Revolution in Latin American criminal procedure: Diffusion of legal ideas from the periphery

American Journal of Comparative Law

Volumn 55, Issue 4, 2007, Pages 617-676

  Langer, Máximo ^a,b,c  

^a UNIVERSITY OF CALIFORNIA   (United States)

^b HARVARD LAW SCHOOL   (United States)

^c UNIVERSIDAD DE BUENOS AIRES   (Argentina)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 36248964116     PISSN: 0002919X     EISSN: None     Source Type: Journal    
DOI: 10.1093/ajcl/55.4.617     Document Type: Review

References (336)

1. There have been analyses, mostly in Spanish, on the Latin American criminal procedure reforms, but they have concentrated on describing the content of the legislative and institutional changes, justifying the need for the reforms, or assessing the success or failure of the reforms. See, e.g., LAS REFORMAS PROCESALES PENALES EN AMERICA LATINA (Julio B.J. Maier et al. eds., 2000);
2. JOSÉ MARÍA RICO, JUSTICIA PENAL Y TRANSICIÓN DEMOCRÁTICA EN AMÉRICA LATINA (1997);
3. Cristián Riego, Informe comparativo: Proyecto "Seguimiento de los procesos de reforma judicial en América Latina (2005), available at http://www.cejamericas.org/doc/proyectos/inf_comp.pdf.
4. There have also been studies on a few individual countries that this article will cite later. However, no study has attempted to explain why and how this wave of reforms happened throughout Latin America and who the main international, transnational, and domestic actors behind them have been. The only two partial exceptions that I am aware of are ALBERTO M. BINDER & JORGE OBANDO, DE LAS "REPÚBLICAS AÉREAS" AL ESTADO DE DERECHO (2004);
5. and Mauricio Duce & Rogelio Pérez Perdomo, Citizen Security and Reform of the Criminal Justice System in Latin America, in CRIME AND VIOLENCE IN LATIN AMERICA: CITIZEN SECURITY, DEMOCRACY, AND THE STATE 69 (Hugo Frilling & Joseph Tulchin eds., 2003), though these two works are incomplete in their coverage. The first work does not analyze these issues in a systematic way, and the second is very brief. In addition, these two studies omit the role of some of the central actors in this reform wave such as the transnational network of Latin American lawyers.
6. On the different ways in which the terms "accusatorial" (or "adversarial") and "inquisitorial" can be used, see Máximo Langer, La Dicotomía Acusatorio-Inquisitivo y la Importación de Mecanismos Procesales de la Tradición Jurídica Anglo-Sajona, in PROCEDIMIENTO ABREVIADO 97 (Julio Maier & Alberto Bovino eds., 2001).
7. On the best way to define the terms "adversarial" and "inquisitorial" in order to capture the current differences between the criminal procedures of common and civil law, see Máximo Langer, The Rise of Managerial Judging in International Criminal Law, 53 AM. J. COMP. L. 835, 838-47 (2005).
8. For other classifications of legal transplants, see, e.g., Jonathan M. Miller, A Typology of Legal Transplants: Using Sociology, Legal History and Argentine Examples to Explain the Transplant Process, 51 AM. J. COMP. L. 839 (2003).
9. See, e.g., ANNE-MARIE SLAUGHTER, A NEW WORLD ORDER (2004);
10. B.S. Markesinis, Learning from Europe and Learning in Europe, in THE GRADUAL CONVERGENCE: FOREIGN IDEAS, FOREIGN INFLUENCES, AND ENGLISH LAW ON THE EVE OF THE 21ST CENTURY 1, 30 (Basil S. Markesinis ed., 1994);
11. Ugo Mattei, Efficiency in Legal Transplants: An Essay in Comparative Law and Economics, 14 INT'L REV. L. & ECON. 3 (1994).
12. See, e.g., Jodi Finkel, Judicial Reform as Insurance Policy: Mexico in the 1990s, 47 LATIN AM. POL. & SOC'Y 87 (2005);
13. Jodi Finkel, Judicial Reform in Argentina: How Electoral Incentives Shape Institutional Change, 39 LATIN AM. RES. REV. 56 (2004);
14. Ran Hirschl, The Political Origins of the New Constitutionalism, 11 IND. J. GLOBAL LEGAL STUD. 71 (2004).
15. See, e.g., Alan Watson, Aspects of Reception of Law, 44 AM. J. COMP. L. 335, 339-41 (1996).
16. See, e.g., Duncan Kennedy, Three Globalizations of Law & Legal Thought: 1850-2000, in THE NEW LAW AND ECONOMIC DEVELOPMENT: A CRITICAL APPRAISAL 19 (David M. Trubek & Alvaro Santos eds., 2006).
17. See, e.g., STEPHEN KRASNER, SOVEREIGNTY: ORGANIZED HYPOCRISY (1999);
18. Richard Steinberg, The Transformation of European Trading States, in THE STATE AFTER STATISM: NEW STATE ACTIVITIES IN THE AGE OF L IBERALIZATION (Jonah D. Levy ed., 2006);
19. Andrew T. Guzman, A Compliance-Based Theory of International Law, 90 CAL. L. REV. 1823 (2002).
20. In the case of legal reforms in Latin America, a number of critics have argued that the United States has imposed its own institutions on Latin American countries through such mechanisms. See, e.g., JAMES A. GARDNER, LEGAL IMPERIALISM: AMERICAN LAWYERS AND FOREIGN AID IN LATIN AMERICA (1980).
21. See, e.g., IMMANUEL WALLERSTEIN, THE MODERN WORLD-SYSTEM I: CAPITALIST AGRICULTURE AND THE ORIGINS OF THE EUROPEAN WORLD-ECONOMY IN THE SIXTEENTH CENTURY (1974);
22. IMMANUEL WALLERSTEIN, THE MODERN WORLD-SYSTEM II: MERCANTILISM AND THE CONSOLIDATION OF THE EUROPEAN WORLD-ECONOMY, 1600-1750 (1980);
23. Ugo Mattei, A Theory of Imperial Law: A Study on U.S. Hegemony and the Latin Resistance, 10 IND. J. GLOBAL LEGAL STUD. 383 (2003).
24. See, e.g., W. RICHARD SCOTT ET AL., INSTITUTIONAL ENVIRONMENTS AND ORGANIZATIONS: STRUCTURAL COMPLEXITY AND INDIVIDUALISM (1994);
25. Martha Finnemore, Norms, Culture, and World Politics: Insights from Sociology's Institutionalism, 50 INT'L ORG. 325, 331-34 (1996) (book review);
26. Alison Brysk et al., After Empire: National Identity and Post-Colonial Families of Nations, 8 EUR. J. INT'L REL. 267 (2002);
27. Gianmaria Ajani, By Chance and Prestige: Legal Transplants in Russia and Eastern Europe, 43 AM. J. COMP. L. 93 (1995).
28. In the case of Latin America, a number of scholars have pointed out how identification with a certain reference group of States or foreign actors has played a role in the diffusion of legal ideas in the region. See, e.g., Jorge L. Esquirol, The Fictions of Latin American Law (Part I), 1997 UTAH L. REV. 425 (1997).
29. See, e.g., YVES DEZALAY & BRYANT G. GARTH, THE INTERNATIONALIZATION OF PALACE WARS (2002);
30. Loïc Wacquant, Penal Truth Comes to Europe: Think Tanks and the 'Washington Consensus' on Crime and Punishment, in CRIME, TRUTH AND JUSTICE: OFFICIAL INQUIRY, DISCOURSE, KNOWLEDGE 161 (George Gilligan & John Pratt eds., 2004).
31. See, e.g., Kal Raustiala, The Architecture of International Cooperation: Transgovernmental Networks and the Future of International Law, 43 VA. J. INT'L L. 1 (2002).
32. On the distinction between fields of production and fields of reception, see Pierre Bourdieu, The Social Conditions of the International Circulation of Ideas, in BOURDIEU: A CRITICAL READER 221 (Richard Shusterman ed., 1999).
33. For a theory of reception, see Máximo Langer, From Legal Transplants to Legal Translations: The Globalization of Plea Bargaining and the Americanization Thesis in Criminal Procedure, 45 HARV. INT'L L.J. 1 (2004) [hereinafter Langer, Legal Transitons].
