Almaraz, Jose

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Journal of Criminal Law and CriminologyVolume 24Issue 1 May-June Article 18Summer 1933Progress in Mexican Penal LegislationJose AlmarazFollow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclcPart of the Criminal Law Commons, Criminology Commons, and the Criminology and CriminalJustice CommonsThis Article is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted forinclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons.Recommended CitationJose Almaraz, Progress in Mexican Penal Legislation, 24 Am. Inst. Crim. L. & Criminology 271 (1933-1934)PROGRESS IN MEXICAN PENAL LEGISLATION'JOSE ALMARAZ2Since 1929, Mexican penal legislation has advanced consider-ably. The first in the world to have accepted in their entirety thescientific principles of the so-called "positive" school, it was forcedto make radical changes in its ancient classical laws and introducethe procedure and institutions that the new principles demanded. Inthe limited space at my disposal I shall attempt to give some idea ofthe progress that has been realized in this respect.Fundamental PrinciplesAccording to the classical laws of 1871, responsibility for crimeis based upon the concepts of moral responsibility and free-will. Theyposit that all men are equal as regards ideas and feelings and thatfree-will enables them to choose from the many possibilities that arepresented, after their conscience has analyzed the amount of goodor evil that these possibilities contain. When we foresee, we deserveany resulting misfortune; but even if we i.re unable to foresee, we areculpable and ought to be made responsible for our acts by being pun-ished for them.Recent legislation views the personality-physical (temperament)and psychical (character)-as determined by psycho-physical in-heritance and developed or modified by environment. It dismissesthe question of moral responsibility, for the delinquent is punishableonly insofar as his acts endanger society.Crime is no longer a legal matter, an abstraction without mean-ing that entirely disregards the delinquent; it is a voluntary actioncausing a change in the social environment or impeding it, and pre-supposing a determined psycho-physiological personality.The concept of responsibility for one's actions has its source,then, in the capacity to act socially; man is responsible because he issociable and lives in society, just as a colonel is militarily responsiblebecause he serves in the army. The subjective phase of a crime isthus not only an essential part-it allows also for the manifestation1Translated by Betty Lee, Evanston, Ill., U. S. A.2Licentiate.JOSE ALMARAZof the characteristic symptoms of dangerousness in a delinquent.Responsibility for crime is demanded because of (1) physical culpa-bility or (2) the manifestation of a socially dangerous quality orcondition.Dangerousness is the criterion for declaring someone responsible,i. e., the committing of a crime, or planning to commit it. The degreeof dangerousness is determined by the gravity of the criminal act,the nature of 'the motivation and the possibility of the offender con-tinuing in crime. Social protection is the objective and not revenge,exiiation or punishment.Sentences vary as to specific objectives and as to nature. Theultimate aims in view are the prevention of crime, the rehabilitationof the offender and the elimination of the hopelessly criminal byapplying to each type of delinquent the education, adaptation or cor-rection that his condition and the protection of society demand.If the study of the delinquent is to be of any vital importancein modern legislation, a body of specialists must be created to executethe sentences and apply the penal laws scientifically so that there maybe appreciable results in the fight against crime.How Has This Been Realized in Practice?1. By the individualization of punishment, that is, by adapting it inkind and length to the needs of the individual in order to prevent thecommitment of further crimes. To this end, the authority executingpunishtnents orders thq technical examination of each delinquentfrom various points of view:a. Social (including previous life)b. Medical and physicalc. Psychological and psychiatricd. EducationalThe results of these examinations yield sufficient data for compre-hending the delinquency of an individual, for discovering the causesor conditions of the crime, for understanding his psycho-physiologicalmake-up and its functioning-in a word, the nature of the dangerouscriminal. Then, through diagnosis and prognostication, the treat-ments necessary to cause this dangerousness to disappear can berecommended. The treatments ultimately consist of providing thedelinquent with the greatest and strongest motives for inhibition. Ifthis proves impossible, the protection of society demands his removalTWENTY-FIVE YEARS IN MEXICOfrom it. The authoritative body executing the sentences-composedof specialists independent of politics-selects the methods of realizingthis individualization (release on trial, granted when, because of thetreatment applied, the dangerous attitude