La Semana: Sunday, Feb 20
The week in supreme court rulings, corruption scandals and the "4T"
Welcome to the Sunday edition of The Mexpatriate. In today’s newsletter:
Pretrial detention is limited in ruling by Supreme Court
Emilio Lozoya: guilty of keeping the bribes he confessed to taking
What is “la cuarta transformación?”
Please send me your comments, feedback and questions, and feel free to forward this to anyone who may be interested. You can always find all sources (with links) at the bottom of the email.
Pretrial detention is limited in ruling by Supreme Court
“For guilt and crimes are so frequent in this world that they cannot all be punished. But if innocence itself is brought to the bar and condemned, perhaps to die, then the citizen will
say, ‘whether I do good or whether I do evil is immaterial, for innocence itself is no protection,’ and if such an idea as that were to take hold in the mind of the citizen that would be the end of security whatsoever.”
John Adams, 1770
Álvaro is a 53 year-old tinsmith who has been in prison in Mexico City for three years awaiting trial. Police picked him up because he was driving a car witnesses claimed was similar to one used to rob a milk delivery truck. The initial charge was robbery, but unfortunately for Álvaro, it was then changed to secuestro express (express kidnapping) which is one of the crimes that merits prisión preventiva oficiosa (automatic pre-trial detention). Álvaro’s case was brought to the Mexican Supreme Court (SCJN) in July 2021 and on Feb. 9, the court ruled that pre-trial detention should be reviewed by a judge after two years and can be revoked, regardless of the severity of the alleged crime. This allows for Álvaro’s possible release. In anticipation of the court’s ruling, Netzaí Sandoval, the director of the Federal Institute for Public Defense (IFDC), described this decision as potentially “historic”. There are at least 900 similar open cases, according to the federal agency, in which defendants have been in prison awaiting trial for anywhere between four and eighteen years.
“Yes, clearly the Constitution says that for these kinds of crimes automatic pre-trial detention is indicated at the beginning of the process, but this does not mean that it can be extended indefinitely,” explains Sandoval. The Constitution also declares that the maximum period a person can be imprisoned without trial is two years, so how has this happened?
Pretrial detention has been one of the Constitutional medidas cautelares or “precautionary measures” available to Mexican prosecutors in the pursuit of suspects since 1917. Of course, it is not unique to Mexico, and is both used and abused worldwide: according to the NGO Fair Trials, 3 million people globally are being held in prison without trial right now. In the United States, according to 2019 data, two-thirds of prison inmates are awaiting trial. One salient difference: courts are required to determine there is probable cause and that no other release conditions will assure the defendant’s appearance. In a number of states, hearings are required to make this determination and there are custody time limits. The U.S. has the largest rate of incarcerated citizens in the world (639 per 100,000 in 2021), though it has started to trend downward in the last decade. Criminal justice reform advocates repeatedly point to pretrial detention as one of the urgent problems faced by the poorest and most disadvantaged in the country.
In legislation enacted in 2019 in Mexico, the number of criminal charges meriting automatic pretrial detention was expanded to include twenty offenses. The judges who reviewed Álvaro’s case before it reached the Supreme Court argued that because of this, their hands were tied: even though by law he had been detained for longer than allowed, the crime he was accused of committing required his imprisonment. Even when prosecutors bring the request of pretrial detention to judges for crimes that do not invoke automatic detention, a study by the NGO Intersecta concluded that 9 out of 10 judges will grant prisión preventiva justificada.
Incarceration rates increased by 3.1% in 2020—the biggest increase in 15 years--and according to official data, of the 108,655 people newly imprisoned in 2020, 85% of them had not yet been tried. In Mexico City, 100% of new inmates in 2020 were “presumed guilty”, in prison awaiting trial. The government likes to tell a different story: the prosecutor’s office in CDMX gloated in October last year that 63 people go to prison every day thanks to prisión preventiva, as a demonstration of an administration tough on crime. In a country where insecurity consistently ranks as the top concern of the average citizen, it is reassuring to think that criminals are being taken off the street and to ignore the trampling of human rights. That is, until your own are ignored.
Gabriela Santiago, one of the women interviewed in the Intersecta report, was told by her public defender that she should declare herself guilty of the crime of theft (of $100 pesos), despite her protests of innocence, because she would end up spending less time in prison carrying out the sentence than awaiting trial. Another woman interviewed spent over four years in prison, accused of human trafficking and organized crime, which legally invoke automatic pretrial detention. She eventually was found to be innocent.
