Federalism in violence: Part II

This analysis was featured in Critical State, a weekly newsletter from The World and Inkstick Media. Subscribe here.

Last week, Critical State looked at how the distance between national governments and the people who actually implement their repressive policies both enables and limits the violence states can do to their own people. In the Philippines, the deadliness of President Rodrigo Duterte’s ultra-violent drug war varies based on the political networks of the various mayors charged with carrying it out. This week, we’ll look at a case where the distance has served an opposite function, making it very difficult for the national government to get its violence-implementers to stop repressing people.

Related: Federalism in violence: Part I

In Mexico, police torture civilians accused of crimes at an astonishing rate. In a survey of prisoners in Mexico, nearly 60% reported being beaten by police before being put in custody of a public prosecutor, and nearly 40% reported being beaten while in public prosecutor custody. Over 35% report being victims of simulated drowning before being turned over to public prosecutors and 25% were subjected to waterboarding or similar techniques by public prosecutors. Electric shocks, being crushed with heavy objects, and burns are also frequently inflicted on people unfortunate enough to come in contact with the Mexican criminal justice system. 

Related: In Mexico, the unending drug war takes its toll 

All this is true, despite the fact that Mexico instituted a sweeping criminal justice reform law in 2008 that, among other things, aimed to end torture as a major component of Mexican policing and prosecution. The national government, in other words, told its on-the-ground violence-implementers to chill. Twelve years on, that hasn’t really happened. In a new article in the American Political Science Review, Beatriz Magaloni and Luis Rodriguez investigate why torture is so embedded at the implementation level of Mexican justice.

Related: Cartel gunmen terrorize Mexican city to free El Chapo’s son

Torture’s outsized role in Mexico stems from the country’s colonial past. Mexico inherited an inquisitional justice system from Spain, in which confessions are a crucial part of securing convictions. Since inquisitional systems (as the name suggests) are agnostic about whether those confessions are coerced or not, torture to produce coerced confessions became an institutionalized aspect of how the justice system functioned. The 2008 reforms ended inquisitional justice by changing evidentiary standards to make coerced confessions functionally inadmissible. Magaloni and Rodriguez used data from the survey of Mexican prisoners to test the law’s effectiveness. After the reforms, they found, there was a drop in torture, but the reforms were only responsible for between 4 and 8  percentage points of the drop — hardly at the levels that might have been expected given the content of the new laws. 

Part of the reason for the laws’ limited effect came from the durability of the inquisitional institutions even in the face of democratic intervention. Police forces and prosecutors had a way of doing things, and the state’s actual ability to change those practices on the fly was extremely limited. Over time, as judicial oversight threw out more and more coerced confessions, the reforms did move the needle on torture, but police and prosecutors had to institute the reforms on themselves.

Another issue Magaloni and Rodriguez identified was the increasingly militarized nature of Mexican policing, driven in part by Mexico’s approach to its drug war. In Mexico, local police and military forces sometimes engage in joint operations against drug cartels, blurring the line between law enforcement and punitive raids. These joint operations, the researchers found, increased police torture in the area by between 5 to 10%, even controlling for areas where high levels of drug cartel violence might make the war on drugs more war-like than usual. 

Mexican justice had a hard enough time implementing reforms from the national level, but the militarization of the drug war created a set of mixed signals that, in some communities, wiped away the positive effects of the reform entirely. A national government working at cross purposes with itself will have a particularly hard time curbing its footsoldiers’ violent tendencies.

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