Prisons in Mexico: What for?

PRISONS IN MEXICO: What for?

* Translation into English has been sponsored by the Center for U.S. Mexican Studies at UCSD.

2013 México Evalúa, Centro de Análisis de Políticas Públicas.

Paper written by Leslie Solís, Néstor de Buen and Sandra Ley, based on information from the report made for México Evalúa by Guillermo Zepeda Lecuona, with the assistance of Lizeth Gutiérrez, Cynthia Zepeda Lecuona and Sofía Lee (this document is available on www.mexicoevalua.org).

The authors would like to thank Ana Laura Magaloni for her guidance for structuring the document; Edna Jaime, Marco Antonio Fernández and Paola Cicero for their observations; Ana Laura Jaso for her suggestions; as well as José Tapia and Yazmín Pérez Áviles for help designing the report.

The authors would like to thank the Center of US-Mexican Studies at UC San Diego for the translation of the document.

1

Prisons in Mexico: What for?

Table of Contents

México Evalúa 2013.

This is a summarized version of the original document published in Spanish.

2 Foreword 4 Letter from the Director 6 Executive summary 10 I. INTRODUCTION 10 a. What purpose should prisons serve?

11 b. Mexico: What purpose should prisons serve,

and what purpose do they actually serve?

13 c. Purpose of the report 14 II. THE IDEAL PRINCIPLES BEHIND PRISON 14 a. The theory and history behind prison 15 b. The constitutional rationale of prison in Mexico 16 c. Human rights and prison 17 III. THE USE AND ABUSE OF PRISON

IN MEXICO 17 a. Prison as punishment 20 b. The use of prison for pretrial detention 23 IV. THE CRIMES INMATES ARE IN

PRISON FOR 23 a. Distribution of crimes by type 24 b. What types of crimes are inmates in prison for?

26 c. Length of sentences 27 V. THE CONSEQUENCES OF THE OVERUSE

OF PRISON IN MEXICO 27 a. Overpopulation and overcrowding 31 b. Deterioration of services 34 c. Inability to govern prisons 36 d. Vulnerability of human rights 39 VI. THE COST OF THE PREVALENCE OF USING

PRISON AS PUNISHMENT 39 a. Social cost 41 b. Monetary cost 42 VII. HOW CAN THE WAY PRISONS ARE USED

BE TRANSFORMED? 42 a. Public policy recommendations on

how to transform the use of prison in Mexico 43 b. The New Adversarial Criminal Justice System 45 c. The European model versus the North

American model 46 VIII. CONCLUSIONS 47 Acronyms

2

Prisons in Mexico: What for?

Foreword

By David A. Shirk *

Incarceration is generally accepted in most societies as a reasonable and appropriate method for redressing criminal behavior, controlling those individuals who break the law, and discouraging further crime.

Yet, the widespread use of incarceration as a form of punishment is a very modern phenomenon, and one that does not receive the attention or scrutiny that it merits. Too often, prisons are viewed and utilized as the social equivalent of a landfill: human trash dumps where unwanted elements are dispatched to keep life safe and tidy. For many reasons, this is a dangerous outlook, and it explains a great deal about why crime remains a persistent problem despite the widespread modern use of incarceration as a tool to combat it.

In theory, incarceration is meant in most societies to achieve “justice” by punishing the harms caused by crime, to protect society from further harm from crime, and to correct and prevent future criminal behavior. In practice, it is not clear that incarceration achieves any of these goals. While incarceration is clearly a form of punishment—and, arguably, the deprivation of liberty is one of the most severe imaginable—it is not clear that it serves as a just or appropriate punishment to address the harms caused by crime. No amount of time in prison makes up for a murder; yet, at the same time, the value of a stolen object cannot be measured against a month or a year of a person’s life, either. In short, it is almost impossible to say that the punishment of incarceration fits the crime it is meant to address.

The role that prisons play in protecting society from further harm is also questionable, insofar as most inmates that enter into the prison system are bound to return to society at some point upon completing their sentence. This, of course, is the central question regarding incarceration: in practice, does prison serve as an effective tool for rehabilitation or at least deterrence of further crime. While there are some exceptional institutions and practices for making incarceration work, the empirical evidence does not weigh very heavily in favor of using prisons to fulfill any of the three functions described above. In many prisons around the world, the internal living environment and practices within prisons—which often serve as “institutions of higher learning” where criminal behaviors and networks are honed—often encourage further criminal behavior either within the prison or upon release. The monotony and despair that accompanies incarceration leads to insubordination, drug abuse, fighting, and other maladaptive behaviors. The often dehumanizing treatment of inmates within the prisons reinforces anti-social attitudes and behaviors, teaching them that there is no reason to abide by a social contract, since life is truly nasty, brutish, and short. * Visiting Professor at the Center

for U.S.-Mexican Studies, UC San Diego

On all of these points, Mexico is not alone in the problems it has within its prison system. Yet, in recent years, Mexico’s prisons have been facing serious and mounting problems.

3

Prisons in Mexico: What for?

The country’s incarcerated population doubled in the 1990s and grew even more dramatically over the last decade, amid rising arrests targeting rampant forms of common and organized crime. Counter-drug efforts in Mexico have become especially intense since the early 2000s, with a dramatic increase in the number of drug related arrests under the administration of Mexican President Felipe Calderón (2006-12). During Calderón’s term, drug arrests soared to over 30,000 annually, twice the annual average of roughly 14,000 arrests during previous administration of Vicente Fox (2000-2006). In this sense, Mexico has experienced a similar trend to that observed in the United States during the 1980s and 1990s, when tougher incarceration penalties introduced for drug related offenses brought a dramatic increase in the incarcerated population.

Mexico has historically described to the idea of prisons as centers for social rehabilitation, hence the common use of the term Center for Social Re-adaptation (Centro de Readaptación Social, CERESO). However, in practice there is little foundation for successful social rehabilitation in Mexican prisons. The growing number of prisoners in Mexico has exacerbated long-standing problems of prison overcrowding that are common throughout the region.

Moreover, prisons are not well managed to control for the types of populations that are housed under the same roof. Article 18 of the Mexican constitution states there should be separate pretrial detention facilities for those who have not yet been sentenced for a crime versus with those who are sentenced criminals.However, inmates awaiting their sentence and those already sentenced are often mixed together. The mixing of inmates can have serious implications as inmates with various risk levels and criminal affiliations are combined.

Under these circumstances, Mexico’s prisons have also faced significant challenges regarding corruption, breaches by organized crime, and internal security.

Coupled with these issues are the low levels of overall law enforcement professionalization and a chronic lack of resources that prevail in the criminal justice-sector in Mexico. Prison guards are often both too abusive

toward those prisoners that they can control or too easily swayed by the corrupting influence of prisoners who can control them. Though there have been reforms, professionalization efforts, and investment in new and better facilities, major problems remain within Mexico’s prisons that present serious public security concerns.

While many of the problems that Mexico’s roughly 420 prisons face are shared at all levels and across all jurisdictions, this study shows that there is significant variation in Mexico’s 31 states. There are ten facilities at the federal level and another ten in the Federal District, but Mexico’s states have direct jurisdiction over three quarters of the country’s prisons, and indirect supervision of most of the remaining prisons operated at the local level. Thus, Mexico is not merely in need of prison reform, but broad based effort to evaluate the varied problems that occur within the prison system in different states and localities.

Despite a dire need for information and careful analysis on this topic, there have been few serious studies to examine these problems in detail. Careful monitoring and greater external scrutiny are needed to ensure that prison practices in Mexico can be improved. In this sense, México Evalúa and the authors of this study have made an extremely important contribution by compiling and analyzing the available data on Mexico’s prisons. This report constitutes a landmark study that will play an important role in current discussions about prisons and public security in Mexico, and in establishing a benchmark for future policy evaluation. Work of this nature cannot stop here, however. Despite pioneering work that has been done by the Center for Research and Teaching of Economics (CIDE) to survey prisoners, we still know remarkably little about how effective Mexico’s prisons are or what happens after prison.

We also have little available information and analysis to evaluate how alternatives to prison—particularly, through Mexico’s ongoing criminal justice reforms that emphasize mediation and other alternative sentencing mechanisms—can help to avoid many of the problems that are cited in this report.

4

Prisons in Mexico: What for?

Letter from the Director

The Mexican penitentiary system is in crisis and yet the issue is not being addressed, much less solved.

The last administration concentrated on expanding the capacity of the federal prison system. More cells were built for more inmates, without thinking about an essential question: Prison, what for? And for whom?

This report hopes to provoke discussion of these questions. The time is ripe.

There is a new administration and it must define its response to the issue. It has two options. One is to continue with the crime-fighting and penitentiary policies of recent years; the second is to stop and think about how we are using prison, and what the consequences of that policy are.

This study offers abundant and well-organized evidence about some of the effects of Mexico’s intensive use of prisons. If we look at these data objectively, we will realize that as a society and as a nation, we have been shooting ourselves in the foot.

We use prison intensively and irrationally. In our penal codes, 95 percent of crimes call for prison terms. In reality, alternative punishments to prison do not exist because neither the mechanisms nor the infrastructure to make them work exist. With public opinion inflamed by crime, we insist on prison as a punishment that serves as a public example, no matter the offense. Nevertheless, in the case of minor and nonviolent crimes, other types of penalties could be more effective and less onerous in social and economic terms.

Mexican prisons in their present state are places that tend to produce more criminality. This is not only because of the overcrowding present in many of them, but also because inmates of varying degrees of dangerousness are placed together. Mexican prisons at the present time do not reintegrate or rehabilitate; rather, they ruin lives. A stay in prison, however brief, marks a person for life. While more than 60 percent of the prison population has short stays of less than three years for non-serious, nonviolent crimes, their offenses have generated a forceful, hard-line response from the Mexican state. In the background of these disproportionate reactions are the penal codes of various states that give theft the same punishment as murder. This is in addition to the thousands of prisoners who, even though they have not been convicted or sentenced and do not represent any risk to society, are deprived of their freedom.

We insist on the intensive use of prison when there are penitentiary centers where inmates must take turns to be able to sleep. What are we seeking from prison: justice or retribution?

5

Prisons in Mexico: What for?

In spite of what has been outlined, we are not moving away from our positions. Public opinion continues to be disposed toward longer sentences, and imprisoning more people. Neither the evidence of what happens in our penitentiaries nor the events of our streets is sufficient to cause a change of opinion.

Prisons in Mexico receive what is processed through our system of justice.

There will be no way to transform them if a parallel change does not take place in our penal codes and in the criminal justice system. This study examines this intersection and the positive signals concerning prison numbers that are resulting from the operation of Mexico’s new criminal justice system.

Prisons can be transformed if there is leadership and a plan to do so.

This subject requires determination, conviction, and, of course, a good understanding of the problem. Hopefully, this administration will fully explore the subject and meet its promise of changing the paradigm in matters of public safety and justice.

It only remains for me to recognize the effort of the researchers and friends of Mexico Evalúa who worked on or contributed to this project: Leslie Solís and Néstor de Buen of this organization, and Sandra Ley, who got involved for the pleasure of helping out with subjects that inspire her. To Marco Fernandez, whose supervision of this project was part of his inauguration as director of research of this institution. Of course, to my friend Guillermo Zepeda; information, arguments, figures, and tables were used from a report he did for México Evalúa. And to Ana Magaloni, who provoked us with a question that drills deep: Prison, what for?

Edna Jaime Treviño Director General

6

Prisons in Mexico: What for?

Executive Summary

The purpose of the penitentiary system in Mexico, as stated in Article 18 of the Constitution, is to reintegrate convicts into society. This should be accomplished through respect for human rights, work, self-education, health, and sport. Yet, far from being a form of punishment reserved for those who committed serious crimes, prison has become, in large part, a place to house people accused of petty crimes or those awaiting trial or sentencing. Instead of being places working to reintegrate lawbreakers into society, Mexican prisons are overcrowded settings where human rights are not respected and violence prevails.

This report examines the reality of Mexican prisons and strongly questions their purpose and utility in their current state of operation. The significant rise in violence and decline in public safety in the last few years have created a demand for justice and social peace. As a result of rising criminality and celebrated cases of crime bosses and politicians that suggest impunity, the temptation to use prison as an instrument of vengeance has grown; this shift in public opinion is understandable, to an extent. Nevertheless, the desire for retributive justice is causing a shift away from the ideals of the prison system and from the collective priorities of society. The precarious state of Mexican prisons forces us to ask whether their work to facilitate reintegration into society has been effective and whether it makes sense for incarceration to be the primary form of punishment for practically every crime committed in Mexico.

This report underlines the following conclusions: 1. In theory, the prison system can meet

various objectives According to Jeremy Bentham (1780), prisons have three basic functions: incapacitation, rehabilitation, and deterrence. Incapacitation keeps felons locked up, preventing them from committing more offenses.

Rehabilitation focuses on eliminating the desire to commit crimes. Finally, deterrence seeks to use the threat of punishment to keep the population at large, including ex-convicts, from breaking the law.

In Mexico, the constitutional rationale for the prison system has changed throughout history. From 1917 to 1965 its purpose was the “regeneration” of the offender.

From 1965 to 2008 the goal was the “social readjustment of the criminal.” As a result of the June 2008 reform to Article 18 of the Constitution, the purpose has become the “convict’s reintegration into society,” so that those who leave prison lose their desire to commit crimes again.

Moreover, a 2011 constitutional reform incorporated respect for human rights as a basis of the penal system.

2. In Mexico, the penitentiary system has been abused; other types of punishments are rarely seen In 2011, 96.4 percent of convictions resulted in prison sentences. Only 3.6 percent of sentences called for alternative forms of punishment such as fines or restitution. Furthermore, no clear distinction is made between minor and serious offenses; those who commit serious crimes and those who commit petty ones are given similar sentences. In some states, this situation is taken to the point of absurdity; their penal codes call for those convicted to receive the same sentence, no matter whether the crime was a nonviolent theft or a first-degree murder with no extenuating circumstances.

In addition, 58.8 percent of inmates serve prison sentences of less than three years. This means that the majority of people in prison have had their freedom taken away for having committed crimes that were neither violent nor serious. This figure also suggests that the state’s ability to prosecute crimes is low and limited to the weakest links of the criminal chain. In four states, more than 75 percent of the sentences are for less than three years: Aguascalientes (83.2), Baja California (79.9), Guanajuato (79.3), and Michoacán (78.1). In sum, imprisonment in Mexico is overused as a means of punishment while less costly and more appropriate alternatives are disregarded.

3. A high percentage of pretrial detainees exist As of January 2013, 41.3 percent of all detainees in Mexico had not been tried or sentenced. This means that thousands

7

Prisons in Mexico: What for?

of people have been deprived of their right to attend their judicial proceedings as free individuals. The consequences of this are many. On one hand, it causes a major prison overpopulation problem. On the other hand, pretrial detainees are forced to live alongside convicts and other suspects, generating important criminogenic effects such as recidivism and an inefficient reintegration process.

There are significant differences at the state level: More than 60 percent of those confined in Baja California Sur, Durango, Oaxaca, and Quintana Roo have not been tried or sentenced. Mexico City, at under 20 percent, is at the opposite extreme.

