Excerpt (endnotes removed): “Latin America and the Adversarial System: U.S. Involvement in Latin American Criminal Justice”

Overview: New Procedures and U.S. Involvement For the past two decades, Latin America has gradually turned from the traditional inquisitorial criminal justice model to the adversarial model. Though several countries still retain the inquisitorial system, where written procedure is paramount and the judge acts as an active investigative agent in the proceedings, at least fourteen countries to date have written new criminal codes implementing the adversarial system, which is based on oral arguments, a passive judge and an active prosecutor. The codes focused on increasing transparency, impartiality, protecting victims, and shortening the lengthy judicial process. According to Máximo Langer, Professor of Law at UCLA, these new codes were advocated by an activist expert network of Latin American lawyers who secured international financial backers for the new codes and thus insured their implementation. These backers included the Inter-American Development Bank and USAID. USAID has aided in the implementation of adversarial procedures in several countries, most heavily Mexico, Paraguay, Ecuador, and El Salvador. The USAID news brief on the project in El Salvador, which ran from 2008-2012 and was budgeted at $8,525,021, provides insight into the standard approach and tactics utilized in such projects. According to the brief, USAID has focused on improving coordination between the National Civilian Police and the Attorney General’s Office. Most likely, this mediation seeks to accustom the police to the newly aggrandized role of the prosecutor under the adversarial system. Further, USAID has sought to accustom citizens to the new system by engaging local communities in crime mapping, crime prevention plans and school-based activities like sports leagues, mock trials, and shadowing police officers. The news brief also notes that the mission has created specialized units to address rape and homicide, provided training in the new Criminal Code to almost 30% of mid-tier police officers, and created a Criminal Prosecution Policy, which identifies crimes which should immediately investigated and crimes which should be regulated to mediation. Evaluation of the New Procedures Evaluation of the new adversarial procedures, quantitative or qualitative, is difficult to find. There does not appear to be any comprehensive compilation of conviction rates for these countries, at the time of transition to the new system or to date, and some statistics vary according to the source. For example, when comparing rates of overcrowding in prisons today, the U.S. Department of State’s Human Rights Reports and the World Brief from the International Center for Prison Studies occasionally differed. Though the dates sometimes differed by a few months (for example, the first was dated in late 2012 and the latter in early 2013), the significant differences in a few of the statistics lend slight uncertainty to the reliability of these numbers. Further, for many countries, the Human Rights Reports did not start reporting specific statistics until 2005, making it impossible to compare current pretrial detention and overcrowding rates with rates at the exact time of implementation. Nonetheless, when comparing pretrial detention and overcrowding rates for 2005 and 2013, a distinct trend emerges. Of the fourteen countries which have transitioned from inquisitorial to adversarial, five have seen a decrease in their prison overcrowding rate, and eight have seen a decrease in their pretrial detention rate. As a heavy backlog of unresolved cases – which result in overcrowded prisons and lengthy pretrial detention time, since judges can take

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years to reach a defendant’s case – has often been a major complaint against the inquisitorial system, since its reliance on written procedure causes serious delays in trial procedure, these decreases could certainly be correlated with the changes in these countries’ criminal codes. After all, the adversarial system has been implemented specifically to address lengthy judicial proceedings, among other things. Even more telling, of the four countries which have seen both decreased pretrial detention rates and decreased overcrowding rates, all have been recipients of aid from the United States. Ecuador has seen prison overcrowding decrease by 4% since 2000 and the pretrial detention rate decrease by 23% since 2005. Chile has seen prison overcrowding decrease by 45% since 2000 and the pretrial detention rate decrease by 23% since 2000. Colombia has seen prison overcrowding decrease by 48% since 2000 and the pretrial detention rate decrease by 22% since 2005. Mexico has seen prison overcrowding decrease by 24% since 2000 and the pretrial detention rate decrease by 2% since 2005. In fact, a fifth recipient of aid from the United States, Paraguay, can only not be included among these four because there is no information about its overcrowding rate before 2012. However, the Paraguay pretrial detention rate decreased 21% since 2000. United States aid to these countries has been significant. Prosecutors, police and judges in Ecuador have received training from the American Bar Association on the new criminal code, and the USAID has recently unveiled a program to continue criminal justice reform work. In Chile, according to a USAID report, USAID was instrumental in both creating and implementing a new adversarial criminal justice procedure. Mexico has received significant financial and personnel assistance from the United States State Department through the Mérida Initiative. Colombia has been the recipient of numerous USAID projects, beginning in 1992 to the present. Finally, Paraguay has also received significant financial and personnel aid from USAID. Independent reports on the criminal justice systems in Mexico, Paraguay and Chile confirm the statistics mentioned above. Chile has seen an increase in defendant’s rights and even a positive effect on local economic development. Mexico has seen reduced victimization, better trust in the Prosecutor’s Office, a decrease in instances of bribery and an increase of crime reporting; Paraguay has seen the conviction rate increase from 74.6% in 1996 to 92.1% in 2000. Even Colombia has seen some improvements in the justice sector, but the authors of the study insist that the lack of reliable statistics in Colombia limit real evaluation of progress. Of the other nine Latin American countries surveyed that did not see both pretrial and overcrowding rates decrease, six have also been the recipients of U.S. aid. However, for three of these countries (Haiti, Nicaragua and Peru), I could find no evidence of a criminal justice-centered component to these USAID missions. True, the other three of the six countries (El Salvador, Guatemala, and Panama) have received assistance specifically aimed at implementing the accusatory criminal justice system. Guatemala was a puzzling case. The USAID website claims that they have “established a high-impact court and public prosecutor office” as well as “established the use of justice reform tools, including oral trials and the Criminal Procedures Code.” However, I was unable to find any quantitative analysis of these claims, and thus I was unable to conclude why Guatemala has not seen both pretrial and overcrowding rates decrease. Yet for El Salvador and Panama, both criminal justice missions are relatively new. As mentioned above, the mission to El Salvador was only begun in 2008, which is much later than the missions to Paraguay, Chile, Colombia and Mexico, the first three of which all began in the 1990s, and the latter began in 2004. Panama’s Judicial Transition Initiative is newer still; the adversarial criminal code is only in effect in two of the country’s provinces as of 2012, though