34. See, e.g., DIEGO LÓPEZ-MEDINA, TEORÍA IMPURA DEL DERECHO (2004);
35. Amr Shalakany, Between Identity and Redistribution: Sanhuri, Genealogy and the Will to Islamise, 8 ISLAMIC L. & SOC'Y 203 (2001).
36. For examples of accounts that provide a pattern of diffusion resembling the one presented in Figure 2, see, e.g., PETER ANDREAS & ETHAN NADELMANN, POLICING THE GLOBE (2006); DEZELAY & GARTH, supra note 11; Steinberg, supra note 8.
37. It is important to distinguish between peripheral and semi-peripheral countries in order to conceptualize the inequalities and differences that exist between developing, southern, and eastern countries. These differences may be important in explaining the processes of diffusion from the periphery.
38. Even if the literature on diffusion and legal transplants has not conceptualized diffusion from the periphery as a model of diffusion until now, cases of horizontal or semi-horizontal diffusion from the periphery are not unknown. See, e.g., Bernardino Bravo Lira, Difusión del Código Civil de Bello en los Países de Derecho Castellano y Portugués, in ANDRÉS BELLO Y EL DERECHO LATINOAMERICANO 343 (Rafael Di Prisco & José Ramos eds., 1987) (describing the influence of the Bello Code on the civil codes of several Latin American countries);
39. Raúl L. Madrid, Ideas, Economic Pressures, and Pension Privatization, 47 LATIN AM. POL. & SOC'Y, June 2005, at 23 (explaining how the Chilean model of pension privatization diffused to other Latin American countries irrespective of the participation of actors from central countries).
40. For examples of triangular diffusion from the periphery, see ALISON BRYSK, FROM TRIBAL VILLAGE TO GLOBAL VILLAGE: INDIAN RIGHTS AND INTERNATIONAL RELATIONS IN LATIN AMERICA (2000) (describing how the Indian rights movement in Latin America has used international law and alliances with international actors to change agendas, discourse and rules through out the region); Madrid, supra note 17 (explaining that Chile was first in trying pension privatization, but the World Bank had an important role in diffusing the idea to other countries in Latin America and Central and Eastern Europe);
41. Ron Pagnucco, The Transnational Strategies of the Service for Peace and Justice in Latin America, in TRANSNATIONAL SOCIAL MOVEMENTS AND GLOBAL POLITICS 123 (Jackie Smith et al. eds., 1997) (describing how the Service for Peace and Justice, a Latin American transnational social movement organization, allied with international actors in order to advance its human rights crusades in Latin America).
42. Keck and Sikkink have articulated the concept of the boomerang pattern of influence in which domestic non-governmental organizations (NGOs) bypass their state and directly search out international allies to try to bring pressure on their state. See MARGARET E. KECK & KATHRYN SIKKINK, ACTIVISTS BEYOND BORDERS: ADVOCACY NETWORKS IN INTERNATIONAL POLITICS 12-13 (1998). The difference between the boomerang pattern of influence and triangular diffusion from the periphery is that while the former captures strategies that local actors may use to advance their local agendas, the latter captures processes of diffusion between two or more countries.
43. See, e.g., JULIO B. J. MAIER, I DERECHO PROCESAL PENAL 329, 333 (2d ed. 1996) [hereinafter MAIER, DERECHO].
44. For a recent edition in English, see 3 LAS SIETE PARTIDAS (Samuel Parsons Scott & Robert I. Burns eds., Samuel Parsons Scott trans., 2000).
45. See, e.g., KENNETH KARST & KEITH ROSENN, LAW AND DEVELOPMENT IN LATIN AMERICA (1975);
46. MATTHEW C. MIROW, A HISTORY OF PRIVATE LAW AND INSTITUTIONS IN SPANISH AMERICA (2004);
47. Roberto Gargarella, Towards a Typology of Latin American Constitutionalism, 1810-60, LATIN AM. RES. REV., June 2004, at 141.
48. See, e.g., ADHEMAR ESMEIN, HISTOIRE DE LA PROCÉDURE CRIMINELLE EN FRANCE (1882);
49. JEAN-PIERRE ROYER, HISTOIRE DE LA JUSTICE EN FRANCE, DE LA MONARCHIE ABSOLUE À LA RÉPUBLIQUE (3d ed. 2001). On the notion of conceptualizing this type of process as a process of translation, see Langer, Legal Translations, supra note 13.
50. See, e.g., ESMEIN, supra note 22; ROYER, supra note 22.
51. See, e.g., RENÉ GARRAUD, TRAITÉ THÉORIQUE ET PRATIQUE D'INSTRUCTION CRIMINELLE ET DE PROCÉDURE PÉNALE 10-22 (1907).
52. See, e.g., ESMEIN, supra note 22; ROYER, supra note 22.
53. See, e.g., Jorge Montt, Mensaje del Código de Procedimiento Penal, Santiago, 31 de Diciembre de 1894, in CÓDIGO DE PROCEDIMIENTO PENAL DE LA REPÚBLICA DE CHILE 4 (1957) (describing the European tendencies in this area). The Chilean Code of 1906 applied in that country until the 2000s.
54. On Guatemala's adoption of the Livingston Code between 1836 and 1838, see Daniele Pompejano, Jurisdicciones y Poder Politico: Guatemala entre Liberales y Conservadores, in DINÁMICAS DE ANTIGUO RÉGIMEN Y ORDEN CONSTITUCIONAL: REPRESENTACIÓN, JUSTICIA Y ADMINISTRACIÓN EN IBEROAMÉRICA 397 (Marco Bellingeri ed., 2000);
55. David Vela, Vida, Pasión y Muerte de los Códigos de Livingston, in V REVISTA DE LA FACULTAD DE CIENCIAS JURÍDICAS Y SOCIALES DE GUATEMALA 160 (1943).
56. For instance, the Argentinean Constitution of 1853 mentions the establishment of trial by jury three times (arts. 24, 67.11 & 102). In 1871, the Argentine Congress created a commission of two jurists, Florentino González and Victorino de la Plaza, to draft a bill establishing and regulating the jury, and another bill on criminal procedure for the federal system. The two jurists presented their drafts (which were inspired by U.S. law) to the Argentine Congress on Apr., 24, 1873, but neither bill passed. See, e.g., MAIER, DERECHO, supra note 19, at 403-05.
57. See, e.g., Andrés D'Alessio, The Function of the Prosecution in the Transition to Democracy in Latin America, in TRANSITION TO DEMOCRACY IN LATIN AMERICA: THE ROLE OF THE JUDICIARY 187 (Irwin P. Stotzky ed., 1993); Montt, supra note 26, at 4-5; Vela, supra note 27.
58. On the development of the inquisitorial criminal procedure model in continental Europe, see MAIER, DERECHO, supra note 19, at 288-328.
59. On the disappearance of legal torture in continental Europe, see JOHN LANGBEIN, TORTURE AND THE LAW OF PROOF (1977);
60. Mirjan Damaška, The Death of Legal Torture, 87 YALE L.J. 860 (1978).
61. For remnants of the system of legal proof in Latin American codes, see, e.g., ARGENTINE CRIMINAL PROCEDURE CODE OF 1888 [ARG. CRIM. PROC. COD. 1888] arts. 306 & 316;
62. CHILEAN CRIMINAL PROCEDURE CODE OF 1906 [CHILE CRIM. PROC. COD. 1906], arts. 459, 484, & 485-88. The Code of 1888 applied in Argentine until 1992.
63. See, e.g., Montt, supra note 26, at 8 (describing how Book II of the Chilean code of 1906 distinguished between these two phases).
64. The inquisitorial codes usually established that the evidence should be produced in a public hearing during the verdict phase. See, e.g., CHILE CRIM. PROC. COD. 1906 art. 454. However, the courts often did not have courtrooms to hold such public hearings and would take evidence in the same way at the pretrial investigation and verdict phases. I base this observation on my practical experience with the criminal justice system of the city of Buenos Aires, Argentina. I have heard similar descriptions from practitioners in other Latin American countries such as Colombia and Guatemala.