4. Prison living conditions, far from facilitating the reintegration of convicts into society, likely cause criminogenic effects such as recidivism instead This analysis also shows how there are 242,754 inmates in Mexican prisons; the prisons, however, were designed to have a maximum population of 195,278. That puts overcrowding at 124.3 percent of capacity. States and entities with the highest levels of overcrowding are: Nayarit (188.6 percent of capacity), Mexico City (184.7 percent), Jalisco (176.1 percent), and the State of Mexico (170.5 percent).

Some prisons have overcrowding of more than 400 percent of capacity; the district jail in Tepeaca, Puebla, houses 266 inmates in a space designed for 46.

Such overcrowding is contrary to the Standard Minimum Rules for the Treatment of Prisoners of the United Nations. In addition to being considered cruel, overcrowding facilitates the transmission of numerous diseases, thus making it a possible health risk.

Similarly, according to the Incarcerated Population Surveys by the Center for Research and Teaching of Economics (CIDE), inmates face shortages of food, drinking water, and everyday items, and the quality of food and medical care is bad. The inmates’ communications with family members is not good either: In 2012, 80.3 percent of inmates in federal prisons said they never get visitors.

This situation, coupled with a lack of well-trained prison staff as well as a staff shortage, has allowed criminal groups within the prisons to create a system of governance to essentially run them, causing inmates to see a return of violence and intimidation to their daily lives.1 Without a doubt, these conditions make it difficult to generate effective social reintegration programs. As a result, after serving their sentences, many return to a life of crime.

According to official statistics, recidivism is 15.5 percent. However, this figure likely underestimates recidivism, as not all crimes are investigated or punished.

Also, there is wide variation at the state level in regard to recidivism: While in Mexico City 35.2 percent of those arrested are repeat offenders, in Campeche only 6.5 percent of detainees had been prosecuted for a previous offense.

1 Skarbek, David. “Governance and Prison Gangs.� American Political Science Review 105.4

(Nov. 2011): 702-716.

8

Prisons in Mexico: What for?

5. Convicts’ human rights are vulnerable and constantly violated The National Commission on Human Rights (CNDH), through its National Diagnosis for Penitentiary Supervision (DNSP), measures the main areas related to the human rights of those incarcerated in Mexico’s prisons. These items include the following: physical and moral integrity of the inmates, decent living conditions, governance inside prisons, processes of social reintegration, as well as the special needs of certain inmates. In 2011, the national evaluation was 6.41 on a scale from zero to ten, lower than the grade recorded in the previous three years.

This means that there is still much to be done in order to guarantee inmates’ rights. The states with the lowest scores were Nayarit (4.57), Guerrero (5.13), Oaxaca (5.15), and Coahuila (5.21), while the states with highest scores were Aguascalientes (8.47), Guanajuato (7.89), Tlaxcala (7.80), and Querétaro (7.79).

In order to improve this situation, in recent years, the CNDH has issued several recommendations regarding the prison system. However, they are not binding and, unfortunately, they have had little impact on prisoners’ living conditions.

6. Prison is costly in both social and economic terms Even short stays in prison have important criminogenic effects. Time in prison leaves a social stigma, making it hard for former inmates to find a job or have a full social life. This situation, along with the exposure to violence and corruption networks during the period of imprisonment, short as it might be, increases the risk that those released will wind up involved in illegal or criminal activities again.

Furthermore, imprisonment not only affects the inmate but also his or her family.

According to organizations such as the Quaker United Nations Office (QUNO), “The imprisonment of a mother or a father affects their children, usually in a negative way.”

2 In this manner, children become the invisible and forgotten victims of incarceration.

Also, as the imprisoned population continues to grow, the cost of running prisons increases. The daily cost per inmate is estimated to be 137 pesos (approximately U.S. $10.65). For the year 2012, the National Institute of Geography and Statistics (INEGI) reported that states allocated 8.658 billion pesos (about U.S. $673 million) for maintaining prisons.

2 Quaker United Nations Office.

“The impact of parental imprisonment on children.”

Web. 2 July 2013.

<http://quno.org/geneva/pdf/ humanrights/women-in-prison/ ImpactParentalImprisonment200704-English.pdf>.

These figures should lead to a serious consideration of alternatives to imprisonment, particularly for minor offenses. It is not worth incarcerating individuals who commit minor offenses nor pay the price to keep them in prison if the treatment they get there does not result in their full reintegration into society—or if their time in prison winds up having negative social consequences for the inmate, his or her family, and society as a whole. Therefore, authorities should consider policy alternatives to incarceration according to the type of crime and its seriousness.

Options such as fines and community service should be explored in order to avoid prison overcrowding and truly achieve the reintegration of the convict into society.

9

Prisons in Mexico: What for?

7. Is it possible to transform how prisons are used? Yes Undeniably, one option to end overcrowding in Mexican prisons is to build more jails. However, what is really needed is a true transformation of the prison system and the way we use it. A reformed system should include the following elements: i. Eliminating the use of prison as a punishment for minor and nonviolent crimes ii. Development of alternatives, both legal and organizational, to prison iii. The prudent use of pretrial detention iv. Improving social reintegration programs and techniques, and making them part of the institutional structure v. Strengthening the national penitentiary systemâ&#x20AC;&#x2122;s infrastructure vi. The professionalization of administrative, technical, and custodial personnel Similarly, it is important to accelerate the pace of the penal reform, set in motion in June 2008. It is an example of a more rational use of imprisonment in Mexico. Traffic accidents, minor conflicts, and some nonviolent property crimes are being channeled to alternative forms of justice. This allows the victim to be indemnified, where agreements are made to repair harm, or conditions that must be satisfied by the accused are set. The purpose of such a system is to only bring to trial cases involving violent crimes or those in which the parties involved could not agree to an alternative resolution. This system has already been shown to be effective: Most of the states that have implemented the penal reform have significantly reduced the size of their prison populations.

*** Understanding the current state of the national penitentiary system is crucial as it is one of the components of the criminal justice system that require the most attention. The way prisons are used in Mexico is a far cry from the constitutional ideal of having the institutions work to reintegrate inmates into society. Given the current situation of violence, it is important to understand what our prisons do and what they ought to be doing. For some, the natural response is that imprisonment is the only option available to achieve justice.

However, the truth is that, given their current use and conditions, prisons fail to accomplish this task. Imprisonment should be our last resort, that is, the punishment used in cases where it is deemed that the sentenced person really represents a potential danger to society. In addition, prisons should also be a place where convicts truly get the tools to reintegrate themselves into society at the end of their sentences.

Only through a serious assessment, based on clear evidence, will it be possible to adequately address the law-and-order problems the country faces and promote the true realization of the ideals of justice that society expects.

10

Prisons in Mexico: What for?

I. Introduction

“The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilization of any country”.

-Sir Winston Churchill (1910) “No one truly knows a nation until one has been inside its jails”.

-Nelson Mandela (1994) ...

Prison is one of the most severe punishments that a person who lives in a democracy can receive. It is a punishment that implies losing, at least temporarily, the exercise of a citizen’s rights such as freedom of movement, freedom to vote and be elected, freedom to work, and freedom of association, among others. It also means an enormous restriction on one’s rights to freedom of expression, assembly, and privacy. If a democracy is a system that seeks to guarantee the freedom and equality of its citizens, prison is clearly the exception. On the other hand, prisons represent a high cost to the public purse. The money spent on them then cannot be spent on the public good in areas such as education, health, and infrastructure, among others. This requires a collective response to at least two questions: What are prisons for?

How can they be justified in a democracy?

3 Interior Ministry. National Penitentiary System Statistics.

Web. 2 July 2013.

<http://www.ssp.gob. mx/portalWebApp/ ShowBinary?nodeId=/BEA%20 Repository/365162//archivo> 4 Ibid.

5 2012 Criminal Justice Statistics, INEGI.

There are 420 penitentiaries in Mexico. They contain 242,754 inmates.3 What is the purpose of placing them there? To punish them? Of those imprisoned, 41.3 percent have not even been convicted; strictly speaking, they are still innocent.6 To rehabilitate them or reintegrate them into society? More than half the penitentiaries are overpopulated and their conditions are degrading.

To prevent and deter future crimes? At the national level, recidivism is 15.5 percent, and there are states where more than 20 percent of the inmates are repeat offenders, which indicate that penitentiaries are not being successful in their work to reintegrate ex-convicts into society. This leads us to two related questions. What purpose should prisons serve? In reality, what purpose does our penitentiary system actually serve? This report seeks to answer both questions.

Following is an overview and the general context these questions form a part of, not to mention their relevance.5 a. What purpose should prisons serve?

From a theoretical point of view, prison can accomplish a variety of purposes, including prevention, rehabilitation-reintegration, incapacitation, and deterrence. Prevention refers to the incarceration of someone given a prison sentence in order to protect society from possible future crimes; it is assumed

11

Prisons in Mexico: What for?

that if the individual is not locked up, there is a high probability that he or she will commit another crime. Rehabilitation seeks to reorient and reeducate inmates so that they do not return to a life of crime after being freed. The principle behind rehabilitation is for the inmate and the state to collaborate in a process designed to improve the prisoner’s mental state6; the concept evolved to readjustment and, beginning in 2008, to reintegration, as laid out in Article 18 of the Mexican Constitution. The objective of incapacitation is to physically remove the offender from society for the long term to prevent him or her from committing another crime. Finally, deterrence refers to how putting people in prison serves as an example to others and generates incentives for others not to break the law. b. Mexico: What purpose should prisons serve, and what purpose do they actually serve?

In Mexico, the Constitution defines the reason for having prisons. Article 18 establishes the objective of the prison system is to “bring about the reintegration of convicts into society and ensure that they do not commit more crimes.” In addition, the most recent reform to this article, in 2011, incorporated respect for human rights as a basis of this system, along with work, education, health, and sport. However, the reality is that we have never sought to have prisons meet this constitutional objective. Our prison policy is better explained as one of retributive justice. The adoption of longer prison terms, of 50 or up to 70 years and even life sentences in some states,7 shows how retributive and disproportionate measures take away the possibility of felons’ reintegration into society.

From the point of view of retributive justice, the purpose of punishment is for criminals to get what “they deserve” as a consequence of their actions, independent of any benefits the punishment represents for society. It is a vindictive rationale in the main: “Whoever did it must pay the price.” This makes the objectives of prevention, rehabilitation, and reintegration irrelevant. Under this view of retributive justice, if a criminal made the victim suffer, then the sentence must also inflict suffering, so that the punishment is proportionate to the crime. From this perspective, an act of personal revenge could be a completely legitimate punishment (although not a legal one), if it is considered to be proportionate to the offense.

Nevertheless, in normative terms it is difficult to acknowledge the retributive form of criminal punishment. In principle, the state is obligated to be impartial, because it does not impose the sentence representing the victim, but rather representing society as a whole.8 Its authority comes from the consent of the governed and therefore it cannot take sides in a dispute between two people; it must be neutral and simply interpret and apply the law. In addition, in the face of other alternatives, it cannot be justified that the democratic state condemns a citizen to a sentence that implies suffering.9

6 Zimring, Franklin E., and Hawkins, Gordon. Incapacitation: Penal Confinement and the Restraint of Crime. New York and Oxford: Oxford University Press, 1995: 6-9.

7 Gómez, Enrique. “Punishment toughened for torture.” Reforma 24 Mar. 2012; Salazar, Claudia.

“Life imprisonment for kidnapping backed.” Reforma 30 Nov. 2011; Lomas, Enrique. “Life imprisonment approved in Chihuahua.” Reforma 22 Dec. 2010.

8 Brettschneider, Corey.

“The Rights of the Guilty: Punishment and Political Legitimacy.” Political Theory 35.2 (Apr. 2007): 183.

9 Hanna, Nathan. “Liberalism and the General Justifiability of Punishment.” Philosophical Studies: An International Journal for Philosophy in the Analytic Tradition 145.3 (Sept.

2009): 333-336.

Consulta Mitofsky. “Longer sentences for serious crimes.”

Web. 3 July 2013. <http:// consulta.mx/web/images/ MexicoOpina/2007/20070225_ NA_IncrementoPenaDelitos.pdf>.

12

Prisons in Mexico: What for?

In a context of increasing violence and a decline in public safety—where homicide, kidnapping, robbery and extortion have been on the rise—hard-line policies become more attractive and popular. During a law-and-order crisis like the one Mexico is living through today, prison emerges as the logical and more immediate solution.

A 2007 Consulta Mitofsky survey showed that eight out of ten Mexicans considered it necessary for life imprisonment to be a punishment for crimes such as rape, murder, baby theft, and kidnapping.10 Moreover, 75 percent of Mexicans agreed that the death penalty should be imposed for serious offenses as a measure to fight the crime sweeping the country. According to the 2010 Barometer of the Americas, 28 percent of Mexicans thought the government lacked a firm enough hand to solve the problems the nation was up against.11 Academic studies have also shown that crime victims, in particular, tend to support hard-line policies. This relationship is logical: It is perfectly natural for people who have been victimized to seek and demand justice and punishment. Nevertheless, as this report will show, in a country where the penitentiary system has major shortcomings and fundamental weaknesses, prison, in 10 Consulta Mitofsky. “Longer sentences for serious crimes.”

Web. 3 July 2013. <http://consulta.mx/web/images/ MexicoOpina/2007/20070225_NA_IncrementoPenaDelitos.pdf>.

11 The question asked was, “Do you think the government of our country lacks a firm hand, or do you think the problems can be solved with everyone’s involvement?” Report available at: <http://www.vanderbilt.edu/lapop/insights/IO880es.pdf>. Date of access 3 July 2013.

12 Fundar. “Putting people in the custody of the Prosecutor’s Office on display to the media.” Web. 2 July 2013. <http://fundar.org. mx/op/?page_id=758>.

13 Arellano, Silvia, “Calderón opens escape-proof prison in Sonora.” Milenio, 3 Oct. 2012. Web. 2 July 2013. <http://www.milenio.com/cdb/doc/noticias2011/ cda5637c29b310147f5b9d3431a80a4d>.

14 Office of the President. “Various statements in talks on security issues with political party presidents, III.” Web. 2 July 2013. <http://calderon.presidencia.gob.mx/2010/08/diversasintervenciones-en-dialogo-por-la-seguridad-con-presidentes-delos-partidos-politicos-iii/>.

15 Office of the President. “With more and better federal prisons, we are sowing the seeds of a safer Mexico.” Web. 2 July 2013. <http:// calderon.presidencia.gob.mx/2012/03/el-presidente-calderon-en-lasupervision-al-complejo-penitenciario-federal-no-3/>.

16 Office of the President. “Radio interview of Felipe Calderón with Pedro Ferriz de Con, Imagen 90.5 FM, Mexico City, 2 Sept. 2008.” Web. 2 July 2013. <http://calderon.presidencia.gob.mx/2008/09/estamosdecididos-a-dejar-al-pais-mucho-mas-seguro-presidente-calderon/> [emphasis added].

17 Office of the President. “With more and better federal prisons, we are sowing the seeds of a safer Mexico.” Web. 2 July 2013. <http://calderon.presidencia.gob.mx/2012/03/el-presidentecalderon-en-la-supervision-al-complejo-penitenciario-federal-no-3/>.

its present state, turns out to be the most costly solution.

