Preventive Prison as the Last Ratio

Abstract

There are many debates that arise in relation to the deterrent, social and even rehabilitative utility of pretrial detention. This work starts from the assumption that it should be used as a last ratio and not prima facie as it currently happens, by virtue of the fact that it has no preventive or rehabilitative function in the commission of crimes and, on the contrary, it sometimes causes irreparable harm, particularly in the case of primary offenders. Legal hermeneutics and epistemology are used as research methods and as the main technique for the review of specialized literature and statistics that allow confirming the hypothesis and reaching valid conclusions.

1. Introduction

The changes to the constitution and postretirement in the ordinary law were reforms that implied a great change in the delivery of justice in criminal matters in Mexico. However, some of the most popular figures of the previous system seem not to have lost their prominence. Such is the case of preventive detention, which incidence instead of decreasing has become the central axis in the so-called new criminal justice system.

In this chapter we analyzed the reasons why this is happening and examined the main scholars’ perspective on the topic, the definition of preventive detention, its purpose in the context of human rights and the world’s outlook on reparative justice to generate this proposal.

It seems that the constitutional content that incites the penal reform and transforms the justice system of this nature into an accusatory system derives in precepts that could seem ambiguous. We can reach this conclusion if we examine the figure of preventive detention in the face of the presumption of innocence.

Rosa Rodriguez ([1], p. 147–171) says, paraphrased to Buscaglia, “the change of political parties in 2000 strengthened both ordinary and organized criminality. In this scenario, the emphasis of government security institutions was mainly focused on the second one. Consequently, lawmakers’ discussions before the adoption of the constitutional reforms in 2004 and in 2007 emphasized this problem” ([1], p. 149).

The constitutional reform was imperative for human rights protection and the progress made in this aspect is undeniable. The administration of justice has been transformed and a comprehensive reform of the prevailing system is being undertaken at a national level.

In this new legal environment, figures such as the presumption of innocence and the diversification of measures other than preventive detention are a privilege. In this context, we have found that judges use preventive detention as a prima facie measure in most cases, leaving aside the rest of the precautionary measures that seek to avoid this.

Scholars have many papers [2] about the problem of the preventive detention in relation with insecurity and organized crime. It is important for criminal law to have the same view about high penalties, given that their increase is not dissuasive for the commission of offenses. Legislators do not seem to realize that increasing penalties does not solve high crime rates in the country and that establishing preventive detention for all crimes cannot be the solution either.

If we examined the results of the reform, we could find positive aspects that have influenced the administration of justice and the reduction of impunity. In 2019 Hinojosa and Meyer [3] consider,

More than eleven years and two presidential terms have passed since Mexico approved sweeping constitutional reforms mandating the nationwide adoption of an adversarial criminal justice system, a tool meant to strengthen Mexico’s capacity to counter violence and impunity. A shift away from the country’s previous inquisitorial system—in which court procedures were largely oriented around written documents presented to a judge— the new system is based on oral trials in public courtrooms.

But what do we understand by pre-trial detention and what are its purposes?

This is an important point to elucidate in this section in order to address the main point of this investigation. It is very important because this is not a problem exclusive of Mexico. For example, in the United States more than “400,000 people are currently being detained pretrial – in other words, they are awaiting trial and still legally innocent. Many are jailed pretrial simply because they can’t afford money bail, others because a probation, parole, or ICE office has placed a ‘hold’ on their release. The number of people in jail pretrial has nearly quadrupled since the 1980s”.

In general terms, we can say that preventive detention is a precautionary measure. That is, it is a prevention or insurance measure that is imposed by judicial determination to achieve the ends of the criminal procedure, as Arteaga Sandoval [4, 5] tells us. In this sense, pretrial detention refers to the detaining of an accused person in a criminal case before the trial has taken place. A more complete definition is: “Measure ordered by the liberty and detention judge at the request of the investigating judge. The latter may request that a person charged with a crime or misdemeanor punishable by at least three years in prison be placed in jail, prior to his or her trial. Pre-trial detention must be justified in accordance with the conditions laid down by law” (Pretrial Detention, 2022).