65. On the written dossier in the Chilean Code of 1906, see arts. 76-77 & 117; in the Argentine Criminal Procedure Code of 1888, see, e.g., MAIER, DERECHO, supra note 19, at 411.
66. On the Argentine Criminal Procedure Code of 1888 on this issue, see, e.g., MAIER, DERECHO, supra note 19, at 409.
67. This meant that the judge could investigate by her own motion whether there was an offense for which the defendant was criminally responsible. At the same time, she could also issue warrants, order forfeitures and the pretrial detention of the defendant. See, e.g., CHILE CRIM. PROC. COD 1906 arts. 156-83 & 255.
68. See, e.g., CHILE CRIM. PROC. COD. 1906 arts. 78-80;
69. ARG. CRIM. PROC. COD. 1888 art. 180. This last article was later changed to state that after a initial period of secrecy, the defendant had access to the investigation. However, judges could renew or extend, without limit, this initial period of secrecy. See MAIER, DERECHO, supra note 19, at 411.
70. See, e.g., Interview #33 (describing this phenomenon in Honduras before the criminal procedure reform).
71. See, e.g., ARG. CRIM. PROC. COD. 1888 art. 255.
72. See, e.g., MAIER, DERECHO, supra note 19, at 410-11.
73. See, e.g., CHILE CRIM. PROC. CODE 1906 arts. 23-24, 28, & 36.
74. Regarding the Chilean Criminal Procedure Code of 1906, see Montt, supra note 26, at 5-7 (this Code has not been able to separate the roles of the investigation and adjudication judge). In the case of the Argentine Criminal Procedure Code of 1888, this merging of roles occurred in the federal courts for all kinds of criminal cases. However, in the courts of the city of Buenos Aires - which were regulated by the same code - there were two different judges in charge of the pretrial investigation and adjudication phases. See, e.g., MAIER, DERECHO, supra note 19, at 409.
75. See, e.g., Chile Crim. Proc. Cod. 1906 arts. 424-97.
76. Art. 479 of the Argentine Criminal Procedure Code of 1888 specified that in the adjudication phase the evidence would be produced in a public hearing. But since the whole procedure was written, the production of evidence was not actually accessible to the citizenry. See, e.g., MAIER, DERECHO, supra note 19, at 411.
77. See, e.g., MAIER, DERECHO, supra note 19, at 409; CHILE CRIM. PROC. COD. 1906 art. 449.
78. Jurisdictions not following this model included Cuba, which stayed under Spanish control until the end of the 19th century and adopted the accusatorial ideas of the Spanish legislation of 1882; the Dominican Republic, which adopted the ideas of the French Code d'instruction criminelle of 1808; and Brazil, which was influenced by Portugal. See Eberhard Struensee & Julio Maier, Introducción, in LAS REFORMAS PROCESALES PENALES EN AMÉRICA LATINA 22 (Julio B. J. Maier et al. eds., 2000).
79. See, e.g., Mauricio Duce, Criminal Procedure Reform and the Ministerio Publico: Towards the Construction of a New Criminal Justice in Latin America 12, 16 (1993) (unpublished Juridical Science Masters thesis, Stanford Law School) (on file with the author).
80. On the concept of the opened policy window, see JOHN W. KINGDON, AGENDAS, ALTERNATIVES, AND PUBLIC POLICIES 203 (2d ed. 1997) ("[An] open policy window is an opportunity for advocates to push their pet solutions or push attention to their special problems.").
81. See, e.g., Struensee & Maier, supra note 47, at 17 (the passing of the new codes in Latin America aimed at developing criminal laws respectful of the rule of law). On transitions to democracy in Latin America, see, e.g., TRANSITIONS FROM AUTHORITARIAN RULE (Guillermo O'Donnell et al. eds., 1986);
82. FAULT LINES OF DEMOCRACY IN POST-TRANSITION LATIN AMERICA (Felipe Agüero & Jeffrey Stark eds., 1998).
83. On the increasing importance of human rights in Latin America since the 1970s, see, e.g., CECILIA MEDINA QUIROGA, THE BATTLE OF HUMAN RIGHTS: GROSS, SYSTEMATIC VIOLATIONS AND THE INTER-AMERICAN SYSTEM (1988);
84. Stephen C. Ropp & Kathryn Sikkink, International Norms and Domestic Politics in Chile and Guatemala, in THE POWER OF HUMAN RIGHTS 172 (Thomas Risse et al. eds., 1999).
85. See, e.g., MAIER, DERECHO, supra note 19, at 405-12 & 469-733 (giving content to constitutional and human rights related to criminal procedure);
86. ELÍAS CARRANZA ET AL., EL PRESO SIN CONDENA EN AMÉRICA LATINA Y EL CARIBE: ESTUDIO COMPARATIVO, ESTADÍSTICO Y LEGAL DE TREINTA PAÍSES, Y PROPUESTAS PARA REDUCIR EL FENÓMENO (1983);
87. Elías Carranza Lucero, Estado Actual de la Prisión Preventiva en América Latina y Comparación con los Países de Europa, 26 JUECES PARA LA DEMOCRACIA 81 (1996). See also Interview #19 (the network pretty much defined not only the solution, but also the problem).
88. See, e.g., John Bailey & Lucía Dammert, Public Security and Police Reform in the Americas, in PUBLIC SECURITY AND POLICE REFORM IN THE AMERICAS 8-9 (John Bailey & Lucía Dammert eds., 2006);
89. Lisa Bhansali & Christina Biebesheimer, Measuring the Impact of Criminal Justice Reform in Latin America, in PROMOTING THE RULE OF LAW ABROAD 305 (Thomas Carothers ed., 2006);
90. Laura Chinchilla, Experiences with Citizen Participation in Crime Prevention in Central America, in CRIME AND VIOLENCE IN LATIN AMERICA: CITIZEN SECURITY, DEMOCRACY, AND THE STATE 93 (Hugo Frühling et al. eds., 2003) 205, 208-09;
91. Andrew Morrison et al., The Violent Americas: Risk Factors, Consequences, and Policy Implications of Social and Domestic Violence, in id. 93;
92. Catalina Smulovitz, Citizen Insecurity and Fear: Public and Private Responses, in id. 125. The actual crime rates for most of the region seem to have declined in the second half of the 1990s, but not in all countries.
93. Edgardo Alberto Amaya, Security Policies in El Salvador, 1992-2002, in BAILEY & DAMMERT, supra note 52, at 132, 137 (despite victimization rates showing a decline in crime in El Salvador since 1994, there has been a persistent perception of insecurity that remains); Smulovitz, supra note 52, at 125 (in Argentina, society's concern about crime has increased substantially since Apr. 1997, making it one of the nation's three top concerns).
94. See, e.g., ALBERTO BINDER, Perspectivas de la Reforma Procesal Penal en America Latina, in JUSTICIA PENAL Y ESTADO DE DERECHO 201, 209 (1993) (the inquisitorial criminal procedure is totally inefficient in fighting against modern criminality) [hereinafter Binder, Perspectivas];
95. Alberto Binder, Proceso penal y desarrollo institutional. La justicia penal a las puertas del siglo XXI, in id. 171 (the inquisitorial system generates a slow and bureucratic administration of criminal justice that hinders the ability to investigate crime).
96. See, e.g., FUNDACION MYRNA MACK, CORRUPCIÓN EN LA ADMINISTRACIÓN DE JUSTICIA (1993);
97. SUSAN ROSE-ACKERMAN, CORRUPTION AND GOVERNMENT (1999);
98. FIGHTING CORRUPTION IN DEVELOPING COUNTRIES: STRATEGIES AND ANALYSIS (Bertram I. Spector ed., 2005).
99. See, e.g., Binder, Perspectivas, supra note 54, 222-23 (the legitimacy of the judges and the administration of justice require the accountability of criminal trials);
100. Luis Enrique Oberto G., Sobre la Reforma Procesal Penal de Venezuela en el Marco de la Convención Interamericana contra la Corrupción, in EDGARDO BUSCAGLIA ET AL., LA LUCHA INTERNACIONAL CONTRA LA CORRUPCIÓN Y SUS REPERCUSIONES EN VENEZUELA 65 (1998);
101. REVISTA SISTEMAS JUDICIALES: JUSTICIA Y CORRUPCIÓN (2006).
102. A few other jurisdictions also adopted more accusatorial codes during the 20th century. They included Peru with its code of 1940, Brazil with its code of 1941, and Panama with its code of 1986. But none of these codes influenced the wave of criminal procedure reforms that are the subject of this article and this is why we will concentrate on the Cordoba code of 1939.
