Home Law International Handbook of Juvenile Justice
THE LEGAL STATUS OF JUVENILES
In Mexico today, a juvenile is any minor between the ages of 12 and 18 years old. This is not only the current legal definition, but it is also a modern definition. Many things over a number of years have had to happen to reach this point of modernity.
In my opinion, five historical periods can be seen regarding the legal status of juveniles in Mexico. These periods are neither found in previous texts nor are they fine-grained, but it is conceptually valid as it delineates the major historical moments and changes regarding the legal status of juveniles in this country.
Even though we have no record of an established criminal justice system in Mexico’s pre-Hispanic times, we do know of two codes of rules which included guidelines for juveniles. They even included definitions of age of majority. These were the Nezahualcoyotl Code and the Mendocino Code (also named the Mendoza Codex after the first Viceroy of New Spain). The former was created by the emperor Nezahualcoyotl (1427-1472) with the aim to regulate a variety of behaviors regarding civil law, criminal law, music, sciences, war, and even the public budget (Salcedo 2010). It is also known by the name of the Texcoco Ordinances. The latter was written in 1541, some years after the Spanish conquest, and it is a historical document that contains the history of the Aztec empire as well as a description of the lives and ways of these peoples, including matters of justice (Fig. 6.1).1
Figure 6.1. Mexico: The legal status of juveniles through time. Source: Own elaboration.
During the colonial period, the legal status of juveniles was included in the Legislacion de Indias of 1680 established by the Real Consejo de Indias. The legal age of majority (18) and terms of punishment and rules for imprisonment for juveniles and adults were established in this code.
Mexico’s war of independence occurred between 1810 and 1821. In spite of the promise of social justice, modernity, and equality that the independent movement made to the general population, in reality, the juvenile justice system and the criminal system, overall, evolved very slowly during this period. For a good number of years after independence, the colonial legislation remained in function for all matters. The first change regarding juveniles happened with the so- called Ley de Montes of 1841. This law defined the age of majority, but it really did not bring major changes in comparison to the previous Legislacion de Indias. In any event, this was the first Mexican law regarding the legal status of juveniles.
The first true legal reform regarding the status of juveniles came into being just a few years before the Porfiriato (1876—1911) in 1871, when the first Mexican criminal code was promulgated. Some important changes were made regarding the age of majority and the rules for punishment, particularly regarding minors under 9 years old. Still, during this historical period, juveniles were judged in the same courts as adults, and, in practice, they were also punished as adults (Blanco 2006).
Even though some important legal discussions occurred between 1908 and 1912 regarding the need for a specific criminal justice system for juveniles, the Mexican revolution of 1910-1920 put a stop to all discussions concerning the criminal justice system as a whole (Blanco 2006).
Still, these discussions were quickly restarted and followed by action. In 1923 the first juvenile court was established in the state of San Luis Potosi, followed in 1928 by the Federal District (Mexico City) with the promulgation of the Law for the Social Prevention of Child Delinquency in the Federal District and the Territories, also called the Villa-Michel law. This law was a breakthrough in the sense that it emphasized rehabilitation, in opposition to punishment, the main goal behind the juvenile justice system. As such, it established different types of penalties varying from school arrest and probation to reclusion in correctional institutions, agricultural colonies, or service in school (Cruz 2007). In fact, the next federal criminal codes of 1929 and 1931 included these principles regarding the legal status of juveniles.
The next major advancement came in 1964 when the Federal Congress imposed the establishment of juvenile courts in all states. This can be considered a major reform since it included a reform of article 18 in the Constitution.
Later on, in 1991, the Law for the Treatment of Young Offenders for the Federal District and all States was enacted. It conceived of juvenile crime as a crime prevention problem. As such, it considered a variety of legal principles such as the principle of legality, the presumption of innocence and orality in the process, and the establishment of a child advocate called Consejo de Menores. Two criticisms of this law were that it basically replicated the inquisitorial criminal justice system of adults and that the Consejo de Menores was both an administrative and judicial institution, thus violating article 37 of the Convention of the Rights of Children of 1989 in the sense that children have the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action” (Castillo & Zuniga 2010).
Interestingly enough though, the major conceptual changes and improvements have occurred during the last 10 years. Today, the juvenile justice system in Mexico benefits from three constitutional reforms that have happened during this century. These were the constitutional reforms of 2005, 2008, and 2011. They can be considered major reforms because they involved constitutional changes and, in fairness, a major advance in the treatment of juveniles and adults in the criminal justice system. The reform of 2005 (again) changed article 18 of the Constitution by introducing the legal basis for an integral juvenile system of justice nationwide, from a perspective of Children’s Rights as they are considered nowadays by the United Nations. The reform of 2008 changed article 20 of the Constitution by introducing the oral adversarial system in the criminal justice system as a whole, including the juvenile criminal system. As a result of this reform, the previous inquisitorial system of justice will be eliminated. In June of 2016, the new system must be operating in all states. Finally the reform of 2011 changed article 1 (and title of Chap. 1) of the Constitution to include human rights, this meaning that from now on (1) all human rights international agreements made by Mexico have the same status as constitutional law and (2) all legal processes must guarantee the human rights of every person, including juveniles, as safeguards against abuses of power.
Finally, in 2012 the Federal Law for Adolescent Justice was enacted. All of the recent constitutional reforms were considered and imprinted in this piece of legislation. This law also considers other important measures as the existence of different alternatives to the trial of the juvenile, such as the conciliation and mediation alternatives between the offender and the victim, and measures of restorative justice. This law is the most modern and probably the best legislation ever enacted in this country. This law will be abrogated in 2016 in order for the Federation and all States to begin operating with the National Code of Criminal Process which makes the adversarial system the only criminal system in the country. As such, in
2016 a new federal law and 32 State laws on juvenile justice will have to be enacted. These new laws must not be too different from the 2012 federal law.
These reforms for the benefit of juveniles are not without limitations. Among them are the following (IJPP 2013): Juvenile programs are scarce, criminal justice institutions are not responding fast enough to reduce exclusion and labeling, and there is a lack of data regarding juvenile delinquency. While I agree that not much progress can be made without better institutions for juveniles, I partially disagree with the last criticism. A lot of progress has been made recently, but indeed much more than legal changes are needed for the betterment of the Mexican criminal justice institutions.
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