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four other provinces will adopt the adversarial system by 2014. It is possible that these missions have not been in effect long enough to impact overcrowding and pretrial statistics as of yet. However, the mission to Ecuador is also relatively new, and Ecuador has experienced a decrease in both overcrowding and pretrial detention rates. Perhaps in future years, after these three missions have been evaluated, social scientists will be able to identify the relevant mission differences separating Ecuador from Panama and El Salvador. In short, Latin American countries that have transitioned from inquisitorial to accusatorial systems of criminal justice have seen mixed success. Some have seen decreased pretrial detention and prison overcrowding rates, while others have actually seen increased rates. However, all four countries that have seen a decrease in both have received USAID assistance specifically targeted at criminal justice reform, and a fifth recipient can only not be included because statistics are not available on overcrowding (Mexico, Ecuador, Chile, Colombia, Paraguay). Further, quantitative independent reports have confirmed that in three of these countries – Mexico, Paraguay, and Chile – the new criminal justice systems have produced increased reporting of crimes and transparency, and an increased conviction rate, and increased respect for defendants’ rights, respectively. Colombia has also seen some improvements, though the evidence is qualitative and the authors of the study caution that their results lack quantitative backing. Finally, Ecuador is still a relatively new mission, and so though improvements may have been made, there is not yet analysis to determine the mission’s efficacy. Chile According to a USAID’s “Achievements in Building,” the USAID mission to Chile began before the new, accusatory criminal code was even implemented. In fact, USAID provided aid to Chile from 1988-96, and was “a niche leader” in a country where “no one else was working on justice reform.” USAID then convened the round-table discussion about criminal justice which eventually resulted in the drafting of a revised criminal procedural code. This revised criminal procedural code was passed by Congress in 2000, and this adversarial code is in effect today. Further, USAID generated public support for the new code, assisted in the implementation of public, oral trials and strengthened the public defender’s office. The report cites no quantitative evidence of the mission’s success, but claims that defendants now seem more involved in the judicial process, that public trials are well attended, and that the judiciary seems more independent. Social scientist Lydia Brashear Tiede’s independent study of Chilean criminal law reform supports the report’s claims. According to Tiede, her original data sets show that the amount of individuals incarcerated – specifically the amount of detenidos, or individuals waiting to see a judge within five days of their arrest – has decreased. Thus, writes Tiede, defendants’ rights have been increased since fewer people are languishing in prison awaiting trial. She cites the Chilean government’s commitment to implementing the reforms “unprecedented in the region” – they devote 2% of the national budget to justice reform continuously – and cites their involvement as a possible reason for the new procedural code’s success. Tiede notes that the new criminal justice system even seems to have had a positive effect on regional economic development. In short, Chile’s new criminal justice system seems to be effective, and USAID instrumental in its implementation. Paraguay