We can find several elements in this definition. In the first place, in any country it must be ruled by a judge; and although it is true that each legislation enshrines different figures in the criminal process, in all legislations preventive detention can only be dictated by a judge. Secondly, preventive detention, as its name indicates, only takes place before the start of the trial. And thirdly, there must be the presumption of the possible commission of a crime. It is in this point where scholars have conflicting positions when considering that preventive prison collides with the constitutionally enshrined presumption of innocence.

Garderes and Valentín ([6], p. 133–136) consider that in order to dictate it, the judge must start from the principles that they consider emanate from the constitution itself and that we can reduce to the following ones. The first principle starts with the impossibility of using pre-trial detention as an advance payment of a penalty. The second refers to presumption of innocence. The third contemplates the right of the accused to remain free during the processing of the criminal process and therefore the exceptional nature that should govern pre-trial detention. A fourth principle is based on the precautionary nature of pretrial detention, which forces the judge to assess the possibility of the accused being subtracted or the possibility of obstructing the evidence. The fifth part of the accusatory principle establishes that preventive detention should only be decreed at the request of the public ministry or prosecutor’s office. A sixth principle is derived from the principle of proportionality, which some legislations evaluate by means of the degree of dangerousness and others by taking into consideration the legal minimum sentence established for the crime for which the accused is prosecuted. The seventh establishes the requirement of a reasonable duration of the process. And finally, the eighth principle determines the necessary impartiality of the judge in such a way that the same judge who decrees preventive detention cannot pass a penalty.

An essential aspect for preventive detention to become an exceptional measure is the establishment of alternative measures to this, so that the judge will be able to choose other mechanisms without focusing on pre-trial detention. However, it is not enough that these alternatives exist, it is transcendental that a change of mentality be brought about not only in court but also in the prosecution processes [7].

2. Legislation applicable to pretrial detention

In the Latin-American reality the Inter-American Commission on Human Rights (IACHR) considers that, historically, and particularly in performing its monitoring mandate, the Inter-American Commission has consistently referred to the excessive use of pretrial detention as one of the main problems affecting the respect for human rights of people deprived of their liberty in the Americas [8]. In the previous report, it is determined that Mexico, “where in mid-1996, of a prison population of approximately 116,000, more than half were being held in pretrial detention” [9]. While this Commission establishes the minimum rules for the providence of pretrial detention, the percentage of cases is higher than in Europe. In the chart made by the world prison brief, cited by Garcia Castro ([10], p. 3), Paraguay has the highest rate of people prosecuted in pre-trial detention with 77.9%, followed by Bolivia with 69.9% and Uruguay whith 69.7%. In this chart Mexico occupies the eleventh place with 39.4% of people in pre-trial detention.

The United Nations (Human Rights Council’s resolution 42/22) cited by Wola (April 2020:1), considers that “prison populations are growing at alarming rates in Latin America and the Caribbean, mainly driven by harsh and disproportionate drug laws. Indeed, the countries of the region have the highest rates of incarceration for drug-related offenses in the world”. In consequence, those circumstances cause prison overcrowding, given the obligatory use of pretrial detention for many offenses.

The Mexican Constitution (1917) establishes the guarantees of due process essentially in Articles 18 and 19, enshrining the presumption of innocence and the requirements to be able to order preventive detention. The latter is subject to the condition that the crime in question deserves a corporal punishment and establishes that it must be decreed in a place other than the one destined for extinction of the penalties [11].

It also follows from these precepts that preventive detention must be requested by the public ministry. This is clearly stated in the second paragraph, which is of the following literal tenor:

[…] The Public Ministry may only ask the judge for preventive detention when other precautionary measures are not sufficient to guarantee the appearance of the accused in the trial, the development of the investigation, the protection of the victim, witnesses or the community, as well as when the accused is being prosecuted or has been previously sentenced for committing an intentional crime.

