Reforming justice Mexico's poor face unfair sentences

MEXICO CITY -- Giovanni Hurtado Aviles was hurrying to his engineering class when he realized he didn't have the two pesos about 20 cents for the subway. When he tried to use somebody's else's pass to get on, he was caught and hauled to jail. "I made a mistake. I am really sorry. I won't do it again," Hurtado, 20, said he told the guard who nabbed him that January morning.

But the Mexican justice system, which often fails to punish serious criminals, zealously prosecutes the most minor of offenders. So the college student with no criminal record was denied bail and forced to mop floors for 12 hours a day for two months while he awaited trial.

"Our justice system is not just," said the Rev. Jose Luis Tellez, a Roman Catholic priest and lawyer who tries to get such prisoners freed. "The real criminals are at home in their houses while these people are in jail." Mexico's courts and jails are clogged with people like Hurtado, people who stole a bicycle, bread, shampoo, subway fare. More than half of the 22,000 prisoners in Mexico City's jails are there for offenses so slight that human rights advocates and increasingly, city officials say they never should have been jailed in the first place.

Stealing to eat

According to recent testimony to the Mexican Congress by top law enforcement officials, well over 90 percent of serious crime goes unpunished. In a nation with one of the world's highest kidnapping rates, much drug-related bloodshed and a chilling level of violence on the streets of the capital, the prisons are choked with people who stole to eat. Tellez said a man who stole a Gansito, similar to a Twinkie, was released in November after spending three years in jail. He said another man who stole bread worth about $4 was sentenced to six years.

Public opinion polls show that Mexicans are fed up with their justice system. One of the key complaints is that it thunders down so hard on petty criminals. At every turn, the system is consumed with the smallest crimes: Poorly trained police focus on the easiest crimes to solve; corrupt officers, often paid to look the other way when there is more serious crime, have no such incentive to let small-time offenders go. Legislators under political pressure to combat rising crime rates have set tough minimum sentences for the smallest of robberies.

The result is that in many cases, as with Hurtado, the subway cheater, judges are forced by the law to hand down sentences they believe are unfair.

Judges in Mexico have almost no discretionary authority. The Mexican legal system, based in 19th century Napoleonic Code, deliberately limits the role of judges. The theory is that legislators should craft penalties and judges should simply impose them.

Reforms needed

The judge in Hurtado's case wanted to be lenient but said the law would not let him. He convicted Hurtado of "using a false document" showing a subway worker's pass that Hurtado said he had found on the floor. That is the equivalent of a felony, a crime considered too grave to warrant bail, punishable by a minimum of four years in prison. Behind bars, Hurtado vomited from nervousness. He fell far behind on his class work and lost wages from an after-school job.

"What my son did wasn't a crime; it was a mistake," said his mother, Laura Aviles Rodriguez. "Who would call this justice?"

Hurtado's case was handled by Judge Eduardo Mata, a chain-smoking former prosecutor. "Ever since I got this case, I thought it was a shame," Mata said in an interview in his glass-walled courthouse office. "He just did something stupid. But there was nothing I could do."

In Hurtado's case, Mata said the best he could do was issue the minimum sentence for his crime: four years in prison and a fine of about $950. Mata said he then used the only wiggle room the law allowed him, letting Hurtado substitute an additional fine of about $560 for his prison time.

"He didn't damage society in any way," Mata said. "I didn't like the sentence I had to give him. Our laws aren't that fair." Gaunt and defeated, Hurtado walked out of jail on March 13 after 63 days behind bars.