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In 1990, Jesse Casaus and Henryk Montygierd-Loyba compiled a report on the state of the criminal justice system in Paraguay. As Paraguay did not create an adversarial criminal justice system until 1997, this report was written while the existing system was still inquisitorial. The report decries the unacceptable “disregard for required action on a timely basis,” a common complaint of the inquisitorial system, as mentioned above. It noted that the criminal justice system suffered from a significant backlog of cases, judges that only worked 7 a.m. until noon, lack of uniform procedures, and total disregard for procedural deadlines. In 2002, Luis Salas compiled a report on the state of the criminal justice system in Paraguay since the USAID mission. According to Salas, U.S. support began in 1992, when USAID and Paraguay’s Public Ministry developed a joint team of prosecutors and foreign consultants to write the new criminal code. The joint team created workshops in eight of the nine judicial regions in Paraguay to get public feedback on the code; after the feedback was considered, the code was completed in 1996 and implemented in 1997. The reforms primarily focused on moving the judiciary from an active participant to a neutral role, creating public trials, giving the prosecutor the ability to determine charges and use non-trial alternatives, emphasizing pretrial release over incarceration, and including the victims in the criminal justice process. According to Salas, USAID played an instrumental role in making this new criminal code a success. USAID was the only donor for the first eight years of the reform process. Salas notes that USAID awarded the first contracts to Paraguayan institutions to offset worries about foreign intervention. Then, from 1996-98, USAID awarded $868,000 to the State university of New York Foundation to assist Paraguay in its reforms. From 1998-2000, USAID awarded the National Center for State Courts $1.164 million to meet similar goals. Later in the reform process, Paraguay received $33.9 million from the Inter-American Development Bank, and some money from Germany and the European Union. The USAID task force initially focused on a program to eliminate the substantial backlog of cases, and succeeded in reducing the 182,931 criminal cases pending to 18,258 by 2000 – just 10% of the original total. Further, USAID contractors trained 549 justice officials who accepted the new criminal code without difficulty. Salas speculates that their acceptance can be explained by two factors: 1) the reforms coincided with the end of a long dictatorial period, allowing the new criminal code to be associated with democracy and modernization, and 2) the elimination of all but 10% of cases convinced overworked justice officials that the new system was more effective than the former. Finally, USAID implemented a computerized system for assigning cases to keep judicial corruption at a minimum. The results of these efforts were positive on the whole. As noted above, the case backlog decreased to just 10% of its original amount. The conviction rate increased to 92.1% in 2000 from 74.6% in 1996. The length of the criminal process was reduced by 75%. In terms of qualitative evaluation, Salas claims that transparency has improved; victims are kept updated and included in all proceedings, and all interested parties in a case can access all documents submitted to the judge. He does acknowledge that 90% of Paraguayans felt corruption was worse in 2001 than in 2000. However, the evidence can still be considered to overwhelmingly endorse the new, adversarial system as more efficient than the former, inquisitorial system. Mexico The United States has also had considerable involvement in the Mexican transition towards the adversarial criminal justice procedure. The Mérida Initiative, a $1.6 billion State

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Department project that focuses heavily on Mexico, was started in 2007 and is still active. Mérida has supplied Mexico, El Salvador, Guatemala, and Panama with institution building assistance, community outreach assistance, and equipment. For example, the US has supplied helicopters, biometric equipment, and forensic lab equipment to Mexico, and has trained 4,000 police graduates from Mexico’s federal police training facility. Though the project focuses on overall assistance in security and criminal justice matters, this certainly includes supporting the judicial reforms of 2008, which requires all Mexican states to change their criminal justice system from an inquisitorial to an accusatorial system by 2016. In July 2011, seven states had an adversarial system, and four more were expected to introduce the adversarial system by 2011. The reforms focus on four main tenets: oral procedures, greater emphasis on the rights of the accused, modifications in police agencies’ role in criminal investigations, and tougher measures for combatting crime. According to social scientist Luisa Blanco, the judicial reforms have met with some tangible successes. By evaluating criminal data from 2005, 2008, 2009 from 11 cities, she determined that first, the judicial reforms have reduced victimization, which she attributes to the fact that individuals are more likely to report crimes, meaning criminals are more likely to be caught and thus less likely to risk the crime in the first place. This is supported by the Latin American Public Opinion Project, conducted in 2011, in which only 17% of the population admitted to being a victim of a crime in 2004, whereas 26% admitted to being a victim in 2010. Second, the Public Prosecutor’s Office is better perceived by the population, with the exception of one city, and there is a significant decrease in bribery of police in northern Mexico. Third, the author found a significant increase in crime reporting in the province of Chihuahua, though it decreased in the city of Juarez, and an increased probability that the Public Prosecution Office would investigate the reported crime. Corroborating these findings, USAID called Chihuahua’s penal code “the most advanced, progressive criminal justice code in Latin America” in 2007. However, Blanco did note some negative findings. She found decreased trust in local police, and in a 2011 survey of Chihuahua, only 15% of respondents had heard of the judicial reforms, and only 8% believed they would improve the judicial system. In addition, Blanco found that perceptions of security had deteriorated rather than improved. Further, several Mexican states experienced an increased homicide per 100,000 rate from 2006-2010. Finally, according to lay journalist Dawn Paley, the public and even the judiciary is not entirely behind the new reforms. Paley claims that “More than half of the respondents – especially judges – indicated that Mexico’s traditional inquisitorial system was both efficient and effective, and at least a third feel that the traditional system was disparaged by a deliberate, negative campaign designed to promote a shift to the new adversarial system.” She criticizes the emphasis on the punitive within the new system, and questions whether it benefits the average citizen. Yet the quantitative improvements documented by Blanco cannot be denied. Though the Mexican citizenry may not be as accepting of the adversarial system as quickly as the Paraguayans, they have had neither of the incentives (association with democracy and impressive slashing of the case backlog) that the Paraguayans experienced. Overall, considering the gradual implementation of the adversarial system, the gradual improvements in the criminal justice process are entirely reasonable.