103. See Decreto de Designacion de la Comision Redactora, Cordoba, enero 19 de 1937, in PROVINCIA DE CORDOBA, CODIGO DE PROCEDIMIENTO PENAL LEY 3831, at 17 (Edicion Oficial 1941). Governor Sabattini had appointed a third jurist, Ernesto S. Peña, to be a member of the commission, but he was unable to participate due to other commitments. See Nota de la Comision, Córdoba, Noviembre 27 de 1937, in id. at 19 [hereinafter Nota].
104. See PROVINCIA DE CORDOBA. CODIGO DE PROCEDIMIENTO PENAL, Exposicion de Motivos, in id. at 25-98 [hereinafter Motivos]. The Italian Criminal Procedure Code of 1930 was lauded for its legislative technique, but based its content on Fascist ideology, whereas the 1913 Code was seen as being more liberal. The Cordoba Code adopted the legislative technique of the 1930 Italian Code while basing its substantial content on ideas from the 1913 Code. See, e.g., MAIER, DERECHO, supra note 19, at 416.
105. To gain a sense of the legal sophistication of Vélez Mariconde and Soler, it suffices to read the introduction to the Code, which is over 70 pages. See Motivos, supra note 59, at 25-98.
106. See PROVINCIA DE CORDOBA. CODIGO DE PROCEDIMIENTO PENAL (1939), art. 382 et seq.
107. See id. at arts. 68, 99-109, 173.3-174, 211-14, 247-49, & 325-26.
108. See id. at art. 64, 197, & 311-24 (for offenses with a maximum penalty of two years of imprisonment, the prosecutor will be in charge of the pretrial investigation). This reform aimed to increase the efficiency of the criminal justice system in dealing with non-serious offenses. See Motivos, supra note 59, at 60-61.
109. Vélez Mariconde and Soler did not include any kind of lay participation in the trial court because they apparently distrusted the jury. See Motivos, supra note 59, at 41, 70, & 85.
110. See Motivos, supra note 59, at 37; PROVINCIA DE CORDOBA, CODIGO DE PROCEDIMIENTO PENAL (1939), art. 5.
111. See id. at arts. 25 & 203-96.
112. See id. at arts. 138 & 213.
113. See Nota, supra note 58, at 19 (the new criminal procedure code responds to the liberal postulates of the constitution); Motivos, supra note 59, at 25 (the Argentine inquisitorial codes followed a Spanish criminal procedure code that Spain itself had already abandoned).
114. See, e.g., MAIER, DERECHO, supra note 19, at 422.
115. Interview #54.
116. Vélez Mariconde drafted the criminal procedure codes for the provinces of Corrientes and Mendoza. See, e.g., MAIER, DERECHO, supra note 19, at 421.
117. See, e.g., Ricardo Levene (h.), Prologo, in C. VAZQUEZ IRUBUBIETA & R. A. CASTRO, I PROCEDIMIENTO PENAL MIXTO 11 (1968); MAIER, DERECHO, supra note 19, at 421.
118. See, e.g., MAIER, DERECHO, supra note 19, at 424. For an overview on the historical background of this reform, see LINN A. HAMMERGREN, THE POLITICS OF JUSTICE AND JUSTICE REFORM IN LATIN AMERICA 219-23 (1998).
119. Interviews #35 & #62.
120. For instance, Arturo Frondizi's civilian administration that had asked Vélez Mariconde to draft a federal criminal procedure code for Argentina only stayed in power for three years (1959-62) before being ousted by a military coup. Between 1928 and 1983, military coups ousted all democratically elected governments in Argentina before the end of their constitutional terms - with the exception of General Juan Domingo Peron's first term in 1946-52.
121. See, e.g., CONADEP, NUNCA MÁS (1984);
122. THE COMMISSION ON THE TRUTH FOR EL SALVADOR, FROM MADNESS TO HOPE: THE 12-YEAR WAR IN EL SALVADOR (1993), available in English at http://www.usip.org/library/tc/doc/reports/ el_salvador/tc_es_03151993_toc.html;
123. OFICINA DE DERECHOS HUMANOS DEL ARZOBISPADO DE GUATEMALA, GUATEMALA: NUNCA MAS (1998);
124. UNITED NATIONS, INFORME DE LA COMISIÓN DE ESCLARECIMIENTO HISTÓRICO (1999).
125. See, e.g., CONSEJO PARA LA CONSOLIDACION DE LA DEMOCRACIA, REFORMA CONSTITUCIONAL: DICTAMEN PRELIMINAR DEL CONSEJO PARA LA CONSOLIDACIÓN DE LA DEMOCRACIA (1986).
126. Mirna Goransky, El derecho penal que he vivido. Entrevista al Profesor Julio B.J. Maier, in ESTUDIOS SOBRE JUSTICIA PENAL. HOMENAJE AL PROFESOR JULIO B. J. MAIER 977, 992 (David Baigún et al., 2005); Interviews #26 and #54.
127. See Fundación Konex, http://www.fundacionkonex.org/premios/ curriculum.asp?ID=2808 (last visited June 7, 2007).
128. See, e.g., PROYECTO DE CÓDIGO PROCESAL PENAL DE LA NACIÓN, Exposición de Motivos, at 651-55 (1988) [hereinafter Exposición].
129. Id. at 654-55.
130. Id. at 653.
131. Id. at 654-55.
132. Id. at 668. In fact, Maier presented the Draft of 1986 as a continuation of the reform process that the modern codes had begun. Id. at 652. Maier also drew from other Argentinean modern codes; two drafted codes that were never enacted; French, Italian and Spanish criminal procedure codes; and Anglo-American ideas. Id. at 668-69.
133. Interview #26.
134. On the idea of legal translation, see Langer, Legal Translations, supra note 13.
135. See, e.g., MAIER, DERECHO, supra note 19, at 410-11, 586-87, & 645-46.
136. ANTEPROYECTO DE LEY ORGÁNICA PARA LA JUSTICIA PENAL Y EL MINISTERIO PÚBLICO 15 (1988) [hereinafter ANTEPROYECTO]. Maier also maintained that since the Argentine Constitution mentions trial by jury three times, lay participation was actually constitutionally required. See, e.g., Exposición, supra note 80, at 653;
137. ANTEPROYECTO at 15-16.
138. See, e.g., MAIER, DERECHO, supra note 19, at 428-29. Since Maier wanted to ensure that the majority of the court had legal training but were not professional judges, he cleverly designed a court composed of five members: two permanent judges, two lay people, and a lawyer. See ANTEPROYECTO, supra note 88, arts. 30, 71 & 81. Furthermore, in order to preserve the impartiality of the trial decision-makers, the Draft of 1986 departed from the Cordoba Code and the German StPO by prohibiting judges who had made decisions on a case during the pretrial investigation from serving as trial judges in the same case. See PROYECTO DE CÓDIGO PROCESAL PENAL DE LA NACIÓN (1986), art. 22 [hereinafter DRAFT], In addition, partially inspired by AngloAmerican ideas, the Draft of 1986 gave the trial court a less active role in the interrogation of witnesses, and allowed the court to decide on the verdict and assign sentencing in two different hearings. Id. at art. 287.
139. See, e.g., MAIER, DERECHO, supra note 19, at 579.
140. See DRAFT, supra note 89, at art. 41. Based on the StPO § 136a, the Draft also rendered any information obtained in violation of any of the provisions regulating statement and testimony by the defendant inadmissible, even if the defendant had consented to waive his protections under the provision. Id. at art. 52.
141. Id. at art. 48. The basis for this prohibition was the extensive use of torture by the police and military government in Argentina during times of military rule. Maier did not cite any source for this provision. But his idea probably was ensuring that police had no incentive to use torture against detainees.