Consequently, the constitution requires the determination of the criminal type to be able to establish if it has a custodial sentence. In addition, it establishes preventive detention once it has been shown that there are no other sufficient precautionary measures for the protection of the victim, witnesses, or the community, as well as when the accused is being prosecuted or has been previously sentenced for committing an intentional crime. We can demonstrate with this content of the constitutional norm under study the breadth that is conferred on the investigative body since it must ensure not only the protection of the victim and witnesses but also the community itself. This results in a reality not wanted by the legislator but consented through the drafting of the norm in question, why is it that the public ministry almost always gives preventive detention.

Therefore, pretrial detention is applied in a general way to any crime with corporal punishment, regardless of the other requirements mentioned above, we could speak of an abuse of preventive prison.

These situations are more problematic when the judge officiously applies preventive detention when the crimes listed by the article in question are updated. These crimes are: in cases of sexual abuse or violence against minors, organized crime, intentional homicide, femicide, rape, kidnapping, human trafficking, robbery home, use of social programs for electoral purposes, corruption in the case of crimes of illicit enrichment and abusive exercise of functions, theft of cargo transport in any of its modalities, crimes related to hydrocarbons, petroleum products or petrochemicals, crimes related to forced disappearance of persons and disappearance committed by individuals, crimes committed with weapons and explosives, crimes related to firearms and explosives for exclusive use of the Army, Navy and Air Force, as well as serious crimes determined by law against the security of the nation, the free development of the personality and health.

The catalog is so broad that we could truly say that the judge has a very wide discretionary power to establish pretrial detention without the need for a request from the Public Prosecutor’s Office. Consequently, pretrial detention is inevitably happening on a daily basis, leaving aside other mechanisms provided by the law.

In this sense Arteaga [4, 5] says “therefore, if the presumption of innocence, the guiding principle of the criminal procedure and the fundamental right of the accused, implies that throughout the criminal procedure the accused must be treated as innocent and, therefore, their freedom should be privileged at all stages of the criminal procedure, unofficial preventive detention clearly departs from this core principle and contradicts this fundamental right, in addition to opposing the precautionary nature of this measure, insofar as it fails to observe the characteristics and guiding principles of precautionary measures, since it implies, de facto, an a priori legal trial in which any possibility of defence is prohibited for the accused, who is anticipated to suffer a probable penalty and any evaluative scope of the control judge for its imposition is eliminated”.

At this point it is important to distinguish preventive prison in general from the unofficial. The first requires a justification, the second does not, which has implied a rejection of the latter by legal doctrine. We consider that informal preventive detention violates the presumption of innocence as a procedural principle.

The Mexican legislator recognizes this problem in the initiative of reform to the constitution and says in the motive’s exposition:

When the felony system was first created for the origin of provisional release on bail, he intended these to be exceptional. However, state and federal experience has shown that this exceptional process has colonized the rest of the system. Today there is an enormous abuse of preventive detention since most of the crimes are classified as serious by ordinary legislation. In order to overcome this state of things, the Constitution must determine those exceptional cases for which it will suffice to accredit the alleged material so that, in principle, preventive detention may proceed [12].

The question now is whether the reform solved the problem or, on the contrary, continues to facilitate the excessive application of prima facie pre-trial detention given that facts show continuity in the excessive application of said precautionary measure, privileging it with respect to any other that could be applied.

The code of criminal procedures determines what is related to preventive detention in Article 165 [13] which says:

Only for a crime that deserves a custodial sentence will there be a place for preventive detention. The preventive prison will be ordered in accordance with the terms and conditions of this Code. Preventive detention may not exceed the time that the law establishes as a maximum sentence for the crime that motivates the process and in no case will it exceed two years, unless its extension is due to the exercise of the right of defense of the accused. If after this term a verdict has not been pronounced, the accused will be released immediately while the process is being conducted, without this precluding the imposition of other precautionary measures.

The code considers preventive prison with exceptional character, when other precautionary measures cannot be used because they are not sufficient to guarantee the appearance of the accused at the trial, the development of the investigation, the protection of the victim, the witnesses or the community as well as when the accused is being prosecuted or has been previously sentenced for the commission of an intentional crime [13].

