Mexican “decriminalization” as seen from Mexico

I asked a colleague, a criminologist law professor at CIDE in Mexico, about the new drug law the media won’t allow Mark to enlighten them about, and he had some interesting insights from a local perspective.

From Roberto Hernandez:

The new legislation was passed with the purpose of directing enforcement efforts to retail distribution, and away from consumption. There seems to be a good reason: of the 37,064 persons who were detained by the federal police on drug charges in 2005, 27,428 were arrested for possession or consumption. However, I doubt that it will have the desired impact, for the following reasons:

1. THE AMOUNTS ARE SO TINY THAT IT’S ASKING TOO MUCH DISCERNMENT FROM THE POLICE. This was the second time Fox attempted to pass legislation; it earned approval because the amounts were reduced. The state police—which previously had no jurisdiction in these cases—would require serious training to administer the new law, and very precise scales. I worry about this; in cases we have studied in detail, we’ve learnt that they cannot distinguish a gang from organized crime. I’ve seen three street kids who stole an old belt from a senior citizen convicted for “organized crime”. The new legislation, which requires the cops to distinguish addiction from small scale trafficking is simply asking too much discernment from the police.

2. THE LAW INCORRECTLY ASSUMES THAT THE MEXICAN JUSTICE SYSTEM IS FUNCTIONAL. But there’s widespread corruption in the Mexican police, so the law amplifies the opportunities the state police has to receive bribes from citizens. Because the new law authorizes any state policeman to deal with drug trafficking cases, it exposes virtually any citizen to police misconduct. In the Mexican justice system, it all boils down to how much money the arrestee has at the moment of detention. This portion of the law is sure to expand the sources of income of state policemen.

3. CASES TO BE TRIED UNDER AN OBSOLETE CRIMINAL PROCEDURE LAW. The new law requires states to prosecute defendants under the federal code of criminal procedure, an obsolete legislation that requires all evidence to be submitted in writing. This causes defendants to never have a chance to tell their story. In Mexico, 80% of defendants never saw the judge who sentenced them, only typists and court secretaries from behind bars. Some states have passed laws requiring that trials be public adversarial proceedings, as opposed to the entirely written and obscure criminal justice process we have today. This created a window of transparency that made corruption and police misconduct much harder to get away with. However, the new law forces even these states to use the federal procedure. So if a cop catches you, you can be accused and convicted as a drug dealer, especially if you are the unlucky one who had no money, or the one the police needed to plant the drugs on, to bolster their statistics.

In conclusion, perhaps the same people will continue to be tried, except that this time the police might be successful at making defendants seem as if they were drug dealers.


• According to an inmate survey by CIDE, in Mexico, 37% of convicts took drugs or alcohol within 6 hours of committing a crime. Of them, 80% took alcohol, 20% other sorts, 6 hours before committing the crime.

• The Mexican justice system is bribable and this makes policy design complicated. About 40% of inmates report that the policeman or detective who arrested them asked them for money (since this is an inmate survey, we have no information about successful bribes). Only about 8% of convicts in Mexican prisons were accused of drug related crimes. We have no idea how many escaped the justice system through bribes, but we are aware that the frequency of corruption is huge at the state police levels.

• The new law hopes to focus efforts on retail enforcement rather than consumption. Mexico City prisons already have exceeded prison capacity by 40%, although the proportion of inmates that are there for drug-related crimes is a minority.

Author: Michael O'Hare

Professor of Public Policy at the Goldman School of Public Policy, University of California, Berkeley, Michael O'Hare was raised in New York City and trained at Harvard as an architect and structural engineer. Diverted from an honest career designing buildings by the offer of a job in which he could think about anything he wanted to and spend his time with very smart and curious young people, he fell among economists and such like, and continues to benefit from their generosity with on-the-job social science training. He has followed the process and principles of design into "nonphysical environments" such as production processes in organizations, regulation, and information management and published a variety of research in environmental policy, government policy towards the arts, and management, with special interests in energy, facility siting, information and perceptions in public choice and work environments, and policy design. His current research is focused on transportation biofuels and their effects on global land use, food security, and international trade; regulatory policy in the face of scientific uncertainty; and, after a three-decade hiatus, on NIMBY conflicts afflicting high speed rail right-of-way and nuclear waste disposal sites. He is also a regular writer on pedagogy, especially teaching in professional education, and co-edited the "Curriculum and Case Notes" section of the Journal of Policy Analysis and Management. Between faculty appointments at the MIT Department of Urban Studies and Planning and the John F. Kennedy School of Government at Harvard, he was director of policy analysis at the Massachusetts Executive Office of Environmental Affairs. He has had visiting appointments at Università Bocconi in Milan and the National University of Singapore and teaches regularly in the Goldman School's executive (mid-career) programs. At GSPP, O'Hare has taught a studio course in Program and Policy Design, Arts and Cultural Policy, Public Management, the pedagogy course for graduate student instructors, Quantitative Methods, Environmental Policy, and the introduction to public policy for its undergraduate minor, which he supervises. Generally, he considers himself the school's resident expert in any subject in which there is no such thing as real expertise (a recent project concerned the governance and design of California county fairs), but is secure in the distinction of being the only faculty member with a metal lathe in his basement and a 4×5 Ebony view camera. At the moment, he would rather be making something with his hands than writing this blurb.

4 thoughts on “Mexican “decriminalization” as seen from Mexico”

  1. 37% of convicts took drugs or alcohol within 6 hours of committing a crime
    That's a large window. What % of a comparable population used drugs within a 6 hour (12 if bidirectional?) window, including alcohol?

  2. Yes, and 95% of them travelled somewhere just before they committed a crime. The conclusion is obvious- travel must be prohibited.
    It is to laugh.

  3. Piecemeal reforms are something unique to Mexico? Given that congress is divided, and after the elections will still be divided, piecemeal reforms like the one President Fox had to veto are the best that can be expected.
    Roberto Hernandez points out definite flaws with the judicial system here, but I don't recall that this law addressed the problems of rules of evidence.
    If Mexican drugs are such a problem for the U.S., you can stop buying them (after all, you're the world's single largest consumer)… and, you can grow your own. Since your corporate agriculture and subsidized exports are forcing all our other farmers off the land, you can do the same with the poppy and marijuana farmers — some of the few growers still able to compete on the open market.

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