Mandatory pre-trial detention: automatic incarceration?

Abstract

Since 2008, article 19 of the Mexican Constitution has included a catalogue of criminal offenses for which mandatory pre-trial detention must be imposed. Recently, this constitutional provision was amended—once again—to expand the list of such offenses. The very existence of mandatory pre-trial detention, and now its extension, has reignited debate over its legitimacy, considering the broader norms within the Mexican legal system, including those derived from the corpus of conventionality. However, beyond this highly relevant legal discussion, it is worth examining the mechanisms available to the accused to prevent the imposition of automatic pre-trial incarceration. If mandatory detention cannot be avoided through arguments concerning the fulfillment of legitimate procedural purposes, then it becomes necessary to identify alternative—albeit provisional—mechanisms to prevent the application of what would amount to anticipated punishment.