Political discourse also has contributed to the use and perception of prison as a medium for revenge or social retribution. In the war against drug trafficking, the 20062012 administration of President Felipe Calderón publicized the capture of suspects by presenting them to the mass media before even initiating criminal proceedings against the accused. These scenarios consisted of presenting people in handcuffs next to alleged incriminating evidence such as guns and money. The use of this narrative by the state to try to show its effectiveness in the fight against crime infringed on the rights of those detained. At the same time, this kind of public show presented a false dichotomy between justice and security in the court of public opinion.12 In addition, as part of the fight against organized crime, prison has been a central axis of the federal government’s security policy. In fact, at the inauguration of the federal penitentiary center in Hermosillo, Sonora in October 2012, then-President Felipe Calderón reiterated his support for replicating the prison model: What needs to be done is to increase the number of prisons. My criterion is that if the law determines that there should be one, one thousand, ten thousand or a hundred thousand inmates, then the state must provide prison space for them to comply with the law: The amount of prison space must be adjusted to comply with the rule of law instead of adjusting the rule of law to the amount of prison space available.13 In spite of recognizing that prisons in Mexico “don’t readjust or rehabilitate”14 while examining renovations at Federal Penitentiary Complex No. 3, Calderón talked about prison as a way “of repaying, partially, the person who has suffered maltreatment as a result of a crime.”15 Similarly, the federal government understood the purpose of prisons to be that of incapacitation or preventing criminals from causing further harm—not as a way to reintegrate these people into society.

In an interview, Calderón reiterated his opinion that a kidnapper “must never get out of jail.”16 For the then-chief of the executive branch, prison was clearly an instrument for retribution. In this way, having more and more prisons would help “sow the seeds of a safer Mexico.”17

13

Prisons in Mexico: What for?

As mentioned previously, the context of high insecurity and political discourse are contributing to the proliferation of prisons and longer prison sentences.

The violence we are exposed to daily generates fear, anger, and frustration; added to that is the perception that all criminals are essentially bad or cruel people.

This brings people to see the most-punitive solutions not only as a necessary method to fight crime, but also as a just one. However, it is essential that we first evaluate whether these “solutions” are based on a logical and just reasoning, in addition to whether they are yielding the expected results. That is the aim of this document. For example, we must ask ourselves whether someone who commits a nonviolent theft deserves a prison sentence similar to one served by someone who committed murder. This report will show that this is what happens as a result of some states’ laws.

and what this means in terms of adhering to the principles that ideally should govern the use of the prison. Fourth, we describe current prison conditions, which show how the ideals that the Constitution says should guide the way prisons are used are not put into practice. Next, we show evidence of the social and monetary cost of prison, with the purpose of contributing to a serious analysis on the consequences of using prison as the primary punishment.

Finally, we make some public policy recommendations — directed mainly at legislators and those in charge of the penitentiary system—and we provide a brief review of prison models in other countries as a way to reflect on the penitentiary system in Mexico; we also propose some possible avenues for the system’s improvement.

Finally, in regard to the administration of President Enrique Peña Nieto, the 2013-2018 National Development Plan has just one reference to a course of action for prisons: “To promote effective social reintegration as part of the National Penitentiary System”; this is part of Strategy 1.3.2 to promote institutional change and to strengthen the capabilities of the security forces. In various statements, President Peña Nieto has recognized that the goals of the penitentiary system are not being met, making it necessary to modernize and overhaul the system to clearly base it on rehabilitation in order to discourage the commission of new crimes.18 Nevertheless, neither a course of action nor concrete policies have been put forth or implemented. c. Purpose of the report In a context permeated by violence and growing support for longer prison terms, this report represents an effort to understand the current state of Mexican prisons and their potential to meet these kinds of public demands.

The country’s prison policy and its major pending issues are analyzed. First, we examine the ideals behind the use of prison, based on theoretical works and the principles embodied in human rights theory and the Mexican Constitution. Second, we analyze the overuse of prisons in Mexico. Third, we explore the makeup of the penitentiary population (what crimes inmates are in for)

18 See: “The federal government inaugurates the first penitentiary center of [Calderón] administration.” CNN Mexico, 14 May 2013. Web. 9 Aug. 2013. <http://mexico.cnn.com/ nacional/2013/05/14/el-gobierno-federal-inaugura-el-primercentro-penitenciario-del-sexenio>; Vargas, Rosa Elvira. “Peña Nieto urges that penitentiary system be overhauled and that inmates be rehabilitated.” La Jornada, 23 Feb. 2013. Web. 9 Aug. 2013. <http://www.jornada.unam.mx/2012/02/23/ politica/012n1pol>; Jiménez, Benito. “Peña Nieto plans to modernize Mexico’s penitentiaries.” Noticias Terra, 5 Nov. 2012.

Web. 9 Aug. 2013. <http://noticias.terra.com.mx/transicionpresidencial/pena-nieto-plantea-modernizar-los-penales-mexi canos,8ff67cc27f0da310VgnVCM5000009ccceb0aRCRD.html>; Reséndiz, Francisco. “Penitentiary system needs modernizing: EPN.” Red Política, 24 May 2012. Web. 9 Aug. 2013. <http:// www.redpolitica.mx/necesario-modernizar-el-sistemapenitenciario-epn>.

14

Prisons in Mexico: What for?

II. The Ideal Principles Behind Prison

a. The theory and history behind prison Prison is one of the instruments the state has at its disposal to punish lawbreakers.

The origins of prison precede the emergence of democratic principles and human rights. Therefore, its original intent is a far cry from the present ideals of justice and respect for the human rights. The first jails served as a means of holding those awaiting some other punishment—for example, temporary exile or corporal punishments—or trial. Although it is not known exactly when it began being used as punishment—that is, its current use—it is known that the Quakers19 were one of the first communities to use prison as punishment and to favor it over corporal punishment. Its prison model was taken up by various societies.20 Jeremy Bentham (1780) identified various goals for prisons. He proposed three specific ones: Preventing those being punished from committing further crimes (incapacitation), removing their desire to commit more crimes (rehabilitation), and causing them to be afraid to commit more crimes (deterrence). He also hoped that prison sentences would deter the rest of the population from committing crimes.21 In addition, Bentham proposed that punishments should be proportionate to the crime and be more utilitarian than not. That is, given that punishment represents harm for the person who receives it, it is justified only if a greater harm is prevented.22 19 Also known as the Religious Society of Friends. It was a dissident Christian community founded in the middle of the 17th century in England by George Fox. 20 Barnes, Harry Elmer. “The Historical Origins of the Prison System in America.” Journal of the American Institute of Criminal Law and Criminology. 12.1 (May 1921): 38.

21 Bentham, Jeremy. An Introduction to the Principles of Morals and Legislation. Oxford: Clarendon Press, 1907: 396.

22 Bentham, Jeremy.

An Introduction. 397.

23 Zimring and Hawkins.

Incapacitation: 6-9.

24 Oppenheimer, Heinrich. The Rationale Of Punishment.

London: London University Press, 1913: 240-244.

25 Hampton, Jean. “The Moral Education Theory of Punishment.” Philosophy & Public Affairs 13.3 (Summer 1984).

Later, in the 20th century, debate about prisons in the United States turned on whether they should be used for rehabilitation or incapacitation. Rehabilitation was the initial objective of the criminal justice system and predominated the thinking behind U.S. penal code reforms in the 1960s.23 In being the goal of the criminal justice system, rehabilitation had two advantages. First, if the process was successful, it would be an effective method of reducing crime, as criminals could become productive members of the society. In addition, in treating punishment not as a goal in and of itself but rather as a means of helping criminals, it turned into an enterprise consistent with humanitarian principles.24 Rehabilitation, therefore, can be seen as a form of education in which the state erects certain barriers not only to discourage certain actions but also to make people understand that such actions are morally unacceptable. This vision sees people as rational beings able to recognize the morality of certain actions and to act accordingly.25 Nevertheless, the rehabilitation idea was abandoned to a great extent in the 1970s because there was no evidence that the penitentiary system had a curative effect. In Mexico, however, rehabilitation remained a constitutional objective until 2008, when it was replaced by the idea of reintegration into society.

15

Prisons in Mexico: What for?

b. The constitutional rationale of prison in Mexico In Mexico, Articles 18 to 22 of the Constitution regulate the penitentiary system and the rights of inmates. According to the Constitution, the main objective of prison is “to achieve the reintegration of the convict into society and to ensure that he or she does not break the law again” (Article 18, paragraph 2).

The inclusion of the concept of “the reintegration of the sentenced person” is recent; it is the result of the June 2008 reform. Between 1917 and 1965 the prevailing concept was “regeneration.” Between 1965 and 2008, the purpose behind prison was the “social readjustment of the criminal.” The change from readjustment to reintegration into society has at least two implications. First, according to Miguel Sarre, eliminating the word rehabilitation is equivalent to eliminating the curative aspiration of prison; in other words, prison loses its sense of “being a therapeutic means of social control” to instead becoming a service that looks toward reintegrating the inmate into society by giving him or her access to medical care, education, and cultural and sporting activities.26 Second, the word change from “criminal” to “convict” opens the possibility that the judges’ ruling might have been wrong, and that all those who are sentenced are not necessarily guilty.

Since the publication of one of the most recent reforms in the Diario Oficial de la Federación (Official Gazette of the Federation) on June 10, 2011, respect for human rights was incorporated as a basis of the system.27 It also puts forward other areas such as work, training, education, health and sports as key ways of bringing about the sentenced person’s reintegration into society. Thus, Article 18 establishes the following: The penitentiary system will be organized on the basis of respect for human rights, work, training, education, health, and sports as means of achieving the reintegration into society of the convict and to ensure that he or she does not break the law again, seeing the benefits the law provides him or her.

26 Sarre, Miguel. Debido proceso y ejecución penal: reforma constitucional de 2008 (Due Process and Criminal Justice Enforcement: The 2008 Constitutional Reform). Mexico, 2010: 7. Web. http:// dl.dropboxusercontent.com/u/12770688/ Sarre_%20Reinserci%C3%B3n%20 social%20TSJDF%2025%20Aniversario%20 IEJ%20Oct%20%202010%20 versi%C3%B3n%20final.pdf 27 The June 20, 2011 reform. The penitentiary system will be organized on the basis of respect for human rights, work, training, education, health, and sports as means of achieving the reintegration into society of the sentenced person and to ensure that he or she does not break the law again, seeing the benefits the law provides him or her. Women will serve their sentences in separate quarters from men.

<http://www.diputados.gob. mx/LeyesBiblio/ref/dof/CPEUM_ ref_194_10jun11.pdf>.

16

Prisons in Mexico: What for?

c. Human rights and prison Beyond the theoretical purposes that prison should achieve, it is important that the creation and operation of a penitentiary system be guided by the obligations and responsibilities the state has before the society it governs, as well as by the rights of the individuals society is composed of, independent of their legal status.

Although some rights are lost as a result of prisoners’ loss of freedom, there are certain rights that must be respected in good penitentiary management.28 Otherwise, the relationships in prison—between inmates or between inmates and penitentiary staff—can easily be transformed into situations of violence and abuse, where any intent of achieving reintegration or rehabilitation stays out of reach.

Diagram 1 summarizes the human rights of people deprived of their liberties, according to international standards.

Mexico, in its standard setting, subscribes to the penitentiary model that most democracies also subscribe

to. However, our empirical analysis of Mexico’s penitentiary regime has found that we are very far from meeting the Constitution’s goals.

To correctly determine how an ideal penitentiary system should be set up, it is necessary to determine the purpose that it should meet; such a goal can vary from deterrence to rehabilitation to incapacitation. In the case of Mexico, the reintegration into society of the inmate is the main constitutional objective of the penitentiary system. In order to reach this goal, prisons must meet a minimum of standards that permit maximum achievements when it comes to reintegration and crime reduction. The following chapters analyze the present conditions of the penitentiary system in Mexico with the purpose of examining their ability to fulfill these principles and the ideal reasoning behind prisons. The evidence is not encouraging; everything indicates that we have never set out to follow the constitutional framework.

28 The nature of prison means that an inmate’s freedom of movement is restricted (Universal Declaration of Human Rights, Article 13), as is freedom of association (Article 20), the right of contact with family (Article 12), and the right to marry and found a family (Article 16), among others. See: Coyle, Andrew.

A Human Rights Approach to Prison: Management Handbook for Prison Staff, 2nd ed. London: International Centre for Prison Studies, 2009.

29 O’Donnell, Daniel. Derecho internacional de los derechos humanos: normativa, jurisprudencia y doctrina de los sistemas universal e interamericano (International Human Rights Law: Regulations, Jurisprudence, and Doctrine of Universal and Inter-American Systems). Bogotá: Colombian Office of the United Nations High Commissioner for Human Rights, 2004.

Rights of Persons Detained and Imprisoned

Diagram 1. Human rights of people deprived of their liberties Fair and non degrading treatment Separation between detained and imprisoned

Health and medical care

No isolation

Communication

No use of force

No overcrowding

Salubrity

Communicatioin with family relatives Source: Adapted from O’Donnell (2004).29

17

Prisons in Mexico: What for?

III. The Use and Abuse of Prison in Mexico

What meaning do we give prison as a form of punishment?

If crimes such as nonviolent theft are punished with sentences similar to those for first-degree murder, what is the real purpose of incarceration as a punishment?

Second, how are we using jail as a method of pretrial detention? If two of every five inmates have not been tried or sentenced30 yet remain in prison, living with repeat offenders who have committed other crimes, sometimes more serious ones, what happened to the ideal of reintegrating these people into society?

Table 1. Ratio of total prisoners to convicted inmates, 2010

a. Prison as punishment In a society hit by crime that has seen criminality and violence indicators rise, the preferred answer of the state has been to lengthen sentences, making prison the primary answer to antisocial behavior. For example, in December 2008 Puebla’s penal code was amended so that the punishment for aggravated kidnapping went from 30 years to life imprisonment. Also, Mexico state’s penal code was changed to impose life imprisonment for murder, feminicide, and rape when the victim is killed.

In Mexico, approximately 95 percent of crimes call for prison sentences. In contrast, other countries use alternative punishments to punish some crimes. Table 1 compares the total number of inmates with those who are serving prison sentences in 66 countries; the data comes from the United Nations Office on Drugs and Crime (UNODC). It shows that there are places with fewer than 0.5 prisoners for each convicted person. These include Norway, Finland, and Canada. This illustrates that prison can truly be the punishment of last resort of the criminal justice system. Finland went from having a punitive model similar to Mexico’s to one with alternative sentences, such as community service; it has one the lowest ratios of prisoners per sentenced inmates (0.16 in 2010). Of the 66 countries UNODC studied, Mexico is in eighth place; this shows how Mexico abuses prison as a punishment.