142. See II JULIO B. J. MAIER, II LA ORDENANZA PROCESAL PENAL ALEMANA 77-80 (1982).
143. On the regulation of this issue in the Cordoba Code of 1939, see ALFREDO VÉLEZ MARICONDE, EL PROYECTO DE CÓDIGO DE PROCEDIMIENTO PENAL PARA LA PROVINCIA DE CÓRDOBA (1939), art. 345.
144. See DRAFT, supra note 89, at art. 202.2.
145. Id. at art. 202 (mentioning StPO § 112 as its source). Unlike in § 112a of the StPO, which establishes the risk of a defendant committing certain crimes as sufficient grounds for pretrial detention, Maier concluded that the presumption of innocence only permitted the pretrial detention of a defendant when there was a risk of flight or of tampering with evidence. See JULIO B. J. MAIER, SOBRE LA LIBERTAD DEL IMPUTADO (1981). This is why he discarded dangerousness as a justification for pretrial detentions and did not include StPO § 112a in the Draft of 1986.
146. Recall that in the Cordoba Code, the prosecutor was in charge of the pretrial investigation only in minor cases.
147. See Exposición, supra note 80, at 660-61.
148. Id. at 659-61.
149. Id. at 659 (the good inquisitor kills the good judge and the good judge removes the good inquisitor).
150. Id. at 661, art. 68.
151. Id. at 661.
152. See id. at 661, and the sources cited by the DRAFT for arts. 68 & 232.
153. See DRAFT, supra note 89, at arts. 69, 232 & 250.
154. Id. at art. 255.
155. Id at art. 256. Since the Draft of 1986 gave a more prominent role to prosecutors, Maier also drafted a statute regulating the office of the prosecutor. He thought that the system would become more efficient not only by distinguishing more clearly between prosecutorial and adjudicatory roles, but also by creating a powerful office of the prosecutor that would have flexibility in assigning cases to prosecutors, allow for prosecutorial specialization in the investigation of certain crimes, and serve as a shield against political interference. See ANTEPROYECTO, supra note 88.
156. See Exposición, supra note 80, at 669.
157. According to this principle, in certain cases explicitly specified by statute, the prosecutor could dismiss the charges with the agreement of the court even if the offense had been committed. See DRAFT, supra note 89, at art. 230.
158. After the defendant testified during the pretrial phase, the court could order the suspension of the prosecution provided that the defendant meets a specific set of conditions. Id. at art. 231. Although the Draft did not cite any source for this mechanism, it was probably inspired by the
159. If after issuing the indictment, the prosecutor and the defendant agreed on the use of this mechanism, the court could convict the defendant without holding a trial. The sources for this mechanism were the StPO, the Italian Code of 1930, and the codes of the provinces of Buenos Aires and Cordoba. See DRAFT, supra note 89, at arts. 371-73.
160. See, e.g., Exposición, supra note 80, at 651 (the Code of 1888 left the country's criminal procedure a century out of date and is culturally outdated), 654 (the Code of 1888 is against universal practice).
161. Id. at 652 (this draft aims at rescuing the republican system in the administration of criminal justice); Interview #26 (for Maier and his group, the project of reforming the administration of criminal justice had a strong political dimension).
162. See, e.g., HACIA UNA NUEVA JUSTICIA PENAL (Consejo para la Consolidación de la Democracia ed., 1989). One of the main critics of the Draft was Ricardo Levene, a former judicial protégé of Domingo Perón. Levene criticized the Draft of 1986, and proposed the adoption of a modern code instead. See Interviews #26 & #54.
163. Goransky, supra note 78, at 992-93 (describing the support of Carlos Arslanián and Joaquín Da Rocha for the Draft of 1986).
164. See, e.g., Maier, Derecho, supra note 19, at 432.
165. Levene drafted this Code. Levene had also followed the model of the modern codes when he drafted the 1960 Criminal Procedure Code for the province of La Pampa. However, he had done a conservative reading of the codes that increased police powers and removed the prosecutor from investigations for minor offenses. Interview #26.
166. For instance, the Code of 1991 gave the preliminary investigation judge the power to delegate the pretrial investigation to the prosecutor, and prohibited police from interrogating a suspect. See CÓD. PEN. [Arg.] arts. 196 & 184.
167. Later reforms to the Code of 1991 also incorporated ideas that the Draft of 1986 had included such as diversion mechanisms and plea bargaining. See, e.g., CÓD PEN. [Arg.] arts. 293 & 431.
168. See Province of Cordoba, Argentina, Ley 8123 (passed on Dec. 5, 1991; published on Jan. 16, 1992).
169. Goransky, supra note 78, at 992; Interview #26.
170. See Historia del Instituto Iberoamericano de Derecho Procesal, http://www.iidp.org/index.cgi?wid_seccion=3&wid_item=8 (last visited June 7, 2007).
171. The membership of the Institute can be viewed at http://www.iidp.org/ index.cgi?wAccion=personas&wParam=miembros&wid_seccion= 4&wid_grupo_news=0.
172. See Palabras del doctor Fix-Zamudio en la ceremonia luctuosa, in REFORMA PROCESAL. ESTUDIOS EN MEMORIA DE NICETO ALCALÁ-ZAMORA Y CASTILLO 9 (1987).
173. See Breve Historia del Código Modelo, in CÓDIGO PROCESAL PENAL MODELO PARA IBEROAMÉRICA 7 (1989) [hereinafter Breve Historia].
174. See La Integración Americana, Hacia la Integración Institutional. Tratados, Organismos, Tribunales, Códigos Modelos, in INSTITUTO IBEROAMERICANO DE DERECHO PROCESAL, EL CÓDIGO PROCESAL CIVIL MODELO PARA IBEROAMERICA (1988).
175. Alcalá Zamora thought that the Cordoba code of 1939 was particularly good because it had wisely integrated the spirit of the Spanish criminal procedure code and the technique of the German and Italian criminal procedure codes. See MAIER, DERECHO, supra note 19, at 417.
176. See Breve Historia, supra note 121, at 7-8.
177. See Breve Historia, supra note 121, at 8.
178. Interview #54; Goransky, supra note 78, at 991.
179. Goransky, supra note 78, at 991; Breve Historia, supra note 121, at 8-9.
180. Breve Historia, supra note 121, at 8-9; Julio B. J. Maier, Historia Breve del Codigo Procesal Penal Modelo para Iberoamérica 3 (on file with the author).
181. See CÓDIGO PROCESAL PENAL MODELO PARA IBEROAMÉRICA, note to art. 78 (including the possibility that the victim could be given more procedural powers than in the Draft of 1986, and that any citizen may be a private prosecutor in the criminal process).
182. Id. at note to art. 78.
183. Id. at Appendix II.
184. See Goransky, supra note 78, at 993.
185. Interview #26 (Maier criticized the Guatemalan criminal justice system for having the same flaws as the Argentine criminal justice system); Alberto M. Binder & Julio B. J. Maier, Conclusión del Proyecto Base. Entrega Oficial al Organismo Judicial, in NUEVA LEGISLACION PROCESAL PENAL: JUICIO ORAL 155 (1992-93).
186. For an analysis that explains the main inquisitorial features of the Guatemalan code of 1973, see Luis Rodolfo Ramírez & Miguel Ángel Urbina, Guatemala, in LAS REFORMAS PROCESAL PENALES EN AMÉRICA LATINA 456-65 (Julio B. J. Maier et al. eds., 2000).
187. See Interviews #26, #38, #44, & #50. Even though Vásquez Martínez was not a criminal procedure scholar, he had drafted a criminal procedure code for Guatemala in 1986 with Hugo González Cervantes. This draft was based on Clariá Olmedo's Bases for a Model Code. Vásquez Martínez and González Cervantes' draft did not become law. See Binder & Maier, supra note 133, at 11-12.
188. See Interviews #26, #39 & #44.
189. Interviews #39 & #50 (describing the opening of political room for judicial independence in Guatemala at that time, and Vásquez Martínez's demands for judicial independence). On the measures that Guatemala took to increase judicial independence and the extent to which they have succeeded, see Rachael Sieder, Renegotiating 'Law and Order': Judicial Reform and Citizen Responses in Post-War Guatemala, in 10 DEMOCRATIZATION 137, at 145-47 (2003).