In a judicial system already notorious for de facto presumption of guilt rather than innocence, the wider use of prisión preventiva has poured fuel on a slow-burning fire. The intention of the 2019 reform was to make it harder for high-profile suspects to flee the country and was presented as a weapon in the president’s arsenal against corruption. Instead, evidence clearly demonstrates it has been used against the poor, the marginalized and the easily forgotten. According to INEGI (National Institute of Statistics and Geography) data, 71% of those in pretrial detention are artisans or work in the informal economy and report having to work seven days a week to survive. Most have only a middle school education.
Edna Jaime, director of the think tank México Evalúa noted in a Feb. 17 op-ed: “The court’s ruling will be positive changes…it will give many the chance to regain their freedom, which they never should have lost…The most important change, however, will be a cultural one. To dismantle the thoughts of vengeance and transform them into ideals of justice…For this to happen we need for justice to function. This should be our cause. Our indifference speaks volumes.”
Emilio Lozoya: guilty of keeping the bribes he confessed to taking
After a five-year investigation, the Mexican Attorney General’s Office (FGR) concluded that the ex-CEO of Pemex, Emilio Lozoya, personally retained the $10 million USD in bribes given to him by the Brazilian construction giant, Odebrecht. Lozoya alleged that he had been instructed to use the money to facilitate the passage of energy reform laws in 2013 but investigators found instead evidence of his personal use of the monies. The bribes were part of Odebrecht’s strategy to be awarded contracts in the modernization of the Tula refinery owned by Pemex.
A Brazilian prosecutor on the case described the Odebrecht operations as a “thing of criminal beauty.”
The Lozoya case has been one of the highest-profile in this administration’s proclaimed battle against corruption, connecting a number of top Mexican politicians and officials to the kraken of international corruption scandals known as Odebrecht. The nefarious business tactics of the giant Brazilian company were uncovered in 2014 and in the years since, heads of state and other prominent figures across Latin America have been exposed. The company had a bribery division devoted exclusively to assuring access to contracts by paying off officials all over Latin America and the Caribbean: the company paid out $780 million USD in bribes since 2001.
“Odebrecht … used a hidden but fully functioning Odebrecht business unit — a ‘Department of Bribery,’ so to speak — that systematically paid hundreds of millions of dollars to corrupt government officials in countries on three continents,” explained a deputy assistant US attorney general. A Brazilian prosecutor on the case described the Odebrecht operations as a “thing of criminal beauty.”
Lozoya was extradited to Mexico from Spain in 2020 and became a “protected witness”, allowing him to avoid jail while supposedly providing prosecutors with information on other corrupt officials. This arrangement ended abruptly in November 2021 when he was taken to prison after a judge granted pre-trial detention (prisión preventiva justificada). He remains there today. Shortly before his arrest, Lozoya had been spotted and photographed having dinner at a swanky restaurant in Polanco, which created a furor in national headlines and embarrassed the administration’s anti-corruption position.
Prosecutors have asked for the judge to inflict maximum penalties on Lozoya, which could mean up to 46 years in prison without possibility of parole.
What is “la cuarta transformación?”
If you’ve spent any time perusing Mexican news or trying to engage in the national conversation, you will inevitably have encountered “la cuarta transformación”, sometimes abbreviated to “La 4T.” The term has become as loaded as “Make America Great Again”: aspirational for one political tribe while mocked by the other. Unlike most political slogans however, this phrase references the policies of President López Obrador and his party (MORENA), as well as the social movement behind them. The concept of “la cuarta transformación” was first used by AMLO on the campaign trail in 2018: “We will undertake a peaceful, orderly transformation, but no less profound than the [War for] Independence, the Reform and the Revolution; we have not come this far to make superficial changes, and much less, to have more of the same.” His landslide victory in 2018—after his third run for the presidency—brought a leftist government into power for the first time in decades.
The president’s platform has always made use of sweeping rhetoric and relied on a David vs Goliath narrative of the Mexican people fighting the corrupt ogre of “neoliberalism”, but the concrete details of goals, policies and structural reforms are often glossed over.
The three previous “transformations” were notably violent and did irrevocably change the country’s power structure. In 1810, New Spain embarked on a war for independence after 300 years of colonial rule. It took eleven years and cost up to 500,000 lives; by 1824, the first president of the United Mexican States (Estados Unidos Mexicanos), Guadalupe Victoria, was elected by congress.
The Reform war from 1858-61 pitted liberals promulgating the Constitution of 1857 that separated church and state against conservatives aligned with the Catholic church and the Mexican army. The liberals and their leader, Benito Juárez, won the war, then lost the country to a French intervention and brief rule by a puppet emperor (Hapsburg archduke Maximillian). Maximillian was executed in 1867 and Juárez was president until his death in 1872.