30 Interior Ministry. National Penitentiary System Statistics. Web. 2 July 2013.

*

Country

Ratio

1

Trinidad and Tobago

88.55

2

United States (2010)

25.26

3

Jamaica*

16.84

4

Chile

2.93

5

Costa Rica*

2.29

6

Argentina

1.88

7

Panama*

1.69

8

Mexico

1.54

14

Colombia

1.13

15

Nicaragua

1.00

18

Russia

0.97

35

Denmark*

0.52

36

Sweden

0.50

47

Norway*

0.27

56

Finland

0.16

59

Portugal

0.15

60

United Kingdom (Scotland)

0.14

61

The Netherlands

0.14

62

Canada**

0.13

63

Switzerland

0.13

2009 data

** 2008 data Source: Adapted from UNODC information, 2010.

Note 1: The information in this table comes from the statistics provided by UNODC corresponding to “convicted” and “detained” persons. “Detained”, as defined by UNODC, is the total number of persons in penal, correctional or psychiatric institutions under the administration of penitentiary authorities, excluding those detained for non-criminal offences. “Convicted” refers to the total number of persons found guilty of any criminal offence by judicial authorities and sentenced to some form of punishment.

Note 2: The Trinidad and Tobago figure may seem excessive; nevertheless, there are various possible explanations. According to the International Centre for Prison Studies, 55 percent of the prison population has not been sentenced <http://www.prisonstudies.org/info/worldbrief/wpb_country.php?country=69>.

According to a news article, some inmates can spend up to 10 years in pretrial detention. Web. (<http://www.thetobagonews.com/opinion/Prisons-a-disgraceto-Government-212640161.html>. These two factors, among others, can contribute to the ratio being so much higher than in other countries.

18

Prisons in Mexico: What for?

Part of the problem of the primacy of the use of prison in Mexican laws is that the authorities have taken the number of arrests, detentions, and jailings as a measure of the system’s effectiveness.

The premise of this policy is to maximize the two criminogenic effects of the loss of freedom: incapacitation or separation from society of a person processed or sentenced for a crime (special prevention), and the setting of an example that deters potential offenders (general prevention).

31 At the moment, 58.8 percent of sentences are for less than three years of prison. These are not for violent or serious crimes.

See Chapter IV, “The Crimes Inmates Are in Prison for.”

32 The crimes that did not result in prison sentences from local and state courts included assault and battery (39.3 percent), property damage (19.5 percent), and robbery (18.5 percent. Cf. INEGI (2012), put together using information on Pages 235 and ss.

Although the penal codes allow for a full range of alternative sentences, in practice only fines and restitution see any significant use. Other penalties such as getting residential treatment outside prison, having to perform community service work, or day release are rarely used, if not in disuse. Among the main reasons why these measures (less onerous than prison and more suitable for dealing with petty crime) have not met their potential are31 a lack of regulations for their implementation and, mainly, that the infrastructure, resources and organization to pursue them do not exist. Additionally, given the present state of public opinion supporting hardline policies—as often happens during periods of high violence and a breakdown of law and order—authorities have no incentive, or demand from the public, to use more alternative punishments.

In fact, in 2011 only 3.6 percent of the people sentenced in local and state courts were not incarcerated. These alternative sentences were divided into fines (70.7 percent), restitution (5.1 percent), or a combination of both (24.2 percent).32 For federal crimes, only 0.6 percent of the punishments did not involve incarceration.

Graph 1. Sentences from local and state courts that did not involve incarceration, national totals, 2011

Restitution only

179

5.1%

Restitution and fine

849

24.2%

2,479

70.7%

Fine only

Total: 3,507 | 3.61% of all convictions

Source: Criminal Justice Statistics, INEGI, 2011.

19

Prisons in Mexico: What for?

A comparison of prison sentences for nonviolent theft and firstdegree murder shows the simplistic nature of using prison as the primary instrument to fight common crime. Graph 2 illustrates the variety of prison sentences for nonviolent theft in comparison with sentences for murder.

Length of prision sentences for murder

Graph 2. Prison sentences for theft versus murder, by state

Length of prision sentences for theft Overlap between theft and homicide sentence length

35 30 25 20 15 10 5

Graph 2 illustrates the use and abuse of prison in Mexico. For example, in Aguascalientes, someone who steals an amount greater than the equivalent of 300 minimum wages (Zone B) (more than 18,414 pesos, or $1,424) can receive a longer sentence than someone who committed murder. The thief can be sentenced to four to ten years, whereas the murderer can be sentenced to eight to twenty years. If this is taken to an absurd extreme, it could sometimes turn out to be better to kill someone than to steal a motorcycle, in terms of time served.

Only two Mexican states (Morelos and Yucatán) provide for alternatives to jail for nonviolent theft. In the case of Morelos, if the theft is of an amount smaller than 20 minimum wages (1,227 pesos, or $95), a sentence of 15 to 90 days of community service work can be imposed, in addition to a fine of 10 to 50 days of minimum wages. In Yucatán, theft of an amount smaller than 100 minimum wages (6,138 pesos, or $475), the penal code calls for 20 to 50 days of community service, in addition to the possibility of a prison term of six months to two years or of paying a fine between 20 and 50 days of minimum wages).

Yucatán

Zacatecas

Veracruz

Tlaxcala

Tamaulipas

Tabasco

Sonora

Sinaloa

San Luis Potosí

Quintana Roo

Puebla

Querétaro

Oaxaca

Nayarit

Nuevo León

Morelos

Michoacán

Jalisco

Mexico

Hidalgo

Guerrero

Guanajuato

Durango

Colima

Source: Adapted from state penal codes.

Federal District

Coahuila

Chihuahua

Chiapas

Campeche

Baja California Sur

Baja California

Aguascalientes

0

20

Prisons in Mexico: What for?

Table 2. International comparison of the percentage of the prison population that has not been sentenced; years vary Ranking

b) The use of prison for pretrial detention In line with the policy giving primacy to prison as a punishment, many restrictions have been imposed on allowing the accused to be released on bail or on their own recognizance while awaiting trial or sentencing.

This means that thousands of people who have the right to be free during this time instead find themselves behind bars.

A number of Latin American countries have a high percentage of their prison population that has not been sentenced; the highest number is 83.6 percent in Bolivia.

As can be seen in Table 2, in Mexico, the number of inmates that have not been sentenced is 41.3 percent.

In Mexico, the numbers of those in pretrial detention in federal and state prisons have been on the rise. As can be seen in Graph 3, this figure doubled between 1994 (when it was at its lowest) and 2004, going from around 41,400 to 81,900. Since then, the number of inmates who have not been sentenced has risen, reaching their highest level in January 2013 of 100,304, which represents 41.3 percent of the total prison population. Of these, 75,413 are under state jurisdiction and the rest are in federal facilities. In state and local prisons, the percentage is 39 percent, while it is 50.2 percent in federal facilities.33

33 Interior Ministry. National Penitentiary System Statistics.

Web. 2 July 2013.

Country

Inmates who have not been sentenced

1

San Marino (2011)a

0.0%

2

Tuvalu (2012)b

0.0%

3

Laos (2004)

1.0%

8

Taiwan (2013)

6.3%

15

Singapore

47

Russia (2009)

15.2%

52

Germany (2012)

16.7%

73

United States (2010)

21.5%

78

Costa Rica (2012)

22.4%

84

Chile (2013)

23.6%

89

El Salvador (2013)

24.7%

93

France (2013)

25.3%

107

South Africa (2012)

28.2%

114

Colombia (2013)

30.8%

116

South Korea (2012)

31.1%

132

Ecuador (2012)

37.0%

135

Brazil (2012)

148

Mexico (2013)

41.3%

164

Argentina (2011)

50.4%

170

Dominican Republic

52.7%

173

Honduras (2012)

54.0%

174

Guatemala (2010)

54.4%

181

Peru (2012)

58.5%

191

Uruguay (2012)

64.6%

192

India (2011)

64.8%

193

Panama (2013)

64.8%

195

Venezuela (2010)

66.0%

202

Haiti (2013)

72.6%

206

Democratic Republic of Congo (2010)

82.0%

207

Bolivia (2011)

83.6%

208

Libya (2013)

89.4%

a

There are only two inmates in San Marino.

b

There are only 12 prisoners in Tuvalu.

8.8%

38.0%

Source: Adapted from data from International Centre for Prison Studies.

Web. 4 July 2013. <prisonstudies.org>

The use and misuse of pretrial detention is one of the main causes of overpopulation and overcrowding in the penitentiary system.

20

10

0

Source: Interior Ministry. National Penitentiary System Statistics. January 2013.

0

18.2

20

Federal District

2013

40

23.6

2012

2011

2010

2009

2008

2007

2006

2005

100.3

96.7

97.8

93.7

92.3

88.9

87.5

89.6

87.8

81.9

77.7

73.7

71.5

63.7

61.4

120

Tamaulipas

31.6

36.9

Campeche

29.7

37.4

Michoacán

Mexico

37.8

Coahuila

37.9

Sinaloa

Guanajuato

32.2

39.0

National

Morelos

39.2

41.5

Baja California

2004

2003

2002

2001

2000

1999

54.4

50.3

47.9

45.3

41.4

44.0

42.2

46.3

56.2

51.4

45.0

100

Zacatecas

42.6

Puebla

45.8

Nuevo León

42.9

45.8

Chiapas

Hidalgo

45.9

Querétaro

43.0

46.0

Veracruz

1998

1997

1996

1995

1994

1993

1992

1991

1990

1989

1988

80

Sonora

46.8 46.2

47.2

Yucatán

Aguascalientes

48.8

Guerrero

San Luis Potosí

49.1

Nayarit

Colima

54.5

Jalisco

49.5

55.0

Tlaxcala

Chihuahua

58.4 55.5

Tabasco

61.0

30

Oaxaca

40 62.0

50

Baja California Sur

60 64.3

70

Durango

80

66.7

60

Quintana Roo

Thousands of pre-trial detainees

60

50

40

30

20

10

0

Source: Based on Jurimetría figures with data from Carranza, et al. (1983): 1972 and 1981; Interior Ministry:

1988-2000 y 2013; and Public Safety Ministry 2001-2012.

Graph 4. Percentage of inmates without a sentence in state prisons, by state, January 2013

100

90 Percentage of pre-trial detainees

21 Prisons in Mexico: What for?

Graph 3. Inmates who have not been sentenced in Mexico (in thousands and as a percentage of total inmates), 1988-2013 70

22

Prisons in Mexico: What for?

16.3

30

28.7

39.4

40

33.1

Chihuahua

Coahuila

40.3

49.0

47.6

Mexico

50

Querétaro

50.2

49.7

Morelos

50.2

Campeche

50.5

Puebla

National

50.8

Yucatán

54.3

51.2

Tlaxcala

Tamaulipas

57.6

56.7

59.1

Sonora

Durango

59.6

60

Guerrero

59.8

Chiapas

Baja California

63.5

62.4

Veracruz

Baja California Sur

Guanajuato

72.0

Hidalgo

66.3

72.1

Quintana Roo

Colima

72.6

Zacatecas

66.4

72.7

Michoacán

70

Nayarit

76.2

74.3

Jalisco

80.0

76.5

80

Aguascalientes

90

85.2

100

94.5

Graph 5. Percentage of inmates without a sentence in federal prisons, by state, January 2013

20 10 Nuevo León

Federal District

Sinaloa

San Luis Potosí

Oaxaca

Tabasco

0

Source: Interior Ministry. National Penitentiary System Statistics. January 2013.

34 According to information from the Interior Ministry (1990-2000 and 2013) and the Public Safety Ministry (2001-2012), the percentages of inmates without sentences at the federal level between 2000 and 2013 are the following: 28.6% (2000), 35.2% (2005), 49.7% (2010), 53.3% (2011), 50.3% (2012), y 50.2% (2013).

The percentage of inmates without a sentence in federal prisons has risen in recent years.34 Thus, after dropping to its lowest point (28.1 percent) in the country’s recent history, this indicator began growing and then took off: In 2011 it reached 53.3 percent.

In 2013, it was 50.2 percent. This could be due to the increase in the load of the federal courts. For example, the country’s battle against organized crime has caused the number of those detained in drug-peddling cases to rise. A greater work load means more case delays, explaining why the number of those in pretrial detention has risen.

*** The Mexican state has given primacy to prison as a method of punishment. In 2011, 96.4 percent of prison sentences imposed prison terms. What purpose do our jails serve if we mete out similar punishments of the same duration to people who commit nonviolent theft and people who commit first-degree murder?

23

Prisons in Mexico: What for?

IV. The Crimes Inmates Are in Prison for

The previous section shows the use and abuse of prison punishments in Mexico.

Given this situation, it is also important to understand who is in our prisons and for which crimes. Answering these questions allows us to fully comprehend how prisons are used in Mexico; first, we show the distribution of interns by jurisdiction. Next, we disaggregate the different types of crimes that have received a prison sentence. a. Distribution of crimes by type There are 242,754 inmates in the country (Table 3), or 207.1 inmates per 100,000 inhabitants. Of these, 79.6 percent (193,194) have been prosecuted or convicted of crimes under local or state jurisdiction. The remaining 20.4 percent (49,560) fall within the scope of federal jurisdiction. Out of the total number of inmates, 217,900 are in one of the 405 local and state facilities, while the remaining 24,854 are in one of the countryâ&#x20AC;&#x2122;s 15 federal facilities. Although the vast majority of inmates in local and state facilities are there for crimes that fall under state jurisdiction, 12.2 percent are serving sentences for federal crimes. In the case of the federal facilities, 7.5 percent of inmates are there for crimes that fall under state jurisdiction.

Table 3. Distribution of inmates in prison under state and federal jurisdiction, Jan. 2013 Number of inmates for crimes under state jurisdiction Local/state facilities (405)

Total inmates for crimes under state and federal jurisdiction

191,318

26,582

1,876

22,978

24,854

193,194

49,560

242,754

Federal facilities (15) Total facilities (420)

Number of inmates for crimes under federal jurisdiction

217,900

Source: National Penitentiary System Statistics, Interior Ministry, January 2013.

As Map 1 shows, the states and entities with the highest number of inmates per 100,000 inhabitants are Baja California (484.9), Federal District, or Mexico City (466.0), Sonora (442.7), and Colima (434.0). States with the lowest incarceration rates are Zacatecas (63.2), Tlaxcala (67.2), Guanajuato (72.2), Coahuila (82.6), and Veracruz (101.9).

Map 1. Incarceration Rate per 100,000 Inhabitants (state jurisdiction and federal jurisdiction), 2013

Source: National Penitentiary System Statistics, Interior Ministry,

+400

January 2013.

301-400

Note: The population for 2013 was determined based on a calculation from the National Institute of Statistics and Geography (INEGI) Population and Housing Census.

201-300 101-200 60-100

24

Prisons in Mexico: What for?

Graph 6 analyzes the percentage of inmates in local or state facilities in each state, according to the type of offense (state law or federal law).

Graph 6. Percentage of Inmates According to Type of Offense (state jurisdiction or federal jurisdiction), January 2013

% Federal jurisdiction % Local jurisdiction

100 90 80 70 60 50 40 30 20 10 Jalisco

National*

Sinaloa

Tamaulipas

Morelos

Guerrero

Oaxaca

Baja California

Aguascalientes

Sonora

Nuevo León

Tlaxcala

Michoacán

Baja California Sur

Chihuahua

Guanajuato

Campeche

Colima

Querétaro

Chiapas

Federal District

Hidalgo

Nayarit

Yucatán

Puebla

Quintana Roo

Tabasco

Zacatecas

Mexico

Durango

Veracruz

Coahuila

San Luis Potosí

0

Source: National Penitentiary System Statistics, Interior Ministry, January 2013.

