How the system is rigged for El Chapo

Story highlights

  • Danny Cevallos: Corruption in Mexico pervades justice system, government, from lowest-level police, prisons and municipalities
  • He says nation has passed judicial reforms; a plus, but not enough. El Chapo escape is evidence of this

Danny Cevallos is a CNN legal analyst and a criminal defense attorney practicing in Pennsylvania and the U.S. Virgin Islands. Follow him on Twitter: @CevallosLaw. The opinions expressed in this commentary are solely those of the author.

(CNN)My father is a criminal.

Danny Cevallos-Profile-Image
Let's be clear: I doubt the man has ever broken a single federal or state law since he immigrated here from Ecuador in the 1950s. He doesn't do drugs... unless fiber and prune juice count as drugs. He's probably never even jaywalked or played his Mel Tormé records too loudly. He hardly fits the profile of your average criminal in lockdown at an American prison. That makes sense: after all, he's never committed a crime in America.
But in Mexico, he's as corrupt as anyone else; routinely committing acts that would be arrest-worthy in the United States.
    Let me explain.
    My father migrated one Michigan winter some decades ago to Mazatlán, on the Pacific coast of Mexico, with my abuela. She lived there; he was seasonal. I stayed there often and my friends spring-breaked there whenever they could make a paycheck. Sinaloa, where Mazatlán is located, is the state sharing a name with the infamous cartel. Its leader, Joaquin "El Chapo" Guzman was apprehended last year just a few short blocks from the family home, down the Malecón, at the Miramar.
    The author and his father
    Why was my father corrupt like others? Whenever his car was stopped by the police -- or the federales -- he would casually reach into his wallet, pull out a wad of pesos, and simply hand them to the officer at the window. We would then be waved on our way, as if Obi-Dad Kenobi had Jedi-mind tricked the Stormtroopers.
    He was frequently stopped by 18-year-old "police" in pickup trucks with M-16s, because he never registered his car down there -- it had expired Michigan tags on it for decades. In the States, the guy was as risk-averse, straight-living as they come. When in Mexico, though, he does as everyone else does. And sadly, everyone else there is all too familiar with official jobbery.
    While government profiteering and collusion appear to reach into "the highest and lowest layers of the Mexican government, the municipality constitutes the social base of organized crime," wrote Stephen Morris, a political scientist at Middle Tennessee State University.
    As Laurie Freeman observed in a report for the Washington Office on Latin America, doing business in Mexico "entails bribing and intimidating public officials and law enforcement and judicial agents." How do organized crime and drug trafficking organizations fit here? Simply put, organized crime requires corruption on some level to survive.
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    Of course, Mexican citizens -- all citizens anywhere, for that matter -- are the actual victims directly or indirectly harmed by public corruption. Citizens are the ones whose tax dollars or property are misappropriated. Even if there is no actual direct loss of money, these people are victimized when they are deprived of the "honest services" of their leaders.
    The truth is, corruption is not limited to Mexico. It's a worldwide problem, and has been since the dawn of civilization. The United States is hardly immune. The Department of Justice has made prosecuting public corruption a top priority in recent years, and has marshaled its vast resources to weed it out in every state, district, and territory. If left unpruned, it would grow as wild in the States as anywhere else.
    Let's face it: self-dealing is a primal, human temptation, as is nepotism and cronyism. If doing the "right thing" came naturally to people in public office, we wouldn't have so many laws governing their conduct. Any prosecutor in the U.S. Attorney's Office's Public Integrity Section, could explain to you why policing of fraud, bribery, and extortion by elected or appointed federal, state, and local officials is in fact their full-time job.
    But despite Mexico's lawless reputation, the country deserves at least a participation trophy for its improvement in the last decade or so.
    Mexico passed judicial reforms in 2008 that initiated a transition from a "closed-door, inquisitorial process based on written arguments to an accusatorial or public trial system with oral trials and opportunity for plea bargains by 2016." Included also were new concepts that Americans have long enjoyed, like the presumption of innocence until proven guilty. Prior to that, as Dad had often warned me before I left the house, in Mexico, you were guilty until proven innocent.
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    When it comes to government corruption, the transparency of open proceedings and oral advocacy were designed to reduce corruption and the public perception of a "wink-and-nod" justice system. The federal government there has been transitioning from the "dossier" method of trial by written submission, to public tribunals designed to take decisions out of back offices and into the open courtroom.
    The same corruption has plagued Mexican prisons too: In 2010, more than 300 inmates escaped from Mexico's federal prisons, certainly raising the specter of official involvement, with prisoners at times literally allowed to walk out the front gates.
    And of course, Exhibits A and B to the case against Mexican prisons would be Guzmán's 2001 escape from custody... and his 2015 escape from custody. Whether officials were bribed or just threatened, the result was the same.
    Despite El Chapo's escape, Mexico's improvements to its system over the past 10 years are noble in design. Clearly, though, the events of the last few days demonstrate the country has a long way to go.
    Bottom line: this prisoner would likely not have escaped from federal custody in the United States. Moreover, prosecution, detention and imprisonment in the United States separates a foreign drug lord geographically from his locus of control, and his support systems. This saps his ability to direct his criminal organizations, or maintain his status therein. It also reduces the chances he can bribe or threaten his jailers.
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    So, should the United States just step in? Should U.S. prosecutors demand Guzmán be delivered north when and if he is re-re-apprehended?
    The United States can and does prosecute foreign nationals for conduct abroad, using laws expanding its extraterritorial jurisdiction. Guzmán is a Mexican national, and the extradition of nationals is a decision left to the discretion of the Mexican government. Moreover, the Extradition Treaty between the United States and Mexico permits Mexico, if it chooses to grant an extradition, to defer the individual's surrender to a requesting United States until the conclusion of its own prosecution, or punishment for another Mexican crime.
    So, it appears Mexico can politely decline to turn over Guzmán to the United States, and imprison him for life in Mexico. This would be acceptable under the treaty, despite the U.S. government's jurisdiction over drug trafficking activity abroad.
    Still, if Mexico ever finds him, they would do well to turn him over to the United States. Let's face it: He's escaped prison twice already. It's fair to say that a Mexican prison may never hold him.
    The Mexican justice system has come a long way, but corruption is still evident -- from the organized crime leaders who tunnel out of prison with the obvious collusion of people in positions of authority, and at least a team of engineers and a backhoe; and also down at the street level, where a guy like my father could still hand a crumpled roll of pesos to have the police ignore his long-expired motor vehicle tags.
    For now, Mexico should probably extradite its major crime bosses to the United States. Mexico, if you're interested in prosecuting someone for bribery in the meantime, we'll send you my Dad. Make an example of him.
    I'll testify.