There are exceptions to the informal application of preventive detention when it comes to people over seventy years of age or who suffer from a terminal illness, as well as pregnant women, mothers during lactation. It may be established that preventive prison is carried out at home, but even in these exceptional cases the judge may decree preventive detention in a discretionary manner [13].

The code provides for informal preventive detention in certain tax crimes, but these provisions have been considered unconstitutional by the Supreme Court [14].

3. The Jurisprudence

The Interamerican Court of Human Rights [15], considers that preventive prison only proceeds when “there are sufficient indications to persuade an objective observer that the defendant will hinder the development of the trial or elude the action of Justice”: in other case the Court says that,

[…] the general rule must be the freedom of the accused while his criminal responsibility is resolved, since he enjoys a legal status of innocence that requires him to receive from the State a treatment commensurate with his status as an unconvicted person. In exceptional cases, the State may resort to a measure of preventive incarceration in order to avoid situations that could jeopardize the achievement of the ends of the process. For a custodial measure to be is in accordance with the guarantees enshrined in the Convention, its application must entail an exceptional character and respect the principle of presumption of innocence and the principles of legality, necessity, and proportionality, essential in a democratic society [15].

Furthermore, the Court specified that it is not enough for it to be legal, it is necessary that it is not arbitrary. For it not to be, it must have a purpose compatible with the Convention, it must be appropriate, necessary and proportionate, so that any restriction on freedom that does not contain sufficient motivation that allows to evaluate “if it [does not] adjust to the indicated conditions, [it] will be arbitrary and, therefore, will violate the Article 7.3 of the Convention. Thus, in order to respect the presumption of innocence, when ordering precautionary measures restricting freedom, it is necessary for the State to justify and prove, in a clear and motivated manner, according to each specific case, the existence of the referred requirements demanded by the Convention” ([15], pp. 110–111).

The Supreme Court of Justice of the Nation in Mexico considered with respect to preventive detention prior to the reform that there was indeed an abuse in its practice and with that order of ideas, subsequent to the reform,

[…] under the understanding that the informal preventive prison is a constitutional restriction to freedom personnel, which under international regulations must be a measure exceptional for its imposition, it can be affirmed that neither the legislator of the Constitution nor the ordinary legislator favored distinction of any of those figures in terms of the possibility of review, cessation or prolongation. In any case, pre-trial detention (in any modality) is profoundly restrictive of the right to liberty of the defendants in the accusatory criminal process and, therefore, must be reviewable [12].

In this way, the court limits the powers of the judge, even when preventive detention proceeds ex officio. The Court can review the decision that determines it and even revoke it for not conforming to constitutional requirements.

The Court insists that the singular character of preventive prison presupposes a figure of an exceptional nature, whose purpose is to “ensure that the accused appears at trial, to protect the development of the investigation and the protection of the victim and the witnesses, as long as other precautionary measures are not sufficient to fulfil the purposes pursued”. ([12], p. 74–76).

In this situation, the Court has considered unconstitutional the inclusion of informal imprisonment in crimes that do not seriously affect society, as is the case of crimes of a fiscal nature. By majority of votes, the plenary session of the Supreme Court of Justice of the Nation (SCJN) declared unconstitutional the informal preventive detention for tax fraud, and for the issuance, sale, transfer, purchase or acquisition of false tax receipts. The plenary session of the SCJN began the study of the constitutionality of the decree of November 8, 2019, which amends, adds, and repeals various provisions of the Federal Law against Organized Crime, the National Security Law, the National Code of Criminal Procedures, the Fiscal Code of the Federation and the Federal Criminal Code. These reforms are in terms of tax declaration and apocryphal tax receipts.

4. The preventive prison in Mexico

Bergman y Azaola [16] says that.

The intensive use of imprisonment is irrational. In our codes 95 percent of crimes have contemplated prison. In fact, there are no alternative sanctions to jail because there are no mechanisms or infrastructure to make them operable. In our environment of opinion so aggrieved by crime, we insist that prison is an exemplary punishment for all type of crimes. However, in the case of misdemeanors and non-violent crimes, other sanction mechanisms could be more effective and less expensive in social and economic terms.

