Criminal Justice System
Criminal justice requires a clear definition of all legal terms and a proper understanding of the social challenges facing the state. The US and Mexico are the two countries with different economic and social development, but those factors are able to increase, but not to decrease the rates of crime radically. Nevertheless, the Mexican criminal reforms 2008-2016 gave a chance to enclose the practical implementation of the US standards. The paper analyzes the common and different aspects of the US and Mexican crime systems and demonstrates that the Mexican legislature is too severe and corrupted to achieve the American level.
Measure of Crime
The American Bureau of Investigation conducts the Uniform Crime Report, which contains information about the local crimes during the defined period. The benefit of this kind of measure is that it allows analyzing the statistical data at the local level and figure out the legal or police omissions in a small area. People may be involved in the completion of the report, but the negative side is that some kinds of crime (like minor theft) are not always noticed. In fact, UCR is the most popular crime report in the US. The community and police cooperation programs allow us to notice and prevent crimes faster. In Mexico, according to the O’Neill McCleskey (2012), “Mexico’s 2012 National Survey on Victimization and Perception of Public Security revealed that almost 92 percent of crimes (20.5 million cases) were not reported by victims.” There is a lack of trust in the police as it is a well-known fact that the criminal world and police are financially connected.
The United States also provided the National Crime Victimization Survey, which includes monitoring of all kinds of crimes except murder. Along with determining rates of crime, it allows measuring the rates and frequency of crimes in all American locations. The Mexican survey does not provide monitoring within margin regions and the drug capital location that is why the perspective of the fast solution is not observed.
Mexican legal system is represented by the Civil Law tradition and inherited the legal manner and the justice system from the Spanish Empire. It is also impacted by Medieval and Roman law, which established the European tradition. The “two Constitutions” finally established the five basic codes: “commercial, civil, criminal, civil procedures, and criminal procedures” (Avalos, 2013).
The United States belongs to the Common Law, which means that in most of cases the participants rely on the judge’s decisions. Vice versa, the Mexican system is biased to be concentrated on the primary text of the law, and the decision of the judge takes a secondary role. The main role belongs to the arguments around one law, and it is less complicated. In the US, the law interpretation requires analysis of various cases because even one of them can establish a legal principle.
The law enforcement in Mexico consists of such entities: 1) federal – PF (the Policia Federal and the Policia Federal Ministerial); 2) state (State Judicial Police); 3) municipal (policia Municipal). It has a lack of investigative recourses but keeps the title of the most significant power to fight with a crime. The PFM and the PF are controlled by the Office of the Attorney General of the DF. They are different in the number of resources and competency (attack of the crimes or public order safety) and in practice, the largest amount of the forces is concentrated in the Border States with the highest rate of crimes.
The US law enforcement agencies are actively participating in peacekeeping in the cities, the safety of the order and infrastructure. The FBI and DEA agencies are under the jurisdiction of the Department of Justice. The American federal forces include the departments specializing in natural disasters, alcohol, drugs, illegal immigration, and tobacco prevention. The branches are divided so the productivity is higher. In the Border States, there are many different border patrols and investigation agencies. Also, the US institution of sheriffs is also responsible for the above-mentioned issues.
The United States and Mexican criminal procedures are based on the Constitution and the state/federal law codex. The law enforcement procedure requires the officers to report about the crimes in their area. The US police programs are made for strong co-work with civil society, unlike in Mexico, where the police in most cases co-works with the crime business. The investigation, expertise, and interviewing the witnesses are compulsory procedures before making the report about the case. Each party has a right to appeal to the court of the higher instance in case the verdict was not satisfying. If the court found the new circumstances that can change/direct the events in the case, it is compulsory to continue the investigation and add corrections.
After that, if the legal facilities consider the evidence strong (there are legal criteria), the officers may arrest the suspect. The judge decides whether to imprison or release the accused (on recognizance). The grand jury commits an observational role in a court and it makes an impact on the final decision in case there is no enough evidence. After that, if a person pleads guilty (or no contest, which means he/she takes the penalty without admitting fault), there is no trial. In another case, the judge establishes the date of sentencing and further sanctions.
In both systems, the prosecution facility reviews the packet of evidence and makes decisions on whether to drop the case or file charges. It is important that the prosecutor during the entire case until sentencing represents not the victim, but the state. His competency includes representation of the evidence in the court. The prosecutor recommends the conditions of punishment, including a plea bargain and probation. He/she represents the interests of the state during the investigation while the interests of the victim are represented by his/her own lawyer.
