‘Tough on Crime’ May Backfire

California district attorneys are furious because hundreds of violent criminals use Mexico as their refuge to escape arrest. According to the Los Angeles County district attorney’s office, Los Angeles alone seeks more than 60 murder suspects who have crossed the border. But part of the problem is California’s unwillingness to adapt its sentencing laws.

In October 2001, the Mexican Supreme Court ruled that any sentence of life imprisonment violated the Mexican constitution’s protection against unusual punishment, and therefore Mexico may not extradite any individual to the United States who would face a possible life sentence.

The decision may sound peculiar to U.S. ears, and it goes far beyond European and Mexican positions that bar extradition to face the death penalty, but it does have some foundation. There is a long tradition in European and Latin American jurisprudence that imprisonment exists not for punishment but to protect society and for rehabilitation of the offender. According to the Mexican Supreme Court, a life sentence fails to recognize a prisoner’s right to rehabilitation.

The decision is a setback for California law enforcement. Until the late 1990s, Mexico rarely extradited its own citizens to the U.S., invoking a clause in the U.S.-Mexico treaty that allows it to deny extradition and conduct the prosecution of its own citizens in Mexico. That approach led to many failed prosecutions and many light sentences. But improved relations with the U.S. had led to a sharp increase in Mexican extraditions in the years just before the 2001 Supreme Court decision.

California is the state most affected by the Mexican Supreme Court decision because, unlike in other border states, law in California often leaves prosecutors no option but to seek a life term for a serious charge.

However, California has postured rather than dealing with the problem. Law enforcement authorities complain of a corrupt Mexican system that offers a haven for murderers, and some district attorneys have simply stopped making extradition requests. The state Legislature has passed a resolution calling for Washington to pressure the Mexican government to change its policy.

But Mexico has an independent Supreme Court. Rather than grumbling and seeking Washington’s aid, California needs to look for solutions that work within Mexican legal traditions and serve justice in the U.S. cases.

Mexican law does provide for 60-year prison sentences for a range of serious crimes. California’s legislators could easily pass a law providing that any life sentence imposed on an individual extradited from Mexico shall automatically end after 60 years of imprisonment, if required by Mexico as a condition for extradition. While this may give fugitives in Mexico a special advantage, California prosecutors have long offered assurances not to seek the death penalty in order to obtain extraditions from other countries.

The Mexican Supreme Court decision may well be mistaken, especially given that life imprisonment often allows a possibility of parole based on rehabilitation. But California cannot count on changing the case law of an independent neighbor.

The Davis administration has a choice: look tough on crime and let murderers go free or recognize Mexico’s sovereignty and accept a 60-year sentence as the maximum.

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Jonathan M. Miller, a professor of law, teaches international protection of human rights at Southwestern University School of Law.