190. Interview #44; Goransky, supra note 78, at 993.
191. Goransky, supra note 78, at 992-93.
192. Interview #26 (one of the intellectual engines of the criminal procedure reforms came from political liberals who wanted to build institutions and make deals with social democratic administrations).
193. U.S. national security doctrine during the Cold War established containment and elimination of communist influence as a priority for Latin America. For more on this doctrine, see, e.g., Stephen J. Randall, Ideology, National Security, and the Corporate State: The Historiography of U.S.-Latin American Relations, LATIN AM. RES. REV, Vol. 27 No. 1, at. 205 (1992).
194. See, e.g., THOMAS CAROTHERS, IN THE NAME OF DEMOCRACY: U.S. POLICY TOWARD LATIN AMERICA IN THE REAGAN YEARS 14 (1991) (describing how for much of the 20th century, El Salvador was dominated by a reactionary economic oligarchy allied with a brutal, repressive military).
195. See, e.g., Interview #23 (explaining this phenomenon in Chile); HUGH COLLINS, MARXISM AND LAW (1996).
196. For examples of intellectuals working within this political trajectory, see, e.g., CAMINOS DE LA DEMOCRACIA EN AMÉRICA LATINA (Fernando Claudin & Ludolfo Paramio eds., 1984);
197. and ENSAYOS SOBRE LA TRANSICIÓN DEMOCRÁTICA EN ARGENTINA (José Nun & Juan Carlos Portantiero eds., 1987).
198. Interview #26 (without the debate within the Latin American left during the early 1980s about the need to incorporate the democratic question to any project of social transformation, Binder and other members of the activist expert network would have not become interested in criminal procedure reforms).
199. Interview #26. Latin American liberation theology is a school of thought and theology engaged in a struggle for rights for the poor and the oppressed. One of its foundational texts was written by the Peruvian priest, GUSTAVO GUTIÉRREZ, A THEOLOGY OF LIBERATION (1971).
200. For overviews on this theological school, see, e.g., Harvie M. Conn, Theologies of Liberation: An Overview, in TENSIONS IN CONTEMPORARY THEOLOGY 637 (Stanley N. Gundry & Alan F. Johnson eds., 1979);
201. PAUL E. SIGMUND, LIBERATION THEOLOGY AT THE CROSSROADS (1990).
202. See Interview #31 (quoting Binder saying in a conference in Chile that the criminal justice system was a "shredder of poor meat"). Within Binder's intellectual milieu in Buenos Aires, critical criminology was a school of thought that emphasized the role of the criminal justice system in dealing with the lower classes. For a representative volume on critical criminology, see EL PENSAMIENTO CRIMINOLÓGICO: UN ANÁLISIS CRÍTICO (Roberto Bergalli et al. eds., 1983).
203. See Binder, Perspectivas, supra note 54, at 209.
204. See Interviews #28 & #39 (describing how people from the Guatemalan left found Binder's ideas attractive).
205. The evolution of the ideology of the Argentine intellectual and journalist Mariano Grondona is representative of this phenomenon. He was supportive of military regimes but during the 1980s discovered political liberalism and its potential role for economic development. See Mariano Grondona's books LOS PENSADORES DE LA LIBERTAD (1986);
206. VALUES AND DEVELOPMENT (1988);
207. TOWARD A THEORY OF DEVELOPMENT (1990);
208. EL POSLIBERALISMO (1993);
209. and LA CORRUPCIÓN (1993).
210. Interview #26 (the criminal procedure reforms became an attractive project for the modernizing right).
211. See Binder & Maier, supra note 133, at 153 & 12.
212. See Interviews #39, #45, & #48; U.S. AGENCY FOR INTERNATIONAL DEVELOPMENT, GUATEMALA: ACTION PLAN, FY 1994-FY 1995.
213. For César Barrientos' own account of the criminal procedure reform process in Guatemala and Latin America, see CÉSAR CRISÓSTOMO BARRIENTOS PELLECER, PODER JUDICIAL Y ESTADO DE DERECHO 197-249 (2001).
214. See Interviews #39 (a number of representatives in the Guatemalan Congress with connections to the bank sector had a clear idea that Guatemala needed the rule of law in order to progress. Arturo Soto Aguirre, president of the congressional committee on legislation and constitutional issues, was the most important among them); #48 & #50. Soto Aguirre was a representative of the Frente Republicano Guatemalteco, a right-wing party. Interview #28.
215. See Ramírez & Urbina, supra note 133, at 467.
216. See USAID History, http://www.usaid.gov/about_usaid/usaidhist.html (last visited June 7, 2007).
217. See, e.g., Carothers, supra note 141, at 1-2, 197; Howard J. Wiarda, Did the Alliance Lose its Way, or Were its Assumptions All Wrong from the Beginning and Are Those Assumptions Still with Us, in THE ALLIANCE FOR PROGRESS: A RETROSPECTIVE (L. Ronald Scheman ed., 1988).
218. The first program, funded by USAID and the Ford foundation, mainly supported changes in Latin American legal education as well as research on Latin American legal systems. A group of elite American law schools and liberal law professors led the reforms. See John Henry Merryman, Law and Development Memoirs I: The Chilean Law Program, 48 AM. J. COMP. L. 481 (2000). The second program on "Public Security" focused on training law enforcement officials. Interview #5.
219. See, e.g., Interview #24 (explaining that USAID did not want to work with the police after that experience); Hugo Frühling, From Dictatorship to Democracy: Law and Social Change in the Andean Region and the Southern Cone of South America, in MANY ROADS TO JUSTICE: THE LAW-RELATED WORK OF FORD FOUNDATION GRANTEES AROUND THE WORLD (Mary McClimont & Stephen Golub eds., 2000); GARDNER, supra note 8;
220. David M. Trubek & Marc Galanter, Scholars in Self-Estrangement: Some Reflections on the Crisis in Law and Development Studies in the United States, 4 WIS. L. REV. 1062 (1974).
221. See CAROTHERS, supra note 141, at 199.
222. Id. at 16, 20-21.
223. Id. at 21-22. Other high profile cases in El Salvador that gained American attention included the 1980 murder of Archbishop Romero and the 1981 Sheraton murders, where the director of the Salvadoran land reform program and two AFL-CIO officials serving as advisors were murdered. Id. at 210.
224. Id. at 20-27.
225. Id. at 27-30.
226. Id. at 28-29. Henry Kissinger, who had been a key player in U.S. support for Latin American military coups and governments during the Nixon administration, headed the commission.
227. Interview #5.
228. See CAROTHERS, supra note 141, at 211.
229. Id. at 211.
230. See id. at 211; Interview #2. The other two principles were focusing on concrete, practical goals that had a clear link to the overall development objectives, and providing judicial assistance only to elected civilian governments.
231. See CAROTHERS, supra note 156, at 211-12.
232. Interview #2.
233. See CAROTHERS, supra note 141, at 212-15.
234. For early assessments of these USAID administration of justice programs, see José E. Alvarez, Promoting the "Rule of Law" in Latin America: Problems and Perspectives, 25 GEO. WASH. J. INT'L L. & ECON. 281 (1991);
235. Harry Blair and Gary Hansen, Weighing in on the Scales of Justice, in USAID PROGRAMS AND OPERATIONS ASSESSMENT REPORT NO. 7 (1994).
236. As Carothers explains in his study of the Reagan policies on Latin American democratization, the expansion of the administration of justice programs - together with most of the other democratization programs - from El Salvador to other Latin American countries was not the result of high-level policy directives. Rather, the expansion resulted from the efforts of "an informal group of mid- and low-level officials who happened to have an interest in the idea." See id. at 216. See also Interview #3 (giving a similar description by someone who was directly involved in those early efforts).
237. See, e.g., Interviews #3 (in the late 1980s or early 1990s, Binder was noticed by USAID officials) & #5 (people from Michel's group knew the Argentines and someone from the administration of justice program went to Argentina for the first time in 1986 or 1987, and Maier then came to the U.S. on an international visitor program).
238. See, e.g., Binder, Perspectivas, supra note 54, at 211-15 (spending more resources on the current model would only improve the administration of a fundamentally flawed criminal justice model).