Note: The national data* contain information from state and local facilities (in the 31 states and the Federal District) and federal facilities. The data for each state refer only to local and state incarceration facilities.

35 It includes fraud, dispossession, breach of trust, and extortion.

b. What types of crimes are inmates in prison for?

Table 4 shows the breakdown of crimes that fall under state jurisdiction.

According to data from INEGI, in 2011, 42.9 percent of inmates were accused or convicted of theft. In the theft category, the subcategory of residential burglary has the highest number of prisoners, with 8.4 percent of all crimes. Furthermore, 17.3 percent of inmates have been charged with or convicted of homicide; 11.8 percent for sexual offenses; 6.3 percent for crimes against property35; and 5.8 percent for kidnapping. This table shows that more unsentenced inmates are in jail for theft than for any other crime.

25

Prisons in Mexico: What for?

Table 4. Nationwide penitentiary population that committed crimes under state jurisdiction, by type of offense, 2011 Total inmates

Offense All local jurisdiction offenses

169,398

Pre-trial detainees

Percentage of pre-trial detainees

Convicts

Percentage of convicts

100.0%

77,018

45.5%

92,380

54.5%

Percentage of inmates

Total thefts

72,700

42.9%

33,858

46.6%

38,824

53.4%

Burglary

14,256

8.4%

5,837

40.9%

8,419

59.1%

Vehicle thefts

11,467

6.8%

4,234

36.9%

7,233

63.1%

4,347

2.6%

1,865

42.9%

2,482

57.1%

Business thefts Other thefts

42,630

25.2%

21,922

51.4%

20,708

48.6%

Murder and Manslaughter

29,363

17.3%

10,243

34.9%

19,120

65.1%

3.5%

3,008

51.2%

2,862

48.8%

11.8%

7,395

37.0%

12,588

63.0%

9,786

5.8%

4,812

49.2%

4,974

50.8%

10,683

6.3%

5,180

48.5%

5,503

51.5%

1,236

0.7%

729

59.0%

507

41.0%

12,522

59.6%

8,491

40.4%

Assault

5,870

Sexual abuse

19,983

Kidnapping All crimes against property Extortion Other offenses

21,013

12.4%

Source: Criminal Justice Statistics, INEGI.

In regard to inmates in prison for federal crimes (see Table 5), most are in for crimes against health (drug crimes, 48.2 percent), followed by violations of the Federal Firearms and Explosives Act (27.1 percent).

Table 5. Nationwide prison population that committed crimes under federal jurisdiction, by type of offense, 2011

Offense All federal jurisdiction offenses

Total inmates 33,716

Pre-trial detainees

Percentage of pre-trial detainees

Convicts

Percentage of convicts

100.0%

17,617

52.3%

16,099

47.7%

Percentage of inmates

Crimes against public health

16,255

48.2%

8,479

52.2%

7,776

47.8%

Federal Law of Firearms and Explosives

9,143

27.1%

4,342

47.5%

4,801

52.5%

Organized crime

1,555

4.6%

1,148

73.8%

407

26.2%

Conspiracy

944

2.8%

503

53.3%

441

46.7%

Crimes against property

790

2.3%

285

36.1%

505

63.9%

Crimes against life and bodily integrity

605

1.8%

152

25.1%

453

74.9%

Environmental crimes Other offenses

432

1.3%

310

71.8%

122

28.2%

3,992

11.8%

2,398

60.1%

1,594

39.9%

26

Prisons in Mexico: What for?

c. Length of sentences Considering that most inmates are accused or convicted of theft (in the case of state and local crimes) or drug-related crimes (federal law), we now examine how long, on average, they remain in jail.

In 2011, 58.8 percent of the sentences imposed in the country were for less than three years of prison, which in the Mexican legal context corresponds to punishments for nonviolent crimes (Graph 7). This means that most of the penitentiary system’s resources went to minor crimes, mainly drug possession and nonviolent petty thefts. Crime policy in Mexico has cheapened the use of prison, which should be the last resort of society.

At the national level, only 3.5 percent of punishments called for alternatives to prison. The remaining 96.5 percent are divided as follows: 54.3 percent for jail sentences of less than three years, 28.9 percent for sentences between three and seven years, and 13.3 percent for sentences over seven years.

In four states, more than 75 percent of sentences were for less than three years: Aguascalientes (83.2), Baja California (79.9), Guanajuato (79.3), and Michoacán (78.1). In turn, the states with the highest percentage of sentences over seven years were Guerrero (37.2), Morelos (34.9), and Oaxaca (21.0). On the other hand, the states with the highest percentage of unsentenced inmates were Yucatan (23.4), Querétaro (17.7), and Hidalgo (14.5).

Graph 7. Distribution of Criminal Punishments (both jurisdictions), by State, 2011

No prison sentence

3 to 7 years

Under 3 years

Over 7 years

100 90 80 70 60 50 40 30 20 10 Yucatán

Zacatecas

Tlaxcala

Veracruz

Tabasco

Tamaulipas

Sonora

Sinaloa

San Luis Potosí

Querétaro

Quintana Roo

Puebla

Oaxaca

Nuevo León

Nayarit

Morelos

Michoacán

Jalisco

Mexico

Hidalgo

Guerrero

Guanajuato

Durango

Federal District

Colima

Coahuila

Chiapas

Chihuahua

Campeche

Baja California

Baja California Sur

National

Aguascalientes

0

Criminal Justice Statistics, INEGI, 2011.

*** Currently, there are 242,754 prisoners in Mexico. Three out of four have been accused or convicted of crimes under state jurisdiction. In spite of the exponential growth of violence in recent years, especially in relation to murder and kidnapping, most inmates are incarcerated for theft. Furthermore, despite public support for longer sentences and the backing of some political parties for this, in reality, most of the sentences in Mexico last less than three years. What is the purpose of jail in Mexico if the vast majority of inmates serving sentences in prison are there for minor crimes, with sentences of less than three years, who could very well have received alternative punishments? Prison is abused as a punishment while less expensive and more appropriate punishments are disregarded.

27

Prisons in Mexico: What for?

V. The Consequences of the Overuse of Prison in Mexico

The large increase in the prison population in recent years has far exceeded prison capacity.

This has caused a serious overpopulation and overcrowding problem, one of the main impediments for policies and programs seeking to reintegrate inmates into society. a. Overpopulation and overcrowding In January 2013, 242,754 people were incarcerated in Mexico in a space designed for 195,278, which puts the occupation rate was 124.3 percent. According to the most recent data, 220 of Mexico’s 420 penitentiary centers are overpopulated.36 The occupancy rate depends on the type of prison being analyzed. As seen in Table 6, the occupancy rate in the federal penitentiary system is 95.8 percent; it is at, but not over, capacity. However, the occupancy rate in state and local prisons is 128.7 percent.

Table 6. Capacity and occupancy rate in Mexican penitentiary centers in Mexico, January 2013 Total Federal prisons Local and state prisons*

Centers

Capacity

Occupancy

Occupancy

420

195,278

242,754

124.3%

15

25,952

24,854

95.8%

405

169,326

217,900

128.7%

Source: Interior Ministry. National Penitentiary System Statistics. January 2013.

* The local and state penitentiary centers are divided into three groups: 11 correspond to the Federal District government, 303 to state governments, and 91 to municipal governments.

Penitentiary studies literature considers overcrowding to be critical when it exceeds 120 percent of designed capacity.37 After having arrived at a disquieting 152 percent prison occupancy rate in 1990, the country managed to reduce the problem in the next few years; in 1994, the rate had fallen to 98 percent.

Nevertheless, the penitentiary population began growing again, causing the system to be overpopulated again in recent years despite the construction of new prisons.

36 Interior Ministry, National Penitentiary System Statistics.

37 Carranza, Elías.

“Sobrepoblación penitenciaria en América latina y el Caribe: situación y respuestas posibles” (Penitentiary Overpopulation in Latin America and the Caribbean: The Situation and Possible Answers). Justicia penal y sobrepoblación penitenciaria: respuestas posibles (Criminal Justice and Penitentiary Overpopulation: Possible Answers). Ed. Elías Carranza.

Mexico: Siglo XXI, 2001.

28

Prisons in Mexico: What for?

Between 1995 and 2004 the penitentiary population in Mexico doubled.

This was the period of greatest growth of the prison population. The average increase between those years was 8.3 percent. After 2004, the growth has been smaller, with an annual rate of 2.7 percent.

38 De la Luz González, María.

“The federal government will operate 12 new penitentiaries.”

El Universal 17 June 2009.

Web. 2 July 2013. <http:// www.eluniversal.com.mx/ nacion/169058.html>.

39 The states where oral trials are taking place are: Baja California, Chiapas, Chihuahua, Durango, Guanajuato, Mexico, Morelos, Nuevo León, Oaxaca, Tabasco, Veracruz, Yucatan, and Zacatecas. See <www. reformapenalmexico.org>.

Date of access: 3 July 2013.

The occupancy rates have begun to fall, but not enough to solve the prison overpopulation problem. The drop in the occupancy rate is due to a major investment to build high-security federal prisons during the Calderón administration. The original plan was to build 12 penitentiary centers.38 Also, there have been increased early-release numbers and other changes that have reduced the pressure on prisons. Additionally, there has been a more diligent use of pretrial detention by judges in states that have begun to carry out the accusatory and adversarial criminal justice model (generally called the “oral trial system”) following the criminal justice and public safety reforms of June 2008.39

Graph 8. Prison capacity, population, and occupancy rates in Mexico, 1988-2013 (nationally)

Prison population Prison capacity

260,000

124%

240,000

134%

220,000 200,000

128%

180,000 160,000 140,000 120,000 Occupancy 98%

152%

100,000 80,000 60,000 40,000 20,000

Source: Interior Ministry: 1988-2000 and 2013. Public Safety Ministry 2001-2012.

2013

2012

2011

2010

2009

2008

2007

2006

2005

2004

2003

2002

2001

2000

1999

1998

1997

1996

1995

1994

1993

1992

1991

1990

1989

1988

0

29

Prisons in Mexico: What for?

In spite of the reduction in the rate of growth of the prison population in recent years, the overcrowding situation is still critical. Of the country’s 420 penitentiary centers, 220 (52.4 percent) are overpopulated; these 220 centers house 74 percent of Mexico’s inmates. Cells built to house six or eight people hold 14 or up to 20 inmates, meaning that there is not enough room for everyone to sleep, even on the floor. This type of overcrowding goes against the Standard Minimum Rules for the Treatment of Prisoners of the United Nations (Articles 9 and 10);40 and it is considered to be cruel punishment in accordance with international human rights standards.41

40 See <http://www2.ohchr.org/ spanish/law/reclusos.htm>.

41 Carranza, Elías. “Sobrepoblación penitenciaria”: 22.

58.2%

60

46.1%

74.3%

70.6%

Tlaxcala

82.4%

Coahuila

Campeche

80

Guanajuato

86.4%

83.2%

Yucatán

92.4%

88.7%

Sinaloa

Tamaulipas

95.2%

93.9%

95.2%

Oaxaca

Durango

97.8%

Querétaro

97.9%

San Luis Potosí

Baja California Sur

109.6%

Baja California

100

100.7%

112.2%

Aguascalientes

123.0%

115.6%

120

Veracruz

133.8%

142.6%

Puebla

140

128.7%

144.7%

143.2%

Chiapas

150.3%

147.4%

Tabasco

Guerrero

Nuevo León

154.3%

160

Morelos

167.2%

166.4%

Hidalgo

176.1%

180

170.5%

200

Mexico

184.7%

Graph 9. Federal prison occupancy rate, 2013

40 20 Zacatecas

Michoacán

Colima

Quintana Roo

National

Chihuahua

Sonora

Jalisco

Nayarit

Federal District

0

Source: Interior Ministry. National Penitentiary System Statistics. January 2013.

Note: The prison occupancy rate was calculated by dividing total prison occupancy by total prison capacity and multiplying by 100.

Table 7. Penitentiary centers with the highest occupancy rates in Mexico, January 2013 Penitentiary center

State

Tepeaca district jail

Puebla

Capacity 46

Occupancy 266

578.26%

Cereso Tlapa de Comonfort

Guerrero

60

278

463.33%

Cereso Apan

Hidalgo

22

94

427.27%

Tizayuca district jail

Hidalgo

47

181

385.11%

Izúcar de Matamoros district jail

Puebla

76

265

348.68%

Cereso Zihuatanejo

Guerrero

67

228

340.3%

CPRS Jilotepec

Mexico state

86

289

336.05%

Cereso Ometepec

Guerrero

52

173

332.69%

Cereso San Pedro Cholula

Puebla

147

484

329.25%

Xicotepec de Juárez district jail

Puebla

81

263

324.69%

Cereso Puerto Peñasco

Sonora

84

268

319.05%

Atlixco district jail

Puebla

63

195

309.52%

CPRS Chalco

Mexico state

548

1,692

308.76%

Source: Interior Ministry. National Penitentiary System Statistics. January 2013.

Note: The prison occupancy rate was calculated by dividing total prison occupancy by total prison capacity and multiplying by 100.

Note: CERESO means “Centro de Readaptación Social”.

% Occupancy

30

Prisons in Mexico: What for?

As shown in Table 8, it is worrisome that several of the country’s larger penitentiary centers have serious overcrowding. Some even have occupancy rates above 200 percent.

Table 8. Occupancy rate of penitentiary centers with larger capacity, January 2013 Penitentiary center

State

Capacity

Occupancy

Islas Marías penitentiary complex

Federal

8,040

7,732

% Occupancy 96.17%

Reclusorio Preventivo Norte

Federal District

5,631

12,256

217.65%

Reclusorio Preventivo Oriente

Federal District

5,376

12,143

225.87%

Cereso El Hongo

Baja California

4,688

4,268

91.04%

Reclusorio Preventivo Sur

Federal District

3,500

9,596

274.17%

Centro Varonil de Readaptación Social Santa Martha Acatitla

Federal District

3,319

2,421

72.94%

Cereso Monterrey (Topo Chico)

Nuevo León

3,282

5,123

156.09%

Cereso Estatal 1 and 2

Chihuahua

3,002

3,848

128.18%

Reclusorio Preventivo de Guadalajara

Jalisco

3,000

7,023

234.1%

Cereso Lic. Jorge A. Duarte (Tijuana)

Baja California

2,712

6,673

246.05%

Cereso Puebla

Puebla

2,206

3,268

148.14%

Cereso Hermosillo

Sonora

2,153

4,243

197.07%

Cereso 1 Puente Grande

Jalisco

2,087

5,749

275.47%

Source: Interior Ministry. National Penitentiary System Statistics. January 2013.

Note: Only penitentiary centers with capacities or occupancy of more than 3,000 people are included. The prison occupancy rate was calculated by dividing total prison occupancy by total prison capacity and multiplying by 100.

In general, prison overcrowding and overpopulation makes it difficult to operate effective programs to reintegrate convicts into society.

The prison population increase has not only brought about a reduction in social-services coverage but there is also a lack of adequate facilities for psychotherapeutic and educational activities that are key in helping prepare inmates for their reintegration into society.42

42 Patiño, José Patricio. El nuevo modelo de administración penitenciaria (The New Model of Penitentiary Administration).

