Some — including legal scholars like Sergio López Ayllón — say the mechanism disincentives prosecutors to investigate, since they already have a person in custody. He calls mandatory pretrial detention “a subsidy for the inefficiency of public prosecutors.”
“Prosecutors say that it gives them more control over an investigation, but in reality it is a way for them to keep a person who possibly committed a crime sequestered,” he said. “And since they don’t have the tools to investigate, the only thing left for them to do is to pressure people to confess so that the process can continue.”
Osorio agrees, noting prosecutors sometimes pressure suspects into confessing or taking a plea bargain, using mandatory pretrial detention as leverage as they pad their records.
“It’s a check mark for prosecutors,” he said. “They get another sentence and don’t have to investigate.”
The idea that the state should not only trust the accused to return to court on their own but that it should support them in their efforts to avoid recidivism is not a popular one in Mexico. But Osorio’s record should allay popular fears that the elimination of mandatory pretrial detention will flood the streets with criminals.
Those who fail to return to future hearings account for less than 5% of the defendants he sees in court, Osorio says. “People do comply.”
Osorio doesn’t consider himself a leader in Mexico’s judicial transformation. Instead, he says he is merely “assuming the role” that all of the country’s judges have in the new adversarial legal system.
“We must go all-in on this new system,” he said in an interview. “We have to commit to it.”
Observers, however, do not shy away from praise.
“He’s a rockstar,” said judicial assistant Julio César Betanzos. “He was the first judge to dare to stop applying mandatory pretrial detention. Before the rulings of the Inter-American Court, he was the first to start talking about this issue.”
Román Lazcano, national coordinator of the Forum of Constitutionalists of Mexico, said that Osorio’s integrity is evident in his rulings.
“The country and its judiciary need brave judges like Eduardo Osorio, who strictly adhere to what is in their rulings, who don’t let themselves be influenced by political pressures, and who issue decisions based on due process,” Lazcano said.
But as Osorio works to reform Mexico’s court system from within, he’s faced powerful opposition — including from the country’s executive branch.
While the 2008 reform cut back on the number of crimes warranting mandatory pretrial detention, Mexico’s congress greatly expanded that list at the beginning of current President Andrés Manuel López Obrador’s administration. Analysts have said that López Obrador uses the mechanism as a tool for political intimidation.
President López Obrador, for his part, opposes ending mandatory pretrial detention. Describing Mexico’s judiciary “rotten,” he has criticized Osorio by name multiple times in his daily morning press conferences.
Nor have the attacks only come from Mexico’s most powerful official. In August, Osorio was featured in a morning press-conference segment called “Zero Impunity” for what critics called the illegal nullification of a search warrant in a drug and weapons possession case. A couple weeks later, Mexico’s fiscal attorney general accused him of delaying a decision in a tax fraud case.
Osorio declined to comment on executive branch accusations against him. Since all of the hearings at the Querétaro federal courthouse are recorded and open to the public, Courthouse News was able to review the hearing involving the search warrant that Osorio supposedly illegally nullified.
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