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EXTRADITION/FOREIGN PROSECUTION, MEXICO

I.     Extradition Treaty Between the United States of America and the United Mexican States (Signed by President Jimmy Carter, 1978, Effective 1980)

The Extradition Treaty between the United States of America and The United Mexican States (hereinafter, "the Extradition Treaty", see 31 U.S.T. 5061) provides for extradition of a party who has been charged with or found guilty of an offense committed in the United States, who has fled to Mexico. An offense is extraditable if it is a crime in both countries and punishable by incarceration for a period of one year or more. Double jeopardy and statute of limitations provisions in each country apply. (See CA Penal Code sections 656, 793, Extradition Treaty, Article 6)

The Extradition Treaty further provides that where the offense for which extradition is sought is punishable by death, extradition may be refused unless assurances are given that the death penalty shall not be imposed, and if imposed, shall not be executed.  Although the Mexican Constitution provides for the death penalty, no one has been executed, nor the provision implemented, since the mid-1950's.  [See “1917 Constitution of Mexico”, Article 22, which states “ . . .[C]apital punishment . . . can only be imposed  for high treason committed during a foreign war, parricide, murder that is treacherous, premeditated, or committed for profit, arson, abduction, highway robbery, piracy, and grave military offenses.”])

Neither side is bound to deliver up its nationals, however if extradition is denied based on nationality, the request for extradition is automatically converted into a foreign prosecution pursuant to Article IV of the Mexican Federal Penal Code (hereinafter, “Article IV”).  Although by law, the Mexican authorities are authorized to extradite their nationals in “exceptional circumstances”,  in practice they most often do not.     [See “Ley De Extradicion Internacional”, enacted May 19, 1897, revised  January 10, 1994: “extradition of Mexican nationals is prohibited except in “exceptional” circumstances”]

“Nationality” is liberally construed  and often, marriage to a national, having dual citizenship, parents or other close relatives who are Mexican nationals, or simply having a Hispanic surname will suffice.

A suspect cannot be prosecuted for an offense other than that for which extradition has been granted, except in extremely limited situations involving a defendant’s waiver of that right.  (“Rule of Speciality”,  Extradition Treaty, Article 17).  The Secretary of State will package all charges from all jurisdictions together when they present the request for extradition.  In the event that extradition is sought in one case and attempts are made to prosecute the suspect for a second case committed prior to the extradition, but not listed in the extradition request, the Departments of Justice and State will step in to enforce the treaty and preclude prosecution.  Although the Mexican government is authorized to grant a waiver of the Rule of Speciality, in practice they have not done so, and it is doubtful that they will do so in the future without sufficient assurances being given.

II     Subsequent Mexican Court Decisions

On October 2, 2001, the Supreme Court of Mexico ruled in a binding decision that no extradition would be granted unless the requesting state gives assurances that a term of years would be imposed and the suspect would be eligible for parole.  In so ruling, the Court held that the purpose of punishment is rehabilitation.  Life imprisonment is inconsistent with rehabilitation and, therefore, a sentence of life imprisonment violates their constitution because it constitutes cruel and unusual punishment.

In May of 2002, in a non-binding decision, a Mexican court ruled that assurances by a prosecutor have “no value because U.S. judges are autonomous, as their own embassy recognizes, so they would apply the punishments established by U.S. Penal Codes”.   The Office of International Affairs has advised that they interpret these rulings as requiring that the assurances to be given by a judge.  Such “judicial assurances” are a legal impossibility in the United States since a judge cannot rule on a case not before the court, and a judge may not prejudge the evidence.

In at least two recent cases, Mexican authorities have refused to deport or expel a US citizen without sufficient assurances.

The October 2, 2001 Mexican Supreme Court decision and its holdings were reaffirmed by the Mexican Supreme Court in April, 2004.

III     Application to California Law

Since the Extradition Treaty was implemented in 1980, it has been the policy of the Mexican government to refuse extradition on a special circumstance case without assurances that the death penalty will not be imposed, or if imposed, will not be executed. Prosecutors seeking such extradition were left with the decision whether to waive the death penalty and agree to a sentence of life imprisonment without the possibility of parole, refuse to seek extradition and allow the fugitive to remain at large until such time as he or she returned to the United States, or seek an Article IV prosecution.

The Mexican Supreme Court now requires that choice to be made regarding more than 40 different categories of “life-top” crimes. 

Unlike some states and the Federal government, California prosecutors cannot guarantee parole on a “life-top” offense without arbitrarily reducing the charged crime or special allegation.  Unlike the Federal system, there is no authority to request a “downward departure.”