Mexico: Porrúa, 2010): 115.

Overcrowding and a lack of public spending on prisons have meant shortages in goods and services. This has caused conflict in relation to prison space, food and services that international norms say should be freely provided by the prison system. An informal system of charges has developed where inmates have to pay to have access to certain services or to be freed from certain obligations.

Prisons in Mexico: What for?

There are other items the inmates need such as sheets, blankets, clothes, and shoes, which should be provided by the institution. They are provided in the federal penitentiaries, but the surveys show that this apparently is not the case when it comes to prisons in the Federal District and the State of Mexico (Table 10).

Water

2002

2005

2009

2012

Federal District

61%

67%

74%

-

State of Mexico

39%

58%

71%

-

Federal prisons

-

-

-

56.5%

Federal District

33%

31%

21%

-

State of Mexico

20%

20%

18%

-

-

-

-

13.4%

Centros Federales

31.7%

49.2%

43.6%

State of Mexico 2005

53.1%

44.7%

40

Federal District 2005

33.5%

50

30 20 10

Federal Prisons 2012

State of Mexico 2009

Federal District 2009

0

Source: Surveys of the Imprisoned Population. CIDE: 2002, 2005, 2009, and 2012.

43 National Human Rights Commission. “Special Report of the National Human Rights Commission on the Human Rights Situation in Imprisonment Centers of Local and Municipal Governments in the Mexican Republic.” Gaceta 170 (2004): 86-87.

44 Guerrero, Eduardo. “Las cárceles y el crimen” (Jails and Crime).

Nexos, 1 Jan. 2012. Web. 3 July 2013. <http://www.nexos. com.mx/?P=leerarticulo&Article=2102629>.

45 The 2012 survey includes data from eight centers, including five in the Complejo Penitenciario Islas Marías. The other three were Cefereso 1, Altiplano, in the state of Mexico; Cefereso 2, Occidente, in Jalisco; and Cefereso 8, Norponiente, in Sinaloa.

Table 10 Percentage of inmates to whom the institution provides personal items, 2002-2012

Table 9. Percentage of inmates who reported not having sufficient food or drinking water, 2002-2012 Food

60

State of Mexico 2002

b. Deterioration of services The Center for Research and Teaching of Economics (CIDE) has conducted four surveys of the prison population that serve to illustrate the lack of resources for inmates, as well as limits on the access to and quality of the resources that do exist. The first three surveys—2002, 2005, and 2009— centered on penitentiaries in the Federal District and the state of the Mexico. The latest one—2012—was taken at Federal Centers of Social Readjustment (Ceferesos, or Centros Federales de Readaptación Social).45 These surveys report a deterioration in the amount and quality of food, potable water, and items for daily use, in addition to poor medical care, little communication between inmates and their families, and a lack of educational, sports and work activities; a high percentage also said they felt unsafe inside their cells.

Graph 10. Percentage of inmates who consider that the quality of food they receive is bad or very bad, 2002-2012

46.7%

Thus, some inmates must pay to use a public telephone, for missing roll call, to avoid cleanup work, and to have access to medical care, among other things.43 Under these conditions, corruption and violence have become part of an informal system of the distribution and provision of services. Corruption networks that operate in penitentiaries have been documented; they are sometimes run by public servants (particularly, the guards), and sometimes extortion activities are carried out by dominant groups of inmates.44

Federal District 2002

31

Federal District and State of Mexico (2002-2009)

Federal prisons, 2012

Sheets

1.6%

99.8%

Blankets

3.5%

99.4%

Clothing

1.3%

99.4%

Shoes

1.1%

98.3%

Source: Surveys of the Imprisoned Population. CIDE: 2002, 2005, 2009, and 2012.

32

Prisons in Mexico: What for?

The federal prisons survey showed that there is a shortage of other items (Graph 11). The inmates reported a lack of toothpaste, toothbrushes, and water for their personal hygiene; in general, the shortages are much more serious in state and local prisons.46

72.5%

Graph 11. Percentage of inmates in federal prisons where the institution does not provide daily use items, 2012

80 70 60

20 10

7.2%

26.3%

30

12.2%

40

20.6%

50

Toothpaste

Toothbrush

Sufficient water for personal hygiene

Soap

Toilet paper

0

Source: Survey of the Imprisoned Population in Federal Centers of Social Readjustment, CIDE, 2012.

46 The 2002, 2005, and 2009 surveys do not include questions about these items.

Additionally, the inmates gave bad marks to the medical care they receive in prison (Table 11). This indicator has also deteriorated since 2002.

Table 11. Inmatesâ&#x20AC;&#x2122; perception of the medical care they receive in Federal District, State of Mexico, and federal prisons, 2002-2012 Federal District

State of Mexico

Federal District

State of Mexico

Federal District

State of Mexico

Federal Prisons 2012

2002

2002

2005

2005

2009

2009

Very good

2.38%

3.68%

2.31%

3.52%

2.25%

2.65%

4.4%

Good

21.2%

34.1%

20.8%

27.7%

20.5%

21.2%

21.3%

Fair

41.8%

48.3%

42.1%

46.0%

44.3%

42.6%

33.5%

Bad

20.2%

10.5%

16.4%

12.8%

18.8%

18.3%

18.7%

Very bad

14.4%

3.5%

18.5%

9.9%

14.3%

15.3%

17.4%

Source: Surveys of the Imprisoned Population. CIDE: 2002, 2005, 2009, and 2012.

33

Prisons in Mexico: What for?

CNDH reports agree with the failing grades the inmates gave the medical care they receive in the penitentiaries: During the visits, it was found that medical care is deficient in most of the country’s prisons because they don’t have enough doctors, dentists, or trained nurses, and the situation is worse when it comes to gynecological care (indispensable for female inmates) and psychiatric services; in some places there is not even a doctor on duty, causing prison administrators to have to request help from other institutions. Also, there is not enough medicine to treat even the most common diseases; there aren’t enough medical instruments and supplies needed for first aid treatment.47 Maintaining contact with their families and having access to sporting, educational, and work activities are key areas in preparing convicts to reintegrate into society.

According to the 2009 CIDE survey, 14.9 percent of inmates in the Federal District and the State of Mexico never receive visits; in federal penitentiaries, this figure had risen to 80.3 percent in 2012—mainly as a result of a lack of money, because family members lived far away, or because the process of visiting was expensive, or because inmates were not authorized to receive visitors. Thus, a recommendation of the CIDE researchers was to promote communication with and visits from relatives, restricting such communication and visits only when absolutely necessary.

In light of this, it is important to recognize that the 2008-2012 Penitentiary Strategy established the “Televisita” program, allowing long-distance communication with inmates through teleconferences. The project was initiated in the maximum-security Cefereso 1 “Altiplano,” with the goal of expanding it.48

47 National Human Rights Commission.

“Special Report,” 91-92.

48 Órgano Administrativo Desconcentrado de Prevención y Readaptación Social de la Secretaría de Seguridad Pública (Decentralized Agency for Prevention and Social Readjustment of the Public Safety Ministry). “Informe de Rendición de Cuentas 2006-2012 (etapa 3)” (20062012 Accountability Report (Phase 3).

Web. 5 July 2013. <http://www.ssp.gob. mx/portalWebApp/ShowBinary?nodeId=/ BEA%20Repository/1222276//archivo>.

49 2009 percentage figures of inmates who said their families had to pay: To enter the penitentiary: 45.0 and 29.5 percent, in the Federal District and the state of Mexico, respectively; to send for them: 59.0 and 30.5 percent; to bring in food: 65.0 y 54.0 percent; to bring in clothing: 69.0 y 51.0 percent; to bring in other items: 63.5 y 51.0 percent.

In spite of these advances, much remains to be done to improve the treatment relatives receive when they visit inmates; according to the inmates, it is common practice for family members to be charged to enter the penitentiary, to send for the inmate, as well as to bring in food, clothing, or other items.49

Table 12. Inmates’ perception of the treatment their families receive when they visit, 2009 and 2012 Federal District and State of Mexico, 2009 Very good

2.0%

Federal prisons, 2012 2.4%

Good

20.7%

8.5%

Fair

33.6%

24.1%

Bad

26.9%

25.0%

Very bad

16.9%

16.7%

Bad and very bad

43.8%

41.7%

Source: Surveys of the Imprisoned Population. CIDE: 2009 and 2012.

34

Prisons in Mexico: What for?

A high percentage of inmates participate in sporting, work, educational, cleanup, and training activities (Table 13). Nevertheless, there is much to be done to get to the 100 percent mark.

Table 13. Percentage of inmates who participate in the following activities, 2009 and 2012 Federal District and State of Mexico, 2009

Federal prisons, 2012

Sports

76.5%

84.4%

Cleanup

68.4%

82.6%

Work

73.0%

46.2%

Not determined

59.3%

80.0% (approximately)

56.0%

Training Educational

Source: Surveys of the Imprisoned Population. CIDE: 2009 and 2012.

In light of these deficiencies in programs to promote inmates’ reintegration into society, the 2008-2012 Penitentiary Strategy considered establishing alliances with other governmental institutions that would result in greater personal development and greater technical training.50 c. Inability to govern prisons The growth of the prison population has caused the ratio of inmates to prison employees to increase. Thus, it comes as no surprise that the governance of prisons is not in the hands of the state but rather in the hands of some inmates, as has been documented by the national media. To illustrate this point, it is worth remembering that in February 2012, the worst prison riot in recent years took place in Apodaca, Nuevo León; at least 44 died and 37 prisoners escaped.51 On the other hand, on February 11, 2013, the chief of the guards at the Puerto Peñasco prison in Sonora state was detained for possession of drugs with intent to sell. 52 Also in February 2013, five dangerous criminals left the Hermosillo penitentiary without having completed their sentences because 12 employees accepted a bribe of nearly a million pesos ($76,000) to let them go.53 The most recent data available, from June 2011, shows there were 44,938 prison employees and 225,697 inmates that month; that is five inmates per employee. If only state and local prisons are examined, the ratio was 7.1 inmates per prison employee.

50 Public Safety Ministry. Documented Record: Results of the 2008-2012 Penitentiary Strategy. (Mexico: Public Safety Ministry, 2012: 39. Web. <http:// www.ssp.gob.mx/portalWebApp/ ShowBinary?nodeId=/BEA%20 Repository/1214078//archivo>.

51 “Chronology: Apodaca riot, most serious in 5 years.” El Universal, 19 Feb. 2012. Web. 2 July 2013. <http://www.eluniversal.com.mx/ nacion/169058.html>.

52 Sánchez Dórame, Daniel. “Chief of guards in Sonora prison detained for selling drugs.” Excélsior, 19 Feb. 2013. Web. 3 July 2013. <http://www.excelsior.com.mx/ nacional/2013/02/19/885073>.

53 Sánchez Dórame, Daniel. “Network of corruption allows 5 inmates to leave prison before completing sentences.”

Excélsior, 26 Feb. 2013. Web. 5 July 2013. <http://www.excelsior.com.mx/ nacional/2013/02/26/886206>.

35

Prisons in Mexico: What for?

20.0

18.8

Graph 12. Inmates for each penitentiary employee, 2011

2.8

2.8

Guanajuato

Baja California Sur

3.7

Michoacán

4.0

3.1

3.8

Chiapas

Aguascalientes

4.4

Yucatán

3.9

4.5

4.4

Durango

4.6

Chihuahua

4.7

Tlaxcala

4.9

San Luis Potosí

Tamaulipas

5.2

5.0

National

6.0

Querétaro

6.0

5.6

Hidalgo

6.3

Mexico

Morelos

6.9

7.2

Puebla

6.7

7.3

Guerrero

Colima

7.4

Nuevo León

Campeche

7.8

7.7

Jalisco

8.0

Coahuila

9.2

Veracruz

8.7

9.3

10.0

Nayarit

11.5

12.0

11.0

12.9

12.6

14.0

Sonora

16.0

Baja California

13.9

18.0

2.0

Source: National Public Safety System, 2011.

Zacatecas

Oaxaca

Federal District

Sinaloa

Tabasco

Quintana Roo

0

As other studies have shown, the precarious operating and living conditions in prisons allow criminal groups to create their own governance system inside the facilities.54 Given the informality of the agreements behind such self-government, violence and intimidation prevail as everyday tools to enforce the agreements or rules imposed by some of the groups. According to the National Human Rights Commission (CNDH), large corruption networks operate in prisons; this has meant that inmates with economic power and criminal leadership have corrupted authorities to the extent that inmates can organize or direct organized crime groups from inside the penitentiaries.55 Consequently, in recent years, rioting has increased and violence has risen to alarming levels.

The preliminary report of the Third Investigative Unit of the CNDH, charged with monitoring prisons, found that 269 incidents took place in Mexican prisons between 2010 and May 2013.56

54 Skarbek, David. “Governance and Prison Gangs.” American Political Science Review 105.4 (Nov. 2011): 702-716.

55 National Human Rights Commission.

Special Report: 86.51.0 percent.

56 Prado, Henia. “Twelve inmates killed every month in prison.” Reforma, 15 June 2013.

36

Prisons in Mexico: What for?

Graph 13. Violent incidents in Mexican prisons, 2010-2013 Fights

41.3%

Murders

20.1%

Prison breaks

11.5%

Suicides

11.5%

Mutinies

3.0%

Hunger strikes

2.6%

Natural deaths

2.6%

Attempted prision breaks

1.9%

Confrontations

1.5%

Attempted mutinies

1.5%

Accidents

1.5%

Fires

0.7%

Kidnappings

0.4%

Source: Preliminary results of the Third Investigative Unit of CNDH, 2013. Available in: Prado, Henia.

“Twelve inmates killed every month in prison.” Reforma. National. 15 June 2013.

Inmates have very clear insights into how the violence and prison selfgovernance situation affects their safety. An important percentage of the inmates feel unsafe in their cells (Table 14).

Table 14. Level of safety federal inmates feel in their cells, 2012 Altiplano

Occidente

Norponiente

Islas

Very safe

58.6%

48.5%

55.1%

34.1%

35.8%

Somewhat safe

34.5%

45.5%

40.4%

48.3%

38.9%

6.9%

6.1%

4.5%

17.3%

25.3%

Not safe

Rehilete

Source: Survey of the Imprisoned Population in Federal Centers of Social Readjustment, CIDE, 2012.

In light of these situations, the administration of Felipe Calderón, through the 2008-2012 Penitentiary Strategy, created the Penitentiary Career Service through the National Academy of Penitentiary Administration (ANAP)57 with a view toward the training and professionalization of penitentiary personnel (managers, supervisors, guards and other security personnel, technical staff, and crisis personnel, etc.). Between 2009 and 2011, 369 federal prison security staff members received training at the New Mexico Corrections Department Training Academy in the United States.58

57 The creation of the National Academy of Penitentiary Administration (ANAP) was agreed to during the 23rd session of the National Council of Public Safety on June 3, 2010.

58 Public Safety Ministry. “Memoria.” 88..

d. Vulnerability of human rights Overpopulation and poor prison conditions not only are turning Mexican penitentiaries into time bombs, but they also are making it impossible to meet the Constitution’s goal of reintegrating inmates into society.

Under these conditions, convicts’ human rights are vulnerable and constantly violated.

37

Prisons in Mexico: What for?