239. See, e.g., Interviews #3 & #26.
240. For an analysis of USAID's legal reform efforts in El Salvador during the 1980s, see MARGARET POPKIN, PEACE WITHOUT JUSTICE (2000).
241. Interview #3 (describing how Binder's presentation at a conference made a huge impression on an USAID official serving as an interviewee, and explaining how from there on the USAID program throughout Central America became much more focused on criminal procedure codes).
242. See Interview #2 (asking what can be wrong with adopting from a model that was created from a Latin American perspective); #3 (Binder gave USAID officials permission internally to do oral adversarial reforms because he explained why this had to be done and why it was not the U.S. imposing its own system in Central America); #31 (the USAID group had concerns about being respectful of local legal culture).
243. Interview #3 (Binder's proposals sounded more American to USAID officials because they were "oral accusatory").
244. Interviews #26 & #31.
245. Interview #26 (describing these initial tensions between Binder's group and USAID).
246. Interviews #5 (describing officials of USAID and the State Department articulating this criticism to Binder and his group) & #26.
247. Interview #24.
248. Interviews #3, #5, #26 & #31.
249. Interview #31.
250. Defining what kind of relationship network members have is important because this is what defines the network as such. See, e.g., JOHN SCOTT, SOCIAL NETWORK ANALYSIS 3 (the methods appropriate to relational data are those of network analysis, whereby the relations are treated as expressing the linkages which run between agents); SLAUGHTER, supra note 4, at 14 (a network is a pattern of regular and purposive relations).
251. This network certainly fits into Heclo's concept of an issue network, defined as "a shared-knowledge group having to do with some aspect . . . of public policy." See Hugh Heclo, Issue Networks and the Executive Establishment, in THE NEW AMERICAN POLITICAL SYSTEM 87, 103 (Anthony King ed., 1979). However, this concept is over-inclusive and a more precise category is necessary for characterizing networks such as the Latin American criminal procedure one.
252. On transnational governmental networks, see SLAUGHTER, supra note 4.
253. According to Peter Haas, one of the defining features of epistemic communities is that their members have shared causal beliefs that are derived from their analysis of practices contributing to a central set of problems in their domain. See Introduction: Epistemic Communities and International Policy Coordination, in 46 INT'L ORG. 1, 3 (1992). The network of Latin American lawyers does not fit into the concept of an epistemic community because it does not present this defining feature. Latin American lawyers' and legal scholars' expertise is about their knowledge of positive law and their ability to make normative claims, not causal ones. Maier has acknowledged this by saying "I am not an empiricist." Interview #31.
254. On advocacy networks, see KECK & SIKKINK, supra note 18, at 1 (transnational advocacy networks are distinguishable largely by the centrality of principled ideas or values in motivating their formation). On social movements, see, e.g., CHARLES TILLY, SOCIAL MOVEMENTS, 1768-2004 (2004) (social movements are a series of contentious performances, displays, and campaigns by which ordinary people make collective claims on others).
255. Interviews #8, #9, #15, #26, #41, & #47. For descriptions of the work on judicial reform by the IDB and other international agencies and banks, see, e.g., JUSTICE DELAYED 117-54 (Edmundo Jarquín & Fernando Carrillo eds., 1998);
256. RULE OF LAW IN LATIN AMERICA: THE INTERNATIONAL PROMOTION OF JUDICIAL REFORM (Pilar Domingo & Rachel Seider eds., 2001). The World Bank has not done any substantial direct work in the area of criminal justice because it has seen criminal justice as a political issue. See Interview #20.
257. Heclo, supra note 188, at 107.
258. Binder participated in the drafting of criminal procedure codes or advised code drafters in at least the following countries: Bolivia, Costa Rica, Dominican Republic, El Salvador, Guatemala, Honduras, Paraguay, and Venezuela. For interviews describing this work by Binder in specific jurisdictions, see, e.g., Interview #6 (El Salvador), #26 (Venezuela), #31 (Bolivia), #33 (Honduras), #35 (Costa Rica), #39 (Guatemala), & #50 (Dominican Republic); LUIS SALAS, Paraguay's Reform of Criminal Procedure: A Major USAID Achievement (2002), available at http://www.usaid.org.py/ democracia/archivos/Penal%20Reform%20Assesment%20by%20Salas.doc (Paraguay).
259. Interview #33 (Binder has promoted this idea of reform very effectively in many places).
260. Interview #5 (the relationship between Binder and Carl Cira was part of the replication of codes).
261. For a list of network institutions, see Institute de Estudios Comparados en Ciencias Penales y Sociales, http://www.inecip.org/index.php?option= content&task=view&id=55 (last visited June 5, 2007).
262. They include the journals PENA Y ESTADO and REVISTA SISTEMAS JUDICIALES (co-edited with CEJA). See Institute de Esutodios Comparados en Ciencias Penales y Sociales, http://www.inecip.org/index.php?option=com_content&task=section&id= 9&Itemid=33 (last visited June 7, 2007).
263. Interviews #6, #26 & #47.
264. His curriculum vitae is available at http://www.poder-judicial.go.cr/ transparencia/rendiciondecuentas/luispaulino/II%20vitae.htm (last visited June 5, 2007) [hereinafter curriculum].
265. Mora Mora participated in the drafting of the Costa Rican Criminal Procedure Code of 1996, gave advice to the judicial reform commissions of El Salvador, Panama, and Paraguay, and was a consultant for the DPK program on the administration of justice in Venezuela.
266. See curriculum, supra note 200.
267. See Interviews #26 (Mora Mora has been one of the leaders of the reform process and one of the first that became interested in the work of the Argentine group when he was Minister of Justice in Costa Rica) & #62.
268. Interview #6. For similar reasons, former Justice Daniel González Álvarez, another Justice of the Supreme Court of Costa Rica, was also at the center of the network.
269. See POPKIN, supra note 177, at 78.
270. See Interview #26.
271. Maier always had a more scholarly rather than reform-oriented inclination, and he gradually lost interest in participating as a reformer in Latin America.
272. Interviews #23 & #25.
273. See Interviews #5 (referring to a State Department official and a former USAID official as the co-godmothers of CEJA); #23; #24 (explaining how there was an opportunity to create CEJA because a person working in the White House wanted to come up with a rule-of-law initiative for the first summit of the Americas); & #62.
274. Interview #23.
275. Vargas is the Executive Director and Riego is the Research Director of CEJA. Centro de Estudios de Justicia de las Américas, http://www.cejamericas.org/ (last visited June 5, 2007).
276. See Interviews #23 (explaining that Jaime Granados was influenced by Anglo-American ideas because he studied in Puerto Rico); id. (explaining how Cristian Riego and other Chilean drafters incorporated adversarial public hearings in the pretrial phase and direct and cross examination in the trial phase, both inspired by Anglo-American models); & #39 (describing Cesar Barrientos' praise of the Anglo-American system and his call for a criminal procedure with trial by jury without a formalized pretrial phase).
277. See, e.g., Interview #61 (describing the influence of the Chilean model on the Peruvian reform). CEJA has played an important role in fostering the discussion of best practices with its evaluation of criminal procedure reforms in the region. See, e.g., Riego, supra note 1.
278. See, e.g., Interviews #23 (describing the resistance of the ministry of interior and a group of legal scholars and judges to the reform in Chile); #33 (describing this kind of opposition in Honduras); #34 & #36 (the dean of the Universidad Externado had drafted the previous code, and its faculty opposed the Colombian reform); #38, #44 & #48 (describing the opposition by Hernán Hurtado Aguilar, author of the Guatemalan Criminal Procedure Code of 1973, to the introduction of a more accusatorial code in Guatemala); and #60 (describing this phenomenon in the Ecuadorian reform).
279. For descriptions of this phenomenon in specific countries, see Interviews #45 (Bolivia); #23 (Chile); #46 (Guatemala); & #61 (Peru); ANGELINA SNODGRASS GODOY, POPULAR INJUSTICE 59-60 (2006) (Venezuela); POPKIN, supra note 177, at 191 & 219-41 (El Salvador).
280. Interviews #5 & #19. Linn Hammergren, former USAID official and current official of the World Bank, has been the most important representative of this position.
