Alternative justice is a legal concept of the new penal system that allows conflict resolution prior to formal legal proceedings. Its effectiveness is proven, but so far both resources and personnel assigned to this process are insufficient, which puts at risk the model's success.
This is the warning carried in the report, "The Other Justice: Report on Operation of Alternative Justice in Mexico" [La otra justicia, reporte sobre la operación de la justicia alternativa en México] carried out by researchers at the Research Center for Development, A.C. (CIDAC), presented on Tuesday, March 29.
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After passage of the 2008 penal reform requiring all states to implement the new accusatorial criminal justice system no later than June 18, 2016, Alternative Mechanisms for Conflict Resolution Criminal (MASCP) were established, allowing victim and offender to achieve resolution of conflicts in order to repair the damage, reweave the social fabric and relieve the workload on the criminal justice system.
However, the study coordinated by Carlos de la Rosa, notes that the lack of financial and human resources at Centers for Alternative Justice "jeopardize compliance with the law." For example, the lack of personnel compels the development of additional positions, as it "puts at risk the success of Alternative Mechanisms."
In the years during which the model has been being implemented, it has shown progress. According to data provided by INEGI [National Institute of Statistics and Geography], Alternative Justice Centers show the following changes from 2012 to 2014:- Cases Presented Increased by 20%:
- 2013: 139,602 cases
- 2014: 168,553 cases
- Resolutions Reached Increased:
- 2013: 130,193
- 2014: 138,758
- Pending Cases Increased by 93%:
- 2013: 6,373
- 2014: 12,315
These results can be explained by the lack of personnel. For example, the central figure in the process are facilitators, who are responsible for mediating between victim and offender. As a practical matter, they take charge of the cases, since they have to organize meetings between those involved—even the community. Additionally, they have to talk to the police and communications media and must know in detail the services and social support networks.
However, the study warns that the states have not defined competency profiles for roles in the area of Alternative Justice, which
"causes concern, given that to be a facilitator requires the development of special skills to ensure performance of their duties."According to the 2015 Census of State Prosecutorial Justice, there are only 674 facilitators in the entire country, working in lean conditions. They have positions as agents in the Public Ministry [Prosecutorial function within Office of Federal or State Prosecutors] or as assistants, with an average monthly salary of 10,000 pesos [US$581] and other financial benefits from 2,000 to 7,000 pesos [US$116-407].
The bad conditions affect all the Centers for Alternative Justice. In Oaxaca, for example, there aren't any administrative officials for Alternative Justice. In Chihuahua, there are only three secretaries [specially trained lawyers, see MV Note], a file clerk, a Notifier, and two police officers who act as notifiers. In the State of Mexico [surrounds Mexico City, horseshoe-like, on three sides], there are only two administrative support staff. Morelos is the most generous state, because it relies on 25 administrative support staff.
MV Note: Mexico's legal system is document-intensive. Secretaries are specially trained lawyers who perform legal-documentary functions in support of the court; in this case, the facilitator. Notifier is a court official who hand-delivers court documents (orders, resolutions, etc.) to parties in a case for their signature.
According to researchers Mireya Moreno, Paulina Sánchez and Karen Silva,
"much of the success of Alternative Justice depends on the capabilities of personnel and their commitment to the mechanisms."
What's more, if the Centers for Alternative Justice operate effectively,
"they will affect a number of special interests, professional influence and spheres of power and control."Why Wager on Alternative Justice?
The National Law of Alternative Mechanisms for Conflict Resolution of Criminal Matters establishes three mechanisms: Conciliation, Mediation and Restorative Meeting. The first two are similar because they involve the participation of the offender [defendant] and the petitioner [plaintiff], plus an impartial third party (legally called "facilitator").
Among the criticisms levied against mediation, is that both mediation and conciliation do not necessarily imply a restorative approach, but are limited to seeking a settlement through a negotiation similar to what takes place in a commercial or civil matter.
The Alternative Justice model does not aspire to be justice for small claims or for crimes committed by minors, or for a shortened judicial process. The model of Alternative Justice seeks to be a mechanism for
"transforming and healing the damaged relationship between the community and institutions of the justice system."Based on a review of various state criminal codes, the crimes open to Alternative Justice include: wrongful death, injury, abortion, genetic manipulation, crimes against compliance with familial responsibilities, discrimination, threats, breaking and entering, theft, breach of trust, and fraud.
Avoiding sending offenders to prison for these kinds of crime also means lower costs for the prison system, since the prisons are, on average, operating at 130% of their capacity. This represents an approximate daily expense of 213 pesos [US$13.34] per inmate. The costs of keeping people in preventive custody are:
- 22.97 million pesos [1.3 million USD] per day, and
- 8.269 billion pesos [479.5 million USD] a year .
Economic Impact on Families
According to a survey of prison inmates' families in the state of Morelos and in Mexico City, more than 70% of respondents spent between 10,000 and 50,000 pesos [US$581-3,000; presumably for legal costs]. In contrast, with Alternative Justice:
The study included a survey of 458 people who made use of Alternative Justice mechanisms in Morelos, State of Mexico and Oaxaca. Total results are reported as follows:
When asked about the type of agreement reached in the cases, 42% said that it was a financial arrangement. According to the National Law, settlement agreements might also include the performance or cessation of certain conduct, community service, or any other lawful path, such as enrollment in programs or activities aimed at preventing repetition of the [criminal] behavior.
Alternative mechanisms, the researchers say, represent an innovative way of enforcing justice in a transparent and horizontal way, which leaves participants satisfied with the result, not in the sense of resolution, but because they perceive that there was a fair process in which they actively participated. Spanish original
According to a survey of prison inmates' families in the state of Morelos and in Mexico City, more than 70% of respondents spent between 10,000 and 50,000 pesos [US$581-3,000; presumably for legal costs]. In contrast, with Alternative Justice:
- 23% of participants interviewed spent 100 pesos [US$5.80];
- 30% said they spent up to 500 pesos [US$29]; and
- 24% said they spent up to 5,000 pesos [US$290].
Moreover, the expenses continue once a person is in jail: 20% of relatives of inmates in prisons spend between 500 [US$29] up to 1,000 pesos [US$58] monthly in supplies and protection for their family member, but the monthly payment can reach as high as 5,000 pesos [US$290] per month.
The study included a survey of 458 people who made use of Alternative Justice mechanisms in Morelos, State of Mexico and Oaxaca. Total results are reported as follows:
- 44% Very Satisfied;
- 25% Somewhat Satisfied;
- 3% Much or Little Satisfied;
- 14% Dissatisfied;
- 12% Not At All Satisfied; and
- 3% Did Not Know, or Did Not Answer.
Alternative mechanisms, the researchers say, represent an innovative way of enforcing justice in a transparent and horizontal way, which leaves participants satisfied with the result, not in the sense of resolution, but because they perceive that there was a fair process in which they actively participated. Spanish original
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