Table 15. Rating per state or entity by the National Diagnosis for Penitentiary Supervision (CNDH), 2011 Aspects that guarantee integrity Inmates’ physical and moral well-being

Aspects that guarantee dignity in prison

Conditions of governance

Reintegration into society of inmates

Groups of inmates with special needs

Rating by state or entity

National

6.35

6.73

5.84

6.41

6.86

6.41

Aguascalientes

7.96

9.42

8.47

8.43

7.90

8.47

Baja California

5.80

6.09

6.39

7.14

7.53

6.56

Baja California Sur

6.72

7.05

6.44

6.10

7.12

6.61

Campeche

7.33

6.62

6.13

5.22

6.58

6.36

Chiapas

6.33

6.43

6.31

5.79

7.09

6.36

Chihuahua

7.32

8.34

6.97

6.89

6.54

7.08

Coahuila

4.55

5.54

4.68

5.58

4.55

5.21

Colima

6.83

6.67

5.99

6.94

6.94

6.65

Federal District

5.09

6.85

4.59

6.53

7.26

5.99

Durango

7.67

7.84

5.78

5.82

6.13

6.63

Guanajuato

8.35

8.54

7.98

7.70

7.47

7.89

Guerrero

4.92

4.51

4.36

5.28

6.56

5.13

Hidalgo

5.39

7.32

5.97

6.69

6.39

6.37

Jalisco

6.13

8.74

7.01

8.24

7.79

7.54

Mexico state

5.40

5.07

5.59

6.74

6.65

5.89

Michoacán

7.24

6.41

5.19

7.64

7.34

6.77

Morelos

6.93

7.22

5.72

5.84

7.17

6.44

Nayarit

4.27

5.20

4.25

3.35

6.24

4.57

Nuevo León

4.73

5.90

4.74

6.07

7.06

5.77

Oaxaca

5.36

4.21

4.17

5.15

6.84

5.15

Puebla

7.10

7.01

6.87

7.26

7.17

6.99

Querétaro

7.50

8.90

7.66

8.15

6.91

7.79

Quintana Roo

5.83

4.83

3.74

5.55

6.94

5.44

San Luis Potosí

6.84

7.78

6.38

6.02

6.88

6.84

Sinaloa

7.49

4.37

5.57

6.09

7.34

6.14

Sonora

6.64

7.54

6.06

5.88

7.56

6.79

Tabasco

4.32

5.30

5.27

4.19

5.12

4.86

Tamaulipas

6.60

6.22

4.41

5.94

6.28

5.88

Tlaxcala

7.74

8.52

6.32

8.32

8.00

7.80

Veracruz

6.26

7.00

5.33

7.61

7.21

6.60

Yucatán

6.66

6.65

6.29

4.95

6.28

6.13

Zacatecas

7.36

6.34

6.04

6.74

6.88

6.51

State or entity

Source: National Diagnosis for Penitentiary Supervision. National Human Rights Commission. 2011.

Graph 14 presents prison ratings for each state and the Federal District. In spite of its overcrowding problems, Jalisco has one of the best ratings. Despite the overcrowding problem in Jalisco prisons, violent incidents are few and no riots or killings have been reported in recent years.

38

Prisons in Mexico: What for?

4.86

4.57

Nayarit

5

Tabasco

5.15

5.13

Oaxaca

5.77

Nuevo León

Guerrero

5.88

5.21

5.89

Mexico

Tamaulipas

6

5.44

6.13

6.14

Sinaloa

5.99

6.36

Chiapas

Campeche

Yucatán

6.36

Hidalgo

Federal District

6.41

6.37

National

6.44

Morelos

Veracruz

6.56

6.60

Baja California Sur

6.51

6.61

Durango

Zacatecas

6.63

Colima

Baja California

6.77

6.65

Michoacán

6.84

6.79

Sonora

Puebla

7

San Luis Potosí

6.99

Chihuahua

7.54

7.79

7.08

7.80

Tlaxcala

Querétaro

8

7.89

9

Guanajuato

10

8.47

Graph 14. Rating per district or entity by the National Diagnosis for Penitentiary Supervision (CNDH), 2011

4 3 2 1 Coahuila

Quintana Roo

Jalisco

Aguascalientes

0

Source: National Diagnosis for Penitentiary Supervision. National Human Rights Commission. 2011.

The vulnerability of incarcerated people in Mexico also can be illustrated by the number of complaints made to organizations that protect human rights and the recommendations made by the organizations. Eleven percent of the human rights complaints investigated by human rights commissions are made about prisons.59 Five recommendations had been made this year by the time this report was published. The first was 12/2013, directed to Mexico state Gov. Eruviel Ávila and to Manuel Mondragón, the national commissioner of public safety, about a case where an inmate was tortured, and later died, at the Altiplano federal prison in Almoloya de Juárez. It is important to remember, nevertheless, that CNDH recommendations are not binding. The persistence of these lamentable abuses shows what little effect these recommendations have had in improving living conditions inside Mexican prisons. *** As has been extensively documented, living conditions in Mexican jails are precarious. What purpose do Mexican prisons serve if their conditions are not creating the necessary climate to reintegrate inmates into society? This situation of mistreatment makes prison a school for violence and impunity; it generates social time bombs that translate into more and greater episodes of violence outside prisons, not to mention the prison riots and confrontations between inmates linked to rival organized crime groups.

59 Jurimetría figures based on state human rights commissions’ information

Although the state uses prison as its primary instrument to combat crime, in reality it has lost control of the institution; the networks of corruption, drug use, inmate self-governance, and other problems result from the precarious prison living conditions and overpopulation problems. Thus, prison is far from meeting the goals of crime prevention and inmates’ rehabilitation or reintegration into society.

39

Prisons in Mexico: What for?

VI. The Cost of the Prevalence of Using Prison as Punishment The overuse of prison not only has negative consequences in terms of living conditions and resultant violence, but also important societal costs. a. Social cost Even short stays in prison have important criminogenic effects. On the one hand, the crime-deterrence incentive of having a clean record is gone. In addition, ex-convicts have trouble getting hired, and suffer the stigma of having been in prison. All this increases the probability that ex-convicts will wind up participating in illegal or criminal activities again. In Mexico, the percentage of sentences given to recidivists is 15.5 percent (Graph 15).

70

70.8%

71.1%

69.2%

80

72.1%

Graph 15. Condici贸n de reincidencia en sentencias condenatorias en M茅xico, 2009-2012

60 50

10

13.7%

15.5%

14.2%

14.7%

14.3%

13.6%

20

16.5%

30

14.3%

40

Non-recidivist (%) Recidivist (%) Unknown (%)

2012

2011

2010

2009

0

Source: 2012 Criminal Justice Statistics, INEGI.

In 2012, recidivism made up 17.1 percent of crimes under state jurisdiction, and 11.1 percent of crimes under federal jurisdiction. (Criminal Justice Statistics, INEGI).

Some crimes in state jurisdictions register recidivism percentages above 20 percent. This is the case of auto theft (35.3), use and transfer of stolen vehicles (25.0), and all theft (21.4).60 If we take into account that two of every five inmates are in prison for theft, these recidivism numbers indicate that, at least for theft, prison is not satisfactorily meeting its goal of deterrence or of preparing inmates to reintegrate into society.

On the contrary, serious crimes such as kidnapping (12.6), homicide (10.6) register smaller recidivism percentages on average. Federal crimes with recidivism rates that merit attention are the sexual exploitation of minors and people with reduced capacities, with 20 percent recidivism, criminal organization, with 16.7 percent, and narcotics violations, 13.4 percent.

60 National Institute of Statistics and Geography, Criminal Justice Statistics, 2012.

40

Graph 16. Recidivism as a percentage of Mexican prison sentences, at the state level, 2012

35.2%

40.0%

Prisons in Mexico: What for?

3.0%

3.0%

Tabasco*

Guerrero*

5.5%

3.8%

Chihuahua*

5.0%

Sinaloa*

6.1%

6.0%

Campeche

Mexico

6.5%

Jalisco*

Chiapas*

7.3%

7.1%

Zacatecas

10.3%

Hidalgo

9.7%

10.4%

8.6%

10.6%

Morelos

Durango

10.0%

Tlaxcala

11.2%

10.6%

Nayarit

Oaxaca

11.4%

Coahuila

Aguascalientes*

13.3%

12.5%

Veracruz

14.2%

13.4%

Querétaro

15.5%

Tamaulipas

14.7%

14.7%

Puebla

14.4%

15.3%

National

Baja California Sur

Quintana Roo

15.5%

Michoacán

San Luis Potosí

17.2%

16.5%

Guanajuato

17.3%

20.0%

Sonora*

21.2%

25.5%

17.8%

30.0%

Baja California

22.8%

30.5%

Nuevo León

Yucatán

Colima

Federal District

0

Source: 2012 Criminal Justice Statistics, INEGI. * Note: The category of “recidivism not specified” was greater than 20 percent in states marked with an asterisk. Sonora (21.0), Chihuahua (23.9), Chiapas (39.9), Jalisco (48.9), Aguascalientes (59.2), Guerrero (61.4), Tabasco (67.4), and Sinaloa (67.8).

61 Robertson, Oliver. “The impact of parental imprisonment on children.” Geneva: Quaker United Nations Office, 2007: 9. Web. <http://quno.org/geneva/pdf/ humanrights/women-in-prison/ ImpactParentalImprisonment200704-English.pdf>.

62 Children of Prisoners: Interventions and Mitigations to Strengthen Mental Health. Web. 63 COPING. Children of Prisoners: Interventions and Mitigations to Strengthen Mental Health. Web. 2 July 2013. <http://coping-project. hud.ac.uk/publications/COPING-%20 D01.1_WP1-Survey%20Analysis%20 Results.pdf>.

64 In the United States, there is a bill of rights for the children of incarcerated parents. San Francisco Partnership for Incarcerated Parents. Children of Incarcerated Parents: A Bill of Rights. September 2003. Web. <www.fcnetwork.org/ Bill%20of%20Rights/billofrights.pdf>.

2. Prison’s invisible victims Imprisonment not only affects the inmate but also his or her family.

The CIDE Surveys of the Imprisoned Population show a high percentage of inmates have children. According to the 2009 survey, in the Federal District and the State of Mexico, 71 percent of men and 86 percent of women have children. In the case of federal prisons, the results for 2012 were similar: 79 percent of men and 88 percent of women have children. Between 2 percent and 3 percent of men in Federal District, State of Mexico and federal prisons said their wives or partners were also incarcerated; 25 percent of the female inmates said their husbands or partners were in prison. According to organizations such as the Quaker United Nations Office (QUNO), “The imprisonment of a mother or a father affects their children, usually in a negative way.”61 In this manner, children become the invisible and forgotten victims of incarceration.

The COPING project62 , financed by the European Union and based on more than 800 questionnaires, found that around a quarter of the children with a father in prison were at high risk of having mental health problems—a significantly higher number than among children in general.63 The government needs to take into account the rights of children when formulating criminal legislation so that they are not affected.64

41

Prisons in Mexico: What for?

b. Monetary cost The constant growth of the penitentiary population is a challenge for the policies of reintegration and the budgetary capability of the state.

According to the 2012 National Census of Government, Public Safety, and the Penitentiary System in the States published by INEGI, states spent 8.658 billion pesos ($670 million) during 2011 on prisons.65 This figure does not include federal prison costs.

If the total cost is divided by the total number of inmates in state and local prisons (172,615),66 in 2011 each inmate cost around 50,000 pesos ($3,865)67. This is 137.42 pesos ($10.60) daily.

One option to mitigate the monetary cost of prison (which has been a subject of debate since 2012) in Mexico is private investment in penitentiary institutions. There are currently private companies68 that have received concessions to build and maintain prisons, and to provide services such as food preparation and laundry operations. According to the now-extinct Public Safety Ministry (SSP), this could provide a savings of 29 percent69; however, there is no strong evidence or convincing arguments to back up this projection. *** Prisons represent a high societal and economic cost. Prison stays have considerable effects on the future prospects of convicts, even if they are imprisoned for just a short time. Their work possibilities upon leaving prison shrink and their chances of returning to their previous life of crime expand.

Why should we imprison people who commit non-serious crimes and why should we spend money to keep them in prison for treatment that will not result in their full reintegration into society, and that, on the contrary, has important negative consequences for the inmates and their families? It would be worthwhile to explore penalties other than incarceration, such as fines and community service.

65 INEGI found (in Tabulation 3.9) that the budget for state penitentiaries— excluding federal prisons—was 8,658,100,000 pesos, broken into the following categories: 4.7 billion (365 million) for personnel; 2.4 billion ($186 million) for materials and supplies; 741 million ($57 million) for general services; 121.5 million ($9.4 million) in subsidies and transfers; 279.1 million ($21.6 million) for acquisition of movable and real property; 59.75 million ($4.6 million) for public works; and 314.38 million ($24.3 million) for other expenses.

66 See Tabulation 3.5 of the 2012 National Census of Government, Public Safety and the Penitentiary System in the States, INEGI. 67 The exact number is 50,158.42 pesos.

68 In 2012, concessions were granted to the following companies: ICA, Tradeco, GIA, Homex, Prodemex, and Arendal. See: “The privatization of the prison system in Mexico.” Nexos: Editorial blog.

Web. <http://redaccion.nexos.com. mx/?p=3921>.

69 “IP [Private Sector] will save 29% in the operation of SSP penitentiaries.”Obrasweb, 2 Feb. 2012. Web. 6 Aug. 2013. <http://www.obrasweb.mx/ construccion/2012/02/02/la-ipahorrara-29-en-la-operacion-depenales-a-la-ssp>.

42

Prisons in Mexico: What for?

VII. How Can the Way Prisons Are Used Be Transformed?

Undeniably, one option to end overcrowding in Mexican prisons is to build more jails.

Nevertheless, this is not sustainable, for at least three reasons. First, it would only be a temporary solution, because if current crime patterns and judicial processes continue, in a few years prisons would be overpopulated again. Second, prisons have very high direct costs, including their construction and operation as well as the daily upkeep of the inmates. Third, prison has important indirect costs, such as the negative consequences incarceration has for inmates’ relatives and the general community.70 For these reasons, it is essential to seek alternatives to prison.

The above, along with this report’s previous explanation of how small sentences have criminogenic effects on inmates, shows why society should make incarceration a punishment of last resort for nonviolent minor crime. a. Public policy recommendations on how to transform the use of prison in Mexico 1. A deep overhaul of the penal code to eliminate incarceration as a punishment for some crimes It is important to note that the penal reform that has been in process since 2008 has not been accompanied by an overhaul in sentencing guidelines or penal code statutes.

70 United Nations Office on Drugs and Crime. Handbook of basic principles and promising practices on Alternatives to Imprisonment. Vienna: United Nations Office on Drugs and Crime, 2010: 5. Web. 71 UNODC, Handbook. 6.

72 Zepeda Lecuona, Guillermo Raúl. ¿Cuánto cuesta la prisión sin condena? (How Much Does Prison Without Conviction Cost?: Economic and social costs of pretrial detention in Mexico).

Monterrey: Open Society Institute, 2010.