Courts and the Legal Profession
According to Hagan (2007), the American criminal justice system consists of three components: “the police, the courts, and corrections” (p. 461). Speaking about the courts, the American system represents the so-called common law, which means the execution on the basis of previous experience, the precedence. After the person is arrested, the prosecutor’s commitment decides whether the case must be dropped or prosecuted. The dates of bail are decided by the judge both in the US and Mexico. The same is in case it is decided to make a prosecution, the prosecutor makes a decision on charges, and when the fault is proved, the judge defines the amount of penalty and sentencing. The jury plays the role of additional observer and executor. The American legal system includes two parts: the state courts and the federal courts.
The political and constitutional organization of the US is built on federalization that is why each state has its own court system. Hagan (2007) mentions three levels of courts: “trial courts of limited jurisdiction, trial courts of general jurisdiction and appellate courts (often two levels)” (p. 466). The names and the power of jurisdiction of each kind of the courts are defined separately in every state that is why the total generalization of them is approximate.
According to the American Civil Liberties Union (n.d.), the 4th Amendment guarantees “the right to freedom from unreasonable search and seizures” (n. p.). Hence, the Bill of Rights and the American Constitution guarantee recognition and respect for the rights of the accused. Overall, the courts represent the competitive principle of the argumentation. The defense attorney (advocate) and the prosecutor defend the interests of their clients according to the legal agreement between them. The attorney defender represents the interests of the accused, and the prosecutor is the representative of the victim. The right of “Amparo (constitutional rights) is under the jurisdiction of the twelve collegiate circuit courts (each of them has three magistrates)” (American Bar Association, 2012, p. 1). The appeals are the jurisdiction of the unitary circuit courts (there are nine magistrates, one per each court). The judiciary system of the state includes the courts of the first instance, the police courts with a justice of the peace, and the state supreme courts. Hagan (2007) mentioned that in the US, “There are 17,000 state and local courts…94 federal district courts and 13 U. S. Courts of Appeal in addition to the Supreme Court” (p. 464). Thus, both countries have similar conception of the court system, but there are differences in the jurisdictional details, judges, and territorial status.
Speaking about the legal profession, Mexico and the US co-operate within the Bar Association Rule of Law Initiative. In 2011, this organization became a tool for beginning the “Legal Profession Reform Index” (American Bar Association, 2012, p. 1). This facility is a key instrument for the increase of the professional level of the Mexican lawyers (through training, schools, exchanges, practice, extracurricular activities, etc.). Along with that, the Mexican legislature recognizes only one Office Bar Association, meaning that the net of them will not work properly. Nevertheless, this unique association with its departments all over Mexico is still not functioning only in the capital. In other cases, the small not-officially-recognized associations became a source of corruption because the criminals and politicians make a deal.
A popular practice in Mexico is an ex parte conversation with the judge who will lead the case. The law does not allow doing this, but most of the cases are learned in this way so during the trial the judge does not really listen to the parties. Nevertheless, over the last ten years, Mexican programs and education made the increase of professional lawyers possible. According to the American Bar Association (2012), “Many prosecutor’s offices and courts have set up alternative justice centers…, the lawyers do not recommend them, ostensibly out of fear it will reduce their incomes” (p. 3).
Overall, the Mexican legal profession includes: 1) prosecutor (works in one of thirty-three General Attorney Offices); 2) public defender (similarly to the prosecutor, it requires licensing and based on political nature); 3) judge; 4) public notaries and 5) Abogados (they have got a Bachelor’s degree in law and “obtained their c?dula in accordance with their state’s respective LEP” (American Bar Association, 2012, p. 8). Comparing to Mexico, the American Bar Association has more influence and is better developed. In addition, the pro bono defense for the poor in the US is better organized in the margins states by the legal aid agencies and the public defender agencies.
According to Johnstone (2008), “The ABA Model Rules of Professional Conduct (1980’s) are proposals to the courts of each state and the federal government as to what rules of professional responsibility the courts should adopt the law” (p. 752). In other words, this is a guideline and consulting service for the courts of how to behave, what to change and modify. Technically, the US legal profession also includes prosecutors, public defenders, judges, public notaries, and additional facilities for monitoring and legal evaluation.
In contrast to Mexico, the American system is more flexible and socialized; the Mexican defense has a deep gap between the rich and poor people. Also, the US has better organized definition of the “practice of law”, which says: “The practice of law is the application of legal principles and judgment with regard to the circumstances or objectives of another entity or person(s) which require the knowledge and skill of a person trained in the law” (American Bar Association, 2012, p. 5). Hence, the American and Mexican jurisdictions of the legal professions are similar, but the regulatory tools and socialization are better implemented in the US.
The probation, imprisonment, and parole contain the American correction system. According to Hagan (2007), “With a record number of over two million in prisons and jails, the United States surpassed Russia to have the largest number of people in jail, in total numbers as well as per capita, in the world” (p. 468). In fact, the mandatory sentencing and building new jails became the basis of the US correction system. Nevertheless, the high rate of prison facilities causes large budget spending and overcrowding in prisons.