The Mexican reality shows an oversaturation of prisons that derives in the non-compliance of the purposes that are supposedly pursued with it. If we add to this the problem of separating those who are subject to pre-trial detention from those serving a sentence, we find a material impossibility to comply with it. The catalog of crimes that lead to unofficial imprisonment seems endless and in no way are there elements to consider that it fulfills a deterrent purpose, since the commission of illicit acts has not decreased. Therefore, the Inter-American Commission on Human Rights recognizes it by estimating the need to reconsider the use of custodial measures, such as preventive detention, given it has not contributed to lowering the levels criminals in Latin America [7].

Gutierrez Roman [17] considers that “the abuse of preventive detention in Mexico is alarming. There are currently 222,600 people deprived of liberty throughout the country; of that total, 95,424, that is, 42.8%, are under this precautionary measure. These figures show the great structural flaws in the criminal justice system”.

The National Institute of Statistics, Geography and Informatics [18] in Mexico is obliged by the law on the execution of sentences to carry out the National Survey of Population Deprived of Liberty. Accordingly, the results of the 2021 survey indicate that there were 67, 584 people deprived of their freedom. From the above figure, it can be deduced that 72% of them already had a sentence and 38% have penalties of 21 years or more.

In consequence, the remaining 38% by exclusion are people who were sentenced to preventive detention, which allows us to determine the seriousness of the problem and the incidence of using preventive detention as prima facie and not as determined by law in an exceptional manner. However, it is also important to establish that of the percentages mentioned with penalties, 73% were men compared to 53.7% of women, a fact that is relevant as an indicator of the increase of crime amongst women, since if in them the pending number of sentences is much greater, the increase is evident ([18], p. 84).

Although the numbers cited by Gutierrez Roman dating from 2013 to those put forward by INEGI in 2021 [18] show a significant reduction in people deprived of their liberty, this is not derived from a reduction in the use of preventive detention.

5. Conclusions

The pretrial detention is the most popular measure used by the judges in all Latin America. The law previews in many offenses’ pretrial detention as obligatory, while the other measures are few usuals, therefore affecting the presumption of innocence principle. All of this even though the measure has not proven to be a deterrent to crime and, on the contrary, has saturated detention centres.

From the analysis carried out, both, constitutional text and the ordinary laws that are mentioned, we can conclude that despite the penal reform and its undeniable advances, there is still much to be addressed about favoring alternative precautionary measures to preventive detention. It is an issue in which there seems to be no progress, since the legislators themselves have focused on increasing penalties and making an exhaustive enumeration of crimes that allow it, in an informal manner, and which is so broad that it seems the exception is on the contrary, those crimes that do not have said unofficial imprisonment.

How can Mexican judges bring about a change of paradigms? We consider that the law is the main obstacle for its own change. Whilst the constitution establishes in its article 18 that preventive detention can be applied whenever the crime merits corporal punishment, and in article 19 it consecrates it as an exceptional measure, inconsistently in the subsequent paragraph it makes an exhaustive enumeration of crimes where it should be dictated informally. Such crimes being the following: in cases of sexual abuse or violence against minors, organized crime, intentional homicide, femicide, rape, kidnapping, human trafficking, robbery home, use of social programs for electoral purposes, corruption in the case of crimes of illicit enrichment and abusive exercise of functions, theft of cargo transport in any of its modalities, crimes related to hydrocarbons, petroleum products or petrochemicals, crimes related to forced disappearance of persons and disappearance committed by individuals, crimes committed with weapons and explosives, crimes related to firearms and explosives for exclusive use of Army, Navy and Air Force, as well as serious crimes determined by law against the security of the nation, free development of the personality, and health.

We can conclude that it is the legislator who makes an excessive use of preventive detention and with little legal technique makes the enumeration proper to an ordinary procedural system and not to the fundamental charter.

It has reached the point of considering even informal imprisonment for fiscal crimes in which the Supreme Court determined its unconstitutionality. It is this precedent which represents an important effort in the construction of a fairer penal system. The road ahead is long since it also requires a change of mentality of the judges and of the Mexican State itself, which have focused a lot on the so-called criminal law of the enemy [19, 20, 21, 22].