MEXICO CITY – In Mexico, a long list of nonviolent crimes — such as home burglary and freight and fuel theft — bring automatic pretrial detention, with no bail or house arrest allowed.
Mexico’s Supreme Court is expected to rule soon on that “no-bail” policy, with some justices arguing it violates international treaties that say pretrial detention should be used only in “exceptional” cases to prevent suspects from fleeing justice.
Suspects accused of murder and other violent crimes seldom get released on bail anywhere in the world. But in Mexico, the list of charges that allow a suspect to be detained pending trial has grown to 16, among them abuse of authority, corruption and electoral crime.
Yet only about two of every 10 people accused of a crime in Mexico are ever found guilty. That means that of the estimated 92,000 suspects now in cells pending trial, often with hardened criminals, around 75,000 will spend years locked up in Mexico's crowded, dangerous prisons, unlikely to be convicted.
Trials in Mexico can drag on for a surprisingly long time. Two men were recently released with ankle monitors after spending 17 years in prison while on trial for murder. Strangely, now that they have been convicted, they are both out while pursuing appeals.
One of them, Daniel García Rodríguez, said, “We are also worried that almost 100,000 Mexicans are held in prison pending trial. They and their families are overwhelmingly poor, and pretrial detention has made them even more vulnerable.”
It all adds up to a lot of innocent people spending years in prison. Activists say an increasing number of Mexicans are forced to opt for a form of plea bargain simply because they are likely to spend more time in a cell trying to clear their names than they would if convicted.
President Andrés Manuel López Obrador has expanded the number of crimes considered ineligible for bail and he has publicly called on the Supreme Court not to release more people pending trial.
His administration argues that would create additional pressures or threats against judges to accept bribes in exchange for releasing suspects, and create a “revolving-door” justice system in which suspects could walk out of jail as soon as they are detained.
“It is a question of preventing them from fleeing justice, or from attacking victims or threatening witnesses, or continuing to commit crimes or direct criminal activities,” an Interior Department statement said in urging the Supreme Court not to change the rules.
Assistant Interior Secretary Ricardo Mejía argued Friday that because judges in Mexico are so corrupt, “We wouldn't just return to the ‘revolving door,’ rather we would be talking about open doors ... when there was a feeling that judges freed some criminals faster that they could be caught."
Activists say there is also a question of whether Mexico should be locking up people for years just on the say-so of police. The country's police forces aren't known for sophisticated investigative techniques and often keep suspects locked up on the thinnest of suspicions while they try to build cases against them.
“What they do is: 'First I'll detain you, and then I'll investigate you,'" said independent Sen. Emilio Álvarez Icaza, a former human rights official.
Luís Alejandro Chávez spent two years in prison awaiting trial for a murder he says he didn't commit. The evidence against him? He had the same nickname — “El Potro,” or “The Foal” — as a man in a neighboring state.
“Just for having a nickname, they can ruin somebody's life,” Chávez said in a documentary produced by the activist organization Renace (Reborn), which eventually took up his defense and got him freed.
Chávez, like most suspects held pending trial, didn't have money to pay a private lawyer, so he had to rely on one of Mexico's underpaid, overworked public defenders, who often must handle 300 cases at one time. Chávez said that after his initial hearing, he almost never saw the lawyer again.
Mexico does not have cash or property bail like the United States. Instead, for those it does release before trial, there are more than a dozen mechanisms aimed at ensuring they show up in court, ranging from electronic monitoring devices to confiscation of passports to periodic check-ins.
Chrístel Rosales, of the government watchdog group Mexico Evalua — Mexico Evaluates — said those measures have been shown to be about 90% effective in ensuring people appear for trial, without the pain, cost and disruption of holding someone in prison.
Pretrial detention weighs heavily on women, Rosales said. About seven of every 10 women in Mexican prisons are being held pending trial, a figure that rises to nine of every 10 in some states.
Nor are drug cartel hitmen — the biggest culprits of Mexico's violence — the main focus of pretrial detention, Rosales said. About 30% of those jailed pending trial are charged with home robberies, about 20% for domestic violence and 10% for low-level drug sales or possession.
Sen. Álvarez Icaza calls mandatory pretrial detention “punitive populism,” designed to divert attention from the government's failure to stop violent crime.
López Obrador has been unable to reduce Mexico’s sky-high homicide rate, but counters that holding more people in prison is a sign of success.
Álvarez Icaza calls it “an act of desperation, meant to answer the public’s legitimate concern with public safety. They think they’re solving the problem, but they’re making it worse ... because when these people get out of prison, they are going to be worse off.”
The president says he will respect the Supreme Court’s ruling whatever it is, but he has publicly pressured the court in a way no previous administration has before.
Mexico’s prison population has risen by about 30% since López Obrador expanded the number of “no-bail” offenses in 2019. Being put into Mexican prisons, which are overcrowded, underfunded and controlled by gangs, can be hell for those on pretrial detention, who often enter with no prison smarts or gang connections.
“Everything costs money” for the prisoners due to bribes and extorsion, Álvarez Icaza said. “Visits cost money, food costs money.... Sometimes you even have to pay protection money in order not to get killed. For every visit, you have to pay the guard.”
That has led an increasing number of suspects to opt for some form of plea bargain, known in Mexico as a “shortened trial,” in which they plead guilty. Rosales said research shows as many as 85% of cases that do yield convictions now are the result of such plea bargains.
“In the real world," Rosales said, "when detention means you are immediately imprisoned, people are going to look for a solution, a way out,” even if that means pleading guilty to a crime they didn't commit.