The Revolution of 1910-20 toppled the dictatorship of Porfirio Díaz and birthed the Constitution of 1917, which continues in effect today. The war devastated the country with an estimate of 1.4 million lives lost to violence, disease (the notorious influenza epidemic of 1918 killed approximately 500,000) and starvation. One of the prominent political legacies of the Revolution was land reform, which redistributed lands that previously had been owned by a handful of hacendados and worked, in a form of serfdom, by campesinos.
What are the radical changes of the 4T? The broad strokes of AMLO’s ambitious “transformation”:
The war on corruption, impunity and the “mafia del poder” (the mafia of the powerful)
The end of the “guerra del narco” – the war against drug cartels and the shift to “abrazos, no balazos”, or “hugs instead of bullets”
Narrowing the gap between rich and poor
And here we are, halfway through AMLO’s term. Is the transformation happening? The president’s platform has always made use of sweeping rhetoric and relied on a David vs Goliath narrative of the Mexican people fighting the corrupt ogre of “neoliberalism”, but the concrete details of goals, policies and structural reforms are often glossed over. “People like to share with him the rage, the scorn, that the privileged few provoke, but the fun is over when signs point towards challenges that AMLO refuses to acknowledge,” notes historian Soledad Loaeza in an article from 2019.
While AMLO promised not to continue with “more of the same”, the statistics on corruption and impunity continue to spiral, in the wrong direction. According to a report by NGO Impunidad Cero, the rate of impunity for homicides in Mexico in 2019 was 89.6%. AMLO himself acknowledged the setbacks in combatting impunity in his “mañanera” on Feb. 18: “There is an inertia, vices…held over from before when one didn’t know where the line was between criminals and authorities, they were one and the same.”
AMLO may have declared the end of the war against drug cartels, but the reality on the ground shows no abatement of the violence, in fact, 2019 was the most violent on record in the country. The use of the military to combat organized crime has continued, while civilian police departments have been hollowed out and mostly superseded by his “Guardia Nacional”.
As far as reduction of inequality is concerned, the number of Mexicans living in poverty increased by 3.8 million from 2018-20 and is considered one of the most unequal countries in the world. There has been a lot of noise about budget cuts, layoffs and dismantling of institutions during this “sexenio” and it is perhaps too early to know if these upsets in the name of austerity will have lasting effect. Public spending has been reduced during the 4T and redirected towards some of AMLO’s “mega-projects” such as the Tren Maya and the Dos Bocas refinery.
“In terms of policy orientation, the proposed  budget reflects the government’s commitment toward strengthening the role of Pemex and CFE within the energy sector, as well as to bolster some landmark programs, particularly those centered around social assistance. Overall, while the budget moves slightly away from the austerity that has characterized the current administration, it preserves its tendency to centralize public spending,” noted analyst Rodrigo Abud in a 2021 report by think tank The Inter-American Dialogue.
Taking a wider perspective—as merited in a self-described historical watershed—all of these bleak statistics may be as attributable to the policies that preceded the 4T as they are to AMLO. He and his followers are clearly of this opinion. The more important question that remains is does the president’s agenda have the breadth and strength to make the impact he promised?
According to Loaeza’s 2019 appraisal: “it is probable that AMLO will follow the same path as previous presidents in the rollercoaster of public opinion, from the enthusiasm of victory to the pessimism inspired by the routine of politicians who, like him, believe strongly in themselves but little in the rest of us.”
La corte limita la prisión preventiva: podrá revocarse a los dos años (Animal Político)
Reportaje: prisión preventiva (Animal Político, Intersecta)
Pre-trial detention (Fair Trials)
3 años preso sin juicio: caso de Álvaro puede cambiar justicia mexicana (Animal Político)
Pretrial detention (Prison Policy Initiative)
Criminal justice facts (The Sentencing Project)
¿Qué dice la prisión preventiva de nosotros? (Opinión 51)
FGR concluye que sobornos fueron solo para Lozoya y su familia (Animal Político)
Emilio Lozoya seguirá en prisión preventiva justificada (El Financiero)
Bribery Division: What is Odebrecht? Who is involved? (International Consortium of Investigative Journalists)
AMLO, México y el informe de gobierno (The Washington Post)
La revolución Mexicana y su costo demográfico (El Universal)
Se acelera impunidad en homicidios dolosos (Excelsior)
What does Mexico’s budget say about AMLO’s priorities? (The Dialogue)