Mexican standoff.

The law, lawyers, and the court.
Dec. 14 2005 5:09 PM

Mexican Standoff

The complex—and imbalanced—legalities of cross-border justice.

Mexico and the United States, while connected like hermanos siameses by one of the longest continuous land borders on the planet, are miles apart in terms of how they think about the rights of criminals—both foreign and domestic. These differences can be boiled down to a simple, almost shocking statement: The Mexican government believes that American criminals in Mexico have a right not to be killed—anywhere—while the U.S. government supports killing Mexican criminals who are in the U.S., even if they've been provided something less than their full range of legal protections. Recent high-court activity in both countries highlights this disparity and points to a continuing impasse in larger arenas. Unfortunately, this growing schism will likely complicate legal, diplomatic, trade, and even counterterrorism initiatives.

On Dec. 9, on the eve of International Human Rights Day, Mexico's President Vicente Fox formally celebrated his country's purging the last vestiges of capital punishment from its legal system. This celebration may have been a bit overblown, or at least late in the day, as Mexico has not actually executed anyone since 1961. But capital punishment was officially still on the books there until last Friday, when the government published changes to Mexico's Constitution, which now reads: "The death penalty, mutilation ... whipping, beating, and any form of torture ... are prohibited."

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Since assuming office, Fox has wanted to be seen as a human rights defender. One of his preferred methods has been a systematic refusal to extradite anyone to the United States who may face the death penalty. He can even point to a bilateral treaty encouraging this stance. Fox has also fought the extradition of suspected prisoners who face life imprisonment without the possibility of parole.

But two weeks ago, in a little-noticed decision, Mexico's Supreme Court complicated that agenda. And made some American officials very, very happy. In a 6-5 decision, Mexico's highest court ruled that criminals facing life imprisonment without the possibility of parole in their home countries may now be extradited. This ruling overturned a 2001 decision that had gone exactly the other way.

To understand this change requires first recognizing that Mexico's Constitution regards imprisonment as a means of rehabilitating criminals, rather than punishing and deterring them. Its Article 18 in particular recognizes only "social readaptation" as the goal of doing time in a Mexican prison. This cheery, future-oriented approach readily distinguishes Mexico's system from the U.S.'s, which follows more of a "lock 'em up, then lock 'em up some more" philosophy.

The Mexican high court's reasoning in 2001 sought to comply with Mexico's ban on cruel and unusual punishment—particularly in instances where the suspect could be extradited to a death-penalty-loving nation. The majority essentially argued that by executing someone, or by eliminating the possibility of their ever leaving prison, the state cruelly interfered with the "readaptation" function required by Article 18. That ruling, unsurprisingly, led some American crime suspects to flee to Mexico to avoid punishment in the United States. And that ticked off American law enforcement officials.

Something changed between that 2001 decision and last week's—most notably an aggressive campaign by U.S. politicians to undo Mexico's extradition ban. Indeed, Southern California law enforcement officials, apparently untroubled by usurping the federal government's foreign-affairs power, took credit for the Mexican court's recent decision. "This is the culmination of three years' work by our office and many others," said a staffer for the L.A. County District Attorney.

Not to be left out, Congress also went to work to subvert Mexico's liberal, rehabilitation-based views on crime. In the days leading up to last week's decision, U.S. lawmakers were busy slashing foreign aid for any country refusing to extradite suspects who had committed certain types of crimes. Conservative journalists correctly deemed this "a warning to the Mexican government." And just before the high court's ruling, President Bush signed a massive foreign-aid bill and hinted at the possible cancellation of up to $40 million earmarked to Mexico in FY06.

Finally, the writing was on the border fence in late November, when Mexico's Consulate General announced that Raul Gomez-Garcia—accused of killing a Denver police officer—could be extradited to the United States. This was a big retreat from Mexico's position as recently as last June—when it had flatly refused to extradite Gomez-Garcia if the Denver DA planned to bring charges carrying either the death penalty or a life sentence without the possibility of parole.

Mexico is moving further away from President Fox's stance on the death penalty—a stance agreed upon, as it turns out, by just about the entire rest of the planet—and closer to the U.S.'s "punish or perish" jurisprudence. Are the courts there trying to appease the White House? Annoy Fox? Whatever the cause, something here is weirdly imbalanced.