obrador told reporters at his morning press conference Wednesday. 

López Obrador has harshly criticized the country’s judicial branch since Supreme Court Justice Luis María Aguilar last week proposed an initiative to declare mandatory pretrial detention unconstitutional.

“There is no argument in favor of the existence of this concept that is not linked to the arbitrary use of punitive power,” reads the 191-page initiative. “Arguing in favor of its validity can only be done in the shadow of human rights and in a manner not in accord with the prevailing reality in this country.”

The initiative would do away with mandatory pretrial detention for 16 crimes, including organized crime, homicide, femicide (the murder of a woman on the basis of her sex), rape, corruption and kidnapping, among others. 

Mexico’s other preventative custody measure, justified pretrial detention, is based on a defendant’s perceived risk of failing to appear in court, endangering victims or witnesses, or otherwise obstructing the administration of justice.

López Obrador has claimed that the elimination of mandatory pretrial detention would increase corruption in Mexico’s judicial system.

“The majority of the members of the judicial branch are not people characterized by honesty,” he said Tuesday. “They don’t resist cannon shots of money, they don’t resist temptation, or they’re representatives of vested interest groups, they don’t represent the people.”

Mexico’s national federal judges association JUFED responded to López Obrador’s accusations Tuesday, saying in a tweet that it does not accept “unjustified generalized labels.”

“As judges of the federal judicial branch, our only commitment is to safeguard the Constitution and the human rights of all Mexicans,” read the accompanying press release. “The rule of law, above all things, is the route that guarantees the viability of a democracy in which the citizenry can exercise its liberties.”

López Obrador’s crusade against corruption is arguing a “false debate” in the arena of mandatory pretrial detention, according to Javier Martín Reyes, a law professor at Mexico’s National Autonomous University. 

“It’s true that there are corrupt judges — we can’t generalize, but there are some cases at both the federal and local levels,” said Reyes. “But keeping mandatory pretrial detention does nothing to help avoid that corruption.”

Criminals who want to influence a judge can do so at other points in the judicial process, Reyes said, like bribing or intimidating to avoid being charged in the first place. 

Watchtowers at the Santa Martha Acatitla women's prison in Mexico City. (Cody Copeland/Courthouse News)

One sector of Mexican society would surely see a benefit from Aguilar’s initiative, and it is comprised of the very people López Obrador claims to champion.

“What mandatory pretrial detention does do is make those who cannot afford good lawyers the ones who are the most affected,” he said. “Prisons in Mexico are full of poor people who simply don’t have the resources to pay for a good defense, because public defenders offices leave much to be desired. Those who can’t afford to fight in the justice system are those who typically end up convicted.”

Forcing judges to order pretrial detention on a case-by-case basis would actually incentivize police and district attorney’s offices to do what they largely do not do in Mexico: investigate crimes.

“We’re never going to have justice in Mexico until we can guarantee that victims and society are given the truth, that those who commit crimes pay for them, that victims will receive redress and guarantees that the crime won’t be committed again,” said Reyes.

While the court was set to debate the issue last Thursday, Chief Justice Arturo Zaldívar postponed the discussion until Monday, Sept. 5. 

The idea of eliminating mandatory pretrial detention came after Zaldívar made an unorthodox and unprecedented visit to a women’s prison in Mexico City to discuss alleged abuses of the legal concept with inmates.

Zaldívar spoke with over 200 female inmates of the Santa Martha women’s prison, many of whom claimed to have been behind bars for years without ever having been convicted of a crime. 

While the law states that a person cannot be held in mandatory pretrial detention for more than two years, several of the women told Zaldívar that they had been in prison for much longer, some for as long as 15 years. 

Since then, a collaborative effort by the federal judiciary, the Mexico City government and the Federal Institute of Public Defenders has orchestrated the release of three women from the Santa Martha prison. 

However, none were in mandatory pretrial detention. All three had been convicted of the crimes they committed, and had been granted reduced sentences, but were unable to get released due to inadequate defenses.

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