2. Development of alternatives, both legal and organizational, to prison As the UNODC explains, “The reality is that most of the objectives of imprisonment can be met more effectively in other ways,” such as community service and fines, among others.71 It is necessary to develop alternatives such as community-based treatment programs and stays of proceedings. These changes must be accompanied by budget allocations and personnel to work with those released and ensure they receive their services, make their restitution payments, and fulfill the conditions of their release and their treatment.

3. Prudent use of pretrial detention As has been shown, pretrial detention is used intensively in the Mexican criminal justice system. A prudent use of pretrial detention has the potential to reduce the pressure on prisons.

It is estimated that a suitable use of pretrial detention would reduce its use 40 percent, without putting at risk the repayment of damages or the safety of the victim and society. 72 If 41 percent of the prison population today is in pretrial detention or has not been sentenced, such new policies could reduce the penitentiary population at least 16 percent—enough to end the system’s overpopulation and overcrowding problem.

4. To improve and institutionalize reintegration programs and techniques.

It is important to systematize activities in the areas of health, sport, education, and work based on progressive treatment. In addition, once the inmate leaves prison, the reentry process should be monitored and evaluated. Checks should be made to ensure that individuals who leave prison don’t break the law again, that they get legitimate work, avoid having contract with criminal groups, have a good relationship with their family members and loved ones, and stay away from prohibited substances such as drugs, among other things.

43

Prisons in Mexico: What for?

5. To conduct a review of the National Penitentiary System infrastructure Prisons can be reconditioned, optimized, expanded, adapted, and modernized.

Calderón’s 2006-2012 administration opted to build eight federal penitentiary centers73 with the goal of having enough federal prison space for the everincreasing number of inmates who commit federal crimes.74 Peña Nieto’s administration plans to build 10 more maximum-security prisons. However, if prisons are more suitably used, the construction of additions or new penitentiaries might not be necessary or only necessary in places with high prison occupancy and other issues related to the makeup of the prison population.

6. The professionalization of administrative, technical, and guard personnel A master plan of professionalization should be designed to develop the characteristics of prison jobs, generate the profiles of who should occupy them, and serve as a guide for personnel training and specialization. *** Transforming the reality of prison is an ethical imperative and a humanitarian emergency that we cannot ignore.

73 Zepeda Lecuona, Guillermo Raúl. “Diagnóstico del sistema penitenciario mexicano” (Assessment of the Mexican Penitentiary System). La transformación del Sistema Penitenciario Federal: una visión de estado (The transformation of the Federal Penitentiary System: A state View). Antonio Sánchez Galindo, coordinator.

Mexico: Centro de Investigación y Estudios de Seguridad, SSP (Center for Public Safety Research and Studies, Public Safety Ministry), 2012: 42. Web. <http://investigacionpolitica. iteso.mx/wp-content/ uploads/2013/02/SISTEMA_ PENITENCIARIO-SSP.pdf>.

74 Initially, the project called for the construction of twelve penitentiary centers. The centers are in Chiapas, Coahuila, Durango, Guanajuato, Michoacán, Morelos, Oaxaca, and Sonora. See: “In six months eight ‘super-penitentiaries’ will be finished.” Milenio. 2 July 2012. Web. 2 July 2013. <http://www.milenio. com/cdb/doc/impreso/9108673>.

b. The New Adversarial Criminal Justice System The New Adversarial Criminal Justice System is an example of a more rational use of the extreme punishment of prison in Mexico.

Traffic accidents, minor conflicts, and some nonviolent property crimes are being channeled to alternative forms of justice. This allows the victim to be indemnified, where agreements are made to repair harm, or conditions that must be satisfied by the accused are set. This has meant that property damage and minor crimes no longer are resolved through prison sentences, but rather through an alternative process or a stay of proceedings. The purpose of such a system is to only bring to trial cases involving violent crimes or those in which the parties involved could not agree to an alternative resolution.

The constitutional reform of June 2008 changed the parameters for pretrial detention. It sets conditions that must be argued before a judge by the parties involved; compulsory pretrial detention is limited to a few crimes, as is what is known as informal pretrial detention. The new pretrial detention regime is envisaged in the second paragraph of Article 19 of the Constitution.

The putting into practice of this constitutional regime in state and federal jurisdictions is beginning to show results.

The new adversarial criminal justice system already operates in 12 states. It operates statewide only in Chihuahua, Morelos, and the State of Mexico; in the other nine states, it is being phased in by regions and by crimes and other criminal matters. The results are beginning to be seen. States where the new system is progressing are seeing pressures on their prisons lowered.

44

Prisons in Mexico: What for?

Table 16. Population in pretrial detention, by crime, in states using the new adversarial criminal justice system, 2005-2013 Baja California Chihuahua* Durango Mexico* Morelos* Oaxaca Zacatecas National

2005

2006

2007

2008

2009

2010

2011

2012

2013

5,987

7,360

8,307

7,340

6,205

5,709

4,574

4,618

5,669

57.12%

58.27%

60.19%

53.32%

47.08

44.88%

37.77%

37.23%

41.47%

2,074

2,024

1,959

1,304

1,242

1,707

2,353

2,680

3,549

44.41%

43.93%

42.15%

33.67%

33.82%

42.73%

47.46%

46.74%

49.52%

1,136

1,395

1,504

1,388

1,241

866

948

800

1383

54.43%

60.65%

61.36%

56.19%

54.69%

57.35%

49.12%

42.08%

64.30%

6,989

7,384

7,315

6,680

6,847

6,884

5,813

5,471

5,283

43.61%

42.71%

44.52%

40.53%

40.91%

40.44%

34.70%

32.73%

31.65%

1,218

1,222

1,139

1,224

1,079

914

967

800

847

49.11%

46.77%

43.44%

47.26%

42.75%

35.09%

35.67%

30.46%

32.24%

1,927

2,053

1,868

1,931

1,675

1,791

2,084

2,293

2,339

49.45%

50.72%

51.33%

54.04%

48.38%

51.84%

56.46%

58.58%

61.02%

363

358

345

345

304

283

281

323

359

41.97%

37.18%

32.89%

33.01%

32.14%

30.93%

31.02%

35.61%

39.23%

69,762

71,553

70,718

69,562

70,222

71,710

76,195

72,187

75,069

45.20%

44.46%

43.05%

40.96%

40.50%

40.25%

41.27%

38.55%

39.24%

Source: Adapted from information from the Public Safety Ministry. 2005 to 2007 statistical annexes from federal government reports, with information from the Public Safety Ministry. 2008 to 2013, monthly notebooks of penitentiary statistics, Decentralized Agency for Prevention and Readjustment into Society, Public Safety Ministry.

Note: The years the new system has operated in are shown in red. * States where the new system operates statewide.

As seen in Table 16, in states using the new criminal justice system, the general tendency is to use less pretrial detention.

In Oaxaca, where the system operates in three of its eight regions, there has been an increase in pretrial detention well above the national average. However, it is important to note that in the two regions that have been using the new criminal justice system for more than four years— the Mixtec Region and the Isthmus—the reduction of the phenomenon is quite significant, on the order of 50 percent. In 2008, 40 percent of the prison population in those regions was in pretrial detention. In 2011, this figure fell to 23 percent. However, in the regions where the new system is not in place, a little more than 50 percent of the inmates are in pretrial detention.75 One state, but two different systems of criminal justice.

75 Based on information from the Public Safety Ministry.

76 Zepeda Lecuona, Guillermo Raúl.

Informe General: Proyecto de Seguimiento de los Procesos de Implementación de la Reforma Penal en México (General Report: Follow-up Project on Implementation Procedures of the Criminal Justice Reform in Mexico).

Mexico: Secretaría Técnica del Consejo de Coordinación para la Implementación del Sistema de Justicia Penal (Technical Secretariat of the Coordinating Council for the Implementation of the Criminal Justice System), USAID, and Justice Studies Center of the Americas, 2012:143.

In general, reducing the use of prison as a penalty and as a precautionary measure has lowered, in most cases, pressures on prisons. As seen in Table 17, the most notable case is of Baja California—which has the secondmost overloaded penitentiary system in the country, behind only the Federal District. Although the new system of justice is operating in only one of the four districts of the state (Mexicali), the State System of Alternative Criminal Justice (SEJAP) operates in the entire state; this has meant that people accused of minor crimes no longer are being put in pretrial detention. As a result, Baja California’s penitentiary system no longer is in the critical state of overpopulation it was in eight years ago. In other states such as Mexico state and Morelos, the pressures on the system have not dropped significantly, mainly because the entire potential of alternative justice and stays of proceedings has not been put into place.76

45

Prisons in Mexico: What for?

Table 17. Percentage of prison population in states using the new adversarial criminal justice system, 2005-2013 2005

2006

2007

2008

2009

2010

2011

2012

2013

Baja California

168%

185%

188%

186%

181.20%

117%

115%

111%

109%

Chihuahua*

128%

124%

113%

108%

108%

94%

92%

109%

134%

Durango

108%

112%

111%

110%

93%

70%

69%

76%

95%

Mexico*

184%

190%

183%

184%

189%

178%

176%

174%

170%

Morelos*

128%

132%

171%

169%

170%

157%

157%

162%

154%

Oaxaca

93%

85%

79%

83%

91%

93%

98%

99%

95%

Zacatecas

79%

77%

76%

76%

69%

51%

52%

54%

46%

129%

127%

128%

132%

134%

125%

123%

126%

129%

National

Source: Adapted from information from the Public Safety Ministry. 2005 to 2007 statistical annexes from federal government reports, with information from the Public Safety Ministry. 2008 to 2013, monthly notebooks of penitentiary statistics, Decentralized Agency for Prevention and Readjustment into Society, Public Safety Ministry.

Note: The years the new system has operated in are shown in red. * States where the new system operates statewide.

c. The European model versus the North American model Changes such as those proposed earlier are not unattainable.

The case of Finland clearly shows how the use of prison can be transformed through reforms. The size of the Finnish penitentiary system is much smaller than Mexico’s, but during the 1950s, Finland also misused its prisons. In those years, Finland’s incarceration rate was very similar to Mexico’s today. Between 1960 and 1970, the rate was reduced slightly but continued to be high in comparison with its neighboring countries; the rate was around 150 inmates per 100,000 inhabitants. Today, this number is around 70. What happened? The penitentiary system ceased to be seen as an instrument of deterrence or aimed at the elimination of crime. Prison became a method directed at minimizing the costs and injurious effects of crime.77 The criminal justice system in the United States shows the opposite. Its incarceration rate stayed stable from at least 1925 to the 1970s. From then and until at least 2000, its incarceration rate showed a sustained and accelerated growth. At the beginning of the 21st century, its incarceration rate per 100,000 inhabitants was more than four times higher than the average rate it had until the 1970s. This phenomenon is explained, partly, by increasingly harderline policies against victimless crimes—such as drug use—and the imposition of ever-longer sentences in state penal codes. As a result of these new state laws, people who committed minor thefts received longer prison sentences.78 Nevertheless, as seen in the case of California, there is no evidence showing that tougher sentencing laws reduce crime.

77 Lappi-Seppäla, Tapio. “Penal Policy in Scandinavia.” Crime and Justice 36.1, (2007): 217-231.

78 Zimring, Franklin E. “Penal Policy and Penal Legislation in Recent American Experience.” Stanford Law Review 58.1 (2005): 323-338.

46

Prisons in Mexico: What for?

VIII. Conclusions Prison is just one of many instruments the state has at its disposal to punish lawbreakers. In practice, however, prison seems to be the only instrument that gets used in Mexico.

The use of prison as a punishment in Mexico has been abused. Far from being a punishment only for those individuals who present a potential threat to society, prison has become the easy way for authorities to fight crime, paying no regard to its type or character. That is what the data in this report suggests.

In Mexico, 96.4 percent of the people who are convicted go to jail; the other 3.6 percent are fined or ordered to pay restitution. In addition, 41.3 percent of the people in prison are awaiting trial or a ruling. This abuse of prisons has caused a serious overpopulation problem in Mexico’s penitentiaries. Little by little, this has caused a reduction in the services covering the prison population, and a lack of adequate facilities for the psychotherapeutic and educational activities key to the prisoners’ reintegration into society.

Another relevant point is the type of sentences that wind up being served; most are for misdemeanors. Thus, prison, far from improving the law-and-order situation, has had the complete opposite effect. Someone who is jailed for petty theft will gain his freedom after three years (or less) but will face difficulties finding a job as a result of the stigma of having been in prison. In addition, the criminogenic effect of prisons means that the inmate very well could end up committing crimes that are more serious in nature.

Reentry into society from Mexico’s prisons is poorly carried out; indeed, the skills inmates learn most easily are those associated with additional criminal or violent conduct. Thus, when inmates are released, the possibility that they will fall into recidivism or be recruited by criminal groups grows.

Thus, prison represents a high social and economic cost that does not translate into a process of successful reintegration.

Reforms to the penitentiary system are urgently needed to curtail the growth of the prison population and reduce associated consequences.

Among other things, the penalty system needs to be rethought in order to make prison a punishment of last resort. A first step is to undertake a major overhaul of our penal legislation and to eliminate prison sentences for some non-serious crimes. Also, the system needs to develop punishments that do not involve incarceration such as community service and fines, among other things.

Given the complex security situation the country has been living through in recent years, in which the better part of the population lives amid organized crime rivalry and faces high levels of high-impact crimes such as murder, kidnapping, and extortion, it is understandable that society is on the defensive, incredulous of institutions, and seeking a punishment that serves as a public example—prison—for any offender, through retributive justice. It behooves us to reflect on the evidence presented in this report in order to understand that the ends that society seeks to protect and give priority to not only are not being met by the penitentiary system, but are actually endangered by it. What society attempts to punish, and avoid, using prison can turn against it in the medium term if the present inertia in the penitentiary system continues and Mexico does not learn from the experiences of other countries.

What are our jails for if we mete out similar punishments to people who commit a nonviolent theft and people who commit first-degree murder? Why do we use jails in Mexico if prison conditions are not creating the necessary climate to reintegrate inmates into society? What good are Mexican prisons if most of those who serve sentences of less than three years for minor crimes could easily merit alternative punishment?

It is time to transform the reality of prison in Mexico.

47

Prisons in Mexico: What for?

Acronyms

ANAP:

National academy of Penitentiary Administration

Cefereso:

Federal center of Social Readjustment

CEJA:

Justice Studies Center of the Americas

CNGSPSPE:

National Census of Government, Public Safety and the Penitentiary System in the States (INEGI)

Cereso:

Center of Social Readjustment

CIDE:

Center for Research and the Teaching of Economics

CNDH:

National Human Rights Commission

CNS:

National Safety Commission

COPING:

Children of Prisoners: Interventions and Mitigations to Strengthen Mental Health

DNSP:

National Diagnosis for Penitentiary Supervision

EJMP:

Criminal Justice Statistics (INEGI)

INEGI:

National Institute of Statistics and Geography

OADPRS:

Decentralized Agency for Prevention and Social Readjustment

QUNO:

Quaker United Nations Office

SEJAP:

State system of Alternative Criminal Justice

SSP:

Public Safety Ministry

UNODC:

United Nations Office on Drugs and Crime

USAID:

U.S. Agency for International Development

México Evalúa, 2013

www.mexicoevalua.org

* Translation into English has been sponsored by the Center for U.S. Mexican Studies at UCSD.