The criminal justice system of the US has tougher drug laws, which have a strong impact on the national and local levels. Mostly, the American, African, and Mexican males under age twenty-five belong to the drug business that is why they stay in prison and do not get an education. Along with that, the American national health insurance does not include all citizens and, according to Hagan (2007), “An aging prison population promises to add to mounting costs in this regard. Despite the growth in prison populations, services provided have not kept pace” (p. 469). The close of the mental treatment programs means the death of thousands in prisons. One of the issues in the American criminal justice that provokes numerous discussions is the plea bargain. This procedure allows the accused to confess to committing the crime and get less penalty or sentencing. Nevertheless, the practice demonstrates the corruption component in this system; hence, the quality of the court procedures falls. Sometimes the recognition of prosecution mistake becomes a challenge for the reputation, which is why the court makes pressure on the accused making him choose between imprisonment and the plea bargain.
The house arrest, electronic monitoring, boot camps, and parole are the jail alternatives for a not very serious crime. The federal courts have the competency to choose the measures of punishment, but a shortened drug treatment, as well as educational and vocational programs in many cases, undermine the positive effect of those corrections. In Mexico, the prisons are called Cereso, which means the Center for Social Adaptation.
The system demands serious penitentiary reforms as the lack of control and weak security system converted these centers into narco and human trafficking cartels. The problem is caused by absolutely identical reasons as in the US: overcrowded jails and lack of monitoring. Mexican justice is more severe than the American one, and including the level of crimes and total poverty of the nation, the crime prosperity continues even injustice. The second challenge is corruption which is the reason for increasing crimes and rude human rights violations. Hence, the correction system which is similar to the US must be reformed to implement the real purpose of the specific facilities.
Terrorism and Organized Crime
Terrorism and organized crime are challenging issues in neighbor countries. From the legal position, it is complicated to conceptualize and classify the organized crime and terrorism. Nevertheless, both Mexico and the US joined the UN programs on the prevention of the terrorist attacks. After the September 11 attacks, the US increased the security measures and made the migration control more severe. In contrast, Mexico has less risk of being attacked by terrorists, but organized crime is the main problem in the country.
The US approved the Strategy to Combat Transnational Organized Crime, which belongs to the jurisdiction of the state where the crime was committed. The Mexican analog is the National Civil Protection System. Also, annual training and police monitoring, modern security and investigation system allow controlling the situation. Nevertheless, the US has a higher risk as a country with many enemies, while organized crime is a prerogative of the Mexican corrupted system. From the legal position, both crimes are longer investigated (especially if extradition is required), but they have higher rates of publicity.
WIPO (2012) proclaims the principle of “division and separation of the investigation and judgment functions during the juvenile trial” (article 6). Similar to the American system, it guarantees equal opportunities for defense in the trial. Both the US and Mexico support the fact that the judge has no right to precede an investigation, prosecution, and accusation, but his/her competency is decisions about the law and evidence in the trial. In Mexico, the Law of Justice for Adolescents became a reform that is why it has many common issues with US juvenile justice.
The Law gives the investigation competency to the fiscal prosecutor. Both in the US and Mexico, the juvenile crime system assures the right for impartiality during the court process and respect of adolescent rights. However, in the Mexican accusatory system (in opposition to the older inquisitional jurisdiction), the fiscal prosecutor controls the investigation, after that “the instruction, trial and application of measures” follows (Armenta & Martinez, 2014, p. 584).
The phase of instruction includes the identification of all participants of the concrete case, the circumstances of the criminal act/conflict and the previous diligence. Comparable to the American juvenile trial and investigation, the Mexican challenge is in serious lack of competent defenders who could provide the factual equality of the trial defense. Along with that, the US juvenile justice needs serious reforms in the sphere of crime correction. The rate of the prison rapes and physical violence is high in both countries, but technically the US has a faster reaction to such challenges. That is why the inner order of imprisonment must be better controlled (for example, time limitations on the staff members’ presence in the juveniles’ bathroom, etc.). Those problems have a direct connection with the juvenile justice systems in both countries in general and avoidance of them undermines the entire purpose of the criminal legislation. In theory, both Mexico and the US implement the most popular world standards in the juvenile system (with some differences in the European and Eastern European tendencies). In fact, the practical procedure of implementation is burdened by corruption and neglecting the human factors in the system.
An effective criminal legal system requires complex reformation of the state, including reduction of corruption and socialization of facilities. Comparing the US and Mexican justice systems, it is obvious that they are similar in many aspects, but still, the Mexican justice is less flexible and democratic. Lawfulness is hindered by inner problems such as total corruption and criminalization of the authority. Also, American criminal justice must be improved to reduce violations, especially among adolescents.