has disappeared; retentionor longer imprisonment, when the dangerousness is still present).The sentences are therefore relatively rather than arbitrarily imposed.2. The commission provided for in the penal code of 1929 is de-termined to combat the private grantings of short periods of libertythat neither correct, restrain nor render the delinquent harmless anddo tend to turn him into a professional. It Rxes fines, damages anddisqualifications for proved accusations or charges.In special instances, the casual offender is offered the chanceto escape the execution of his sentence by good conduct (conditionalsentence); but when an act reveals a personality addicted to crime,an attempt is made to remove this criminal predisposition by a longperiod of strict segregation and by the application of adequate treat-ment.3. 'The system includes monetary fines-which do not allow forindividualization of the penalty-and payments in "days of work."The fine signifies a charge based on a consideration of the economicsituation of the one fined and of the daily proportion of the cost ofsalaries, wages, rents, etc. Methods of expediting both payment andprocedure are provided so that this may be made an actually effectivemeasure.4. All the money received in the form of fines, damages, bail,etc., is appropriated to assist in combating crime. It was formerlythe custom to devote a large portion of this amount to paving, light-ing and other municipal services, ignoring the present special objec-tives of prison improvement, treatments for delinquents, etc.Proponents of the new legislation are greatly concerned with theeconomic aspect of the penal problem. This phase has of necessitygiven rise to many detailed laws on payments of damages for lossescaused and on prison labor. Payment of damages was previouslyconsidered as a civil responsibility of the offender, since a crimepermitted either penal or civil action to be taken. Because of thiscivil responsibility, which was fixed before a civil court, payment oflosses occasioned by the offense was demanded. This erroneous wayof regarding the question was yielding unsatisfactory and quite value-less results as far as punishment and social protection were con-cerned. The new legislation completely changes the attitude towardpayment of losses sustained and provides:273274 JOSE ALMARAZa. That the payment be an integral part of the entire penalty.b. That the fine be extended to include the restoration of theloss and of the broken law as well as reimbursement for damages,whether they be material or subjective.c. That in case of death, the reparation include funeral expenses,doctor's bills and support for all those previously dependent (legally)upon the victim.d. That money received through fines be used-secondarily andin accordance with the nature of the payment-to supplement thefunds of the executive body for enabling the delinquent to make afresh start in life or for paying him for his prison work.e. That action for the payment of damages shall be taken bythe Public Ministry and decided upon by the penal judge when fixingthe penalty.f. That even if the person sustaining injury shall not demand it,reparation shall be exacted from the delinquent, for it forms part ofthe penalty and is social in purpose.g. That neither pardon, conditional sentence, release on trial,nor any other privilege shall relieve the offender of this payment.h. That the State assist the person sustaining injury so thathis case may be prosecuted gratuitously.i. That reparation payments be exacted before all else.j. For the establishment of a reserve fund for the authoritativebody executing the punishments, so that the loss sustained may alwaysbe recovered.The labor of the prisoners must be so organized as to bea. Obligatoryb. Usefulc. Productive, andd. Suited to their various qualifications.After an examination of the entire personality of each delinquent,the executive authority attempts to assign him to a special kind ofof work that shall combine these requisites and at the same time bemost advantageous to him. The work is paid for at a just rate, andfines and reparations for damages are covered by what is produced.Industrial and agricultural work has been organized in all the institu-tions for adults and minors, sick and well, normal and abnormal, anda large wood-distilling plant is going to be installed in the hope ofTWENTY-FIVE YEARS IN MEXICO 275better results. The intention is, through the well-organized work ofthe prisoners, to obtain a profit for them and to pay their expenses.5. It is only natural that with such a radical change in principle,entirely new institutions would be established. The most importantof these is doubtless that relating to the authoritative body executingthe punishments, called the Supreme Council of Social Defense andProtection. This is composed entirely of specialists in modem penallaw and related sciences such as criminal sociology and biology, psy-chiatry, statistics, etc. The five magistrates are well acquainted withthe cases of release on trial, retention, costs of fines, bail and pay-ment of damages as well as with the