To simply reduce the charges would not only run afoul of the equal protection clauses of the United States and California Constitutions, but would send a powerful message to criminals that you can escape justice for the price of a bus ticket across the border.  It also sends a powerful message to Mexico that the United States will tolerate such an egregious  interference with our sovereign right to prosecute and punish according to our criminal justice system.  Neither is an acceptable option.   Neither serves the ends of justice for victims nor adequately protects our community.

IV     Article IV Prosecution

Mexican prosecutors have asserted that prosecution under Article IV  is sufficient compliance with the Extradition Treaty.  Article IV allows Mexico to try fugitives for crimes committed in a foreign territory by or against a Mexican citizen. The trial is conducted in accordance with Mexican Federal Law. Such provisions apply if the accused is located in Mexico, has not been tried in the country where he committed the offense, and the charged offense is a crime in both the foreign country and Mexico.

Mexican Federal law is based on the Napoleonic Code.  There is no presumption of innocence, no jury trial, and traditional common law and statutory rules of evidence don’t apply.  All trials are conducted by affidavit or declaration and witnesses rarely, if ever, testify in open court.  Victims and their families have no practical ability to witness the trial or be heard at sentencing which is controlled by the Mexican Federal Penal Code.  Although the maximum sentence in Mexico is a term of sixty years for murder, a sentence can, and frequently is, reduced through the appellate process or the “Amparo” which is the rough equivalent to our habeas proceedings.

Although efforts are currently underway to address the wide-spread corruption which has historically plagued Mexican judicial and law enforcement communities, little is known about the results of Article IV prosecutions previously submitted.  Often warrants remain in their system, unserved, for years.  Prosecutions are commenced and then dismissed or sentences substantially reduced in the appellate courts.  No verifiable system exists to track actual sentences served or to create a criminal database.  Repeated demands for such information have been largely ignored by the Mexican government.  Less formal surveys of law enforcement regarding the results of such prosecution show an abysmal record.  Approximately 85% of the cases appear never to have been prosecuted.  The remaining 15% appear to result in acquittals or vastly reduced sentences by comparison to what would have been the sentence in the United States, except in a few highly publicized incidents.   The Extradition Treaty bars future extradition once a “trial” has been conducted in either country.

Even more alarming, regardless of the result, double jeopardy provisions bar subsequent prosecution in Idaho, Mississippi, North Dakota, Nevada and Oklahoma.  Those states are forever barred from prosecuting any fugitive who returns to the United States, regardless of the outcome in Mexico.

California law had previously barred such reprosecution, however, led by the Los Angeles County District Attorney, Governor Arnold Schwarzenegger signed AB1432 on August 15, 2004. This legislation (effective January 1, 2005) amended Penal Code Sections 656 and 793 so that the State of California will no longer be bound by decisions of foreign courts regarding crimes committed in California.

I.       Options

Four viable options remain for the  prosecutor in determining what action to take when a Mexican national  has committed a serious crime in the United States, then fled to Mexico.  If the suspect is not a Mexican national, then additional options  to extradition such as deportation or expulsion should be explored; however, Mexican authorities have now begun to refuse even deportation or expulsion of U.S. citizens in some cases.  There is no consistency in the application of any of these principals among Mexican courts or law enforcement.

The current options are:

            1.  File charges, enter the warrant in all systems, and do nothing until the suspect re-enters the United States.  Although this will allow murderers, child molesters, rapists and other criminals to remain free in a foreign state, no restrictions apply to our ability to prosecute and sentence the offender after his or her return to the United States.

            2.  Seek extradition on reduced charges which will allow for a determinate sentence in order to provide  sufficient assurances to Mexican authorities.  Although Mexican courts have not defined precisely what assurances will suffice, it should be noted that in at least one Federal major narcotics trafficking offense, a Mexican court has determined that 20 years was cruel and unusual.   Note also that some Mexican courts have ruled that any assurances given by a prosecutor are insufficient.

            3.  Seek extradition and refuse to give assurances.  If the fugitive is a Mexican national, under Article 9 of the Extradition Treaty, the extradition request will automatically convert to an Article IV prosecution.  Although reprosecution will no longer be barred after January 1, 2005, California cannot compel the fugitives return and there would be no practical way for law enforcement to be aware of the fugitive's surreptitious return.  If extradition is denied for a non-national, the subject is released from custody.

            4.  Directly file an Article IV prosecution in Mexico City.

Extradition of fugitives is a matter of urgent and enduring importance to the People of the United States of America and the refusal to extradite threatens the lives of our citizens and inhibits our ability to pursue justice.  The United States of America should never tolerate the usurpation of our sovereign rights or the serious miscarriage of justice that will continue to prevail as a result of the Mexican Supreme Court decision.  This decision represents an egregious interference with our sovereign right as a nation to prosecute  and punish according to our laws, those who commit serious crimes in the United States and flee to Mexico.

(updated 09-03-03)