organization, direction and ad-ministration of prisons, reformatories, insane asylums, homes, sana-toriums, prison farms and camps, schools for correction and otherplaces for delinquents. They are assisted in their work by specialistswho are divided into various departments. The social division gathersinformation on the previous life of each delinquent, on his social andeconomic level and on the effects of the ambient air of the prison.It investigates the social causes of his delinquency and recom-mends the methods of most effectively lessening the influence ofthese factors. The medical division makes a medical and physicalexamination of each offender, a study of his constitution andfundamental physiology and presents suitable treatments from thispoint of view. It organizes and controls also the services in thedifferent establishments for prisoners. The division of normal andpathological psychology examines the prisoner, studies his personalityand his mental functions, classifies him, discovers his abnormalitiesand tendencies and advises the treatment and special activities heshould have. The educational division investigates the knowledgeof the delinquent, his scholastic level, his aptitude for learning, hisculture and brightness and indicates the nature of the instruction tobe given. There is also a judicial division that sees that the treatmentsrecommended by the other sections are applied, observes the resultsand is generally authoritative until the magistrates grant release ontrial (if there is evidence of correction and rehabilitation or of thedisappearance of a dangerous attitude).In this way, a penalty is neither applied nor terminated caie-lessly; it is executed with full scientifio knowledge of the personalityof each delinquent. Only thus can an effective fight be waged againstcrime.Other institutions of no less importance have been created. Themental hygiene clinic in the interest of crime prevention providesJOSE ALMARAZadequate treatment to epileptics, epileptoids, syphilitics and to indi-viduals whose constitution or psycho-physical make-up is leading themtoward crime. The prevention is more important than the cure. Anappreciable improvement has been noted in many individuals whohave regularly submitted to these preventive measures.Also worthy of mention are the industrial schools, institutionsof correction, homes, farms and reformatories for abnormal minorsand those feeble-minded who can be educated.Penal Procedure Has Been Subjected to Intelligent Reforms AlsoSingle judges have been replaced by Penal Courts consisting ofthree judges who frame the law-suits, study the personality of theaccused and submit their final opinion for the approval of one another.The case is discussed and sentence passed according to majority vote.The new legislation demands that the employees and officials ofthe prisons be technically trained and prove their specialization.Judicial law is thus separated from civil, and the career andjudicature of penalists is based on competence and age.The popular jury-an absurd relic of an era in which the grossestimitation held forth-is not included in the canons of positive lawand for that reason has disappeared. If social protection demandsmeasures for eliminating, curing, educating and rehabilitating the de-linquent personality, and if these can be perceived scientifically onlyby technicians specially trained in these studies, it is evident that adecision as to the dangerousness or lack of dangerousness of a de-linquent and the effective methods for rendering him harmless oruseful to society cannot be made by a group of individuals chosenby lot and lacking the most elementary knowledge of the subject.The remaining laws of the penal code have been formulated tofacilitate the rapid and unobstructed realization of substantial penalrearrangement.The authoritative body executing the punishments is constantlyreceiving statistical data that discloses the results of the new penallegislation. It has not ventured to contend that much has been ac-complished in practice already. So far, however, the chief magistrateof the Council of Social Protection and Defense is recording informa-tion that is eloquent as regards the curing of alcoholics and drugaddicts, the rehabilitation of delinquents suffering from glandularmalfunctioning, of homo-sexual minors, of individuals with sufficientTWENTY-FIVE YEARS IN MEXICO 277inhibitory motivations and of others who are delinquent because ofthe environment in which they have lived.Such, broadly speaking, is the important penal progress that hasbeen realized in Mexico since 1929. If the government continues tobe interested in assisting those officials charged with combatting crime,and if politics place no obstacles or difficulties in the way, it is almostcertain that we soon shall be able to show, by incontestable data, acessation of repeaters, a decrease in the number of delinquents andconsequently, effective social protection.

Progress in Mexican Penal Legislation

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Progress in Mexican Penal Legislation

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