281. See Interviews #4 (describing the DOJ's dissatisfaction with the reforms for several years); #5 (the DOJ is complaining bitterly against USAID); & #12 (criticizing USAID's work in Paraguay).
282. Interview #21 (OPDAT has worked in Latin America reforming inquisitorial systems).
283. See, e.g., Interviews #1 (describing the DOJ's criticism that the Paraguayan criminal procedure code has too many obstacles to prosecution); #12 (criticizing the work of Binder for being overprotective of the defendant); #14 (criticizing the Bolivian criminal procedure code regulation on electronic surveillance); & #42 (describing OPDAT's claim that they know what they do because they have more experience, and creation of a manual for the Bolivian prosecutors based on the American model).
284. Interview #21. Since the DOJ does not get any foreign-affairs money, OPDAT has received its funding from either USAID or the State Department. Interview #12. But as tensions between the DOJ and USAID arose and continued over time, OPDAT has been receiving more funding from the State Department (mainly from the Bureau of International Narcotics and Law Enforcement Affairs (INL)) than from USAID. Interview #21. The International Criminal Investigative Training Assistant Program (ICITAP) is another subsection within the DOJ that has done extensive work in Latin America since 1986. Interviews #11 & #21. However, its work has been concentrated on police training and support rather than on code reforms.
285. Interviews #12; #14 (explaining that the DOJ uses practitioners, not contractors, for criminal procedure drafting and training); #21, #27 & #42 (explaining that the DOJ believes that they have to provide technical assistance related to criminal justice since they have that expertise).
286. Interviews #21 & #27.
287. See, e.g., Interview #20 (describing bureaucratic tension between different U.S. agencies involved in legal reform abroad).
288. See Interviews #20 (describing the main substantive tension between U.S. agencies working on legal reform abroad as a tension between people who were interested in law enforcement and those who had a larger commitment to long-term law reform); #21 (the DOJ determines its priorities among countries by looking at the crime in the U.S. that originates abroad); #24 (presenting the contrast between the DOJ and USAID as the alternative between law enforcement and exporting the U.S. system, on the one hand, to the development of the indigenous justice system and letting the foreign country select it, on the other); #30 (the DOJ's goal is not development); & #31 (while the DOJ has been looking for immediate results, USAID has been looking for medium- and long-term results).
289. I use the terms realist and liberal here in the sense of international relations theory. See Interviews #12 (the goal of OPDAT's programs is building the foreign country's capacity to handle its own crime); #21 (the goal of the DOJ's work is to help the country develop the capacity to deal with its domestic crime problems, and to help the country be a better partner to its neighbors and the United States); & #33 (the DOJ tended to mix U.S. foreign policy objectives with criminal justice).
290. See, e.g., Interviews #3 (the DOJ legal advisors tend to be very young and lack international experience); #12 (electronic surveillance, wiretapping, and undercover agents are the things that we are trying to get them to adopt because they are modern-day); #24 (it was very difficult to imbue the DOJ officials with the vision that the reason they were going overseas was not to export the U.S. model, but rather to let the country decide the type of justice they wanted to have. The DOJ officials were explicitly exporting the U.S. criminal procedure code); #29 (the DOJ's style is not suggesting but requiring); & #33 (the DOJ people had a level of arrogance and heavy-handedness that was not effective). In response to the criticism that they have been imposing U.S. models, the DOJ officials respond that this may have been the case in the past but that they are now working with international standards. See, e.g., Interviews #12 (USAID was right that the DOJ pushed the U.S. model on everybody and was very insensitive culturally, but this has changed and international standards are now the DOJ's opening bid) & #27 (the DOJ does not impose U.S. models but works with international standards).
291. Interviews #3 & #33 (explaining the DOJ's resistance to the new criminal procedure code and how this resistance was neutralized); & #4 (explaining that the DOJ proposed amendments to the Honduran code).
292. See infra note 249.
293. Interview #12.
294. See, e.g., Interview #42 (describing the process in Bolivia).
295. Italy and Portugal adopted more accusatorial criminal procedure codes in 1988 and 1987, respectively. Though the drafters of the Model Criminal Procedure Code for Iberian America did not use these codes as sources, later reformers and code drafters have taken these Italian and Portuguese codes into consideration. See, e.g., Interview #62 (describing the influence of the Italian and Portuguese codes on the Costa Rican reform).
296. There is evidence that supports this code cascade effect among Latin American countries. First, a number of my interviewees mentioned self-esteem and peer-pressure as explanations for the wave of reforms. See, e.g., Interviews #5 (explaining that a peer-group process influenced the reforms in Peru; Peruvians said that they needed to join the trend in this area); #6 (Costa Rica and the Argentine province of Cordoba adopted new criminal procedure codes in the 1990s more for a need "to have the latest" than out of any conviction of a need for change); #13 (describing peer pressure and desire not to be left behind other countries as motivating criminal procedure reform); #33 (explaining how Hondurans did not want to be the only country in Central America without reforms, especially since all their brothers and sisters were modernizing their criminal justice systems); #49 (a lot of Latin American countries had introduced accusatorial codes and Colombia could not stay behind); & #60 (the regional trend was "the new fashion" and favored the reform process in Ecuador). Second, later reforms mentioned the regional tendency as a justification for the reforms. See, e.g., COMISIÓN REDACTORA DEL NUEVO CÓDIGO DE PROCEDIMIENTO PENAL DE BOLIVIA, EXPOSICIÓN DE MOTIVOS, available at http://www.ncppenalbo-gtz.org/exposicion.htm (this project is inscribed within the Latin American trend towards the modernization of administration of criminal justice initiated by the Model Criminal Procedure Code for Iberian America). Third, most of the later reforms paid more attention to Latin American accusatorial codes than to Anglo-American and continental European ones. See, e.g., Interviews #33 (what has happened in Latin America is that people copied everything from each other, since it is very hard to write a criminal procedure code from scratch); & #35.
297. Fourth, there is no temporal lag between the Latin American criminal procedure reforms that speaks against this code cascade effect. On the concept of cascades, see Martha Finnemore & Kathryn Sikkink, International Norm Dynamics and Political Change, 52 INTERNATIONAL ORGANIZATION 887, 902-04 (1998);
298. Cass R. Sunstein, Social Norms and Social Roles, 96 COLUM. L. REV. 903 (1996) (norm cascades occur when there are rapid shifts in norms).
299. See, e.g., Interview #3 (USAID never worked independently; there were always local actors supporting the reforms).
300. See, e.g., Interviews #3 (explaining USAID's lobbying work in the Honduran Congress); & #26 (explaining how network members worked with legislatures across Latin America).
301. See Interviews #19 (Edmundo Vasquez was less solving a problem than trying to stake a claim as a reformer and grand jurist); id. (Rene Hernandez Valiente was trying to become Supreme Court Justice President in El Salvador and used the code, and Binder and Obando, for this); & #23 (for Miss Alvear, the criminal procedure reform was a great political catapult, positioning her to become chief of Lagos' campaign in Chile).
302. See, respectively, Interviews #31; #23; #36, & #49; POPKIN, supra note 177, at 219; SALAS, supra note 194, at 6; Interviews #22 & #26.
303. See, respectively, Interviews #23 & #50.
304. Interview #35 (length of pretrial detention was one of the main reasons for Costa Rican reform).
305. See, e.g., Interview #36 (Uribe's administration supported the accusatorial reform because it thought it fit well within its discourse of strengthening the prosecution of crime).
306. Interview #26 (corruption was one of the main reasons for the Venezuelan reform); Oberto, supra note 56.
307. Interview #26.
308. See, e.g., Interviews #3 (describing technical commission in Honduras); #23 (noting that technical commission was called a forum in Chile); #36 (describing the inter-institutional commission in Colombia); & #49 (describing how commissions were created in Colombia and the Dominican Republic). In some countries, there have been two commissions, one more political and one more technical, to work on the different aspects of the reform process. See, e.g., Interview #35 (explaining that there were two different commissions in Costa Rica).
309. See, e.g., Interview #33 (describing this process in Honduras).
310. See, e.g., Interviews #3 (explaining that USAID paid for a series of meetings with the relevant Congressional committee to work through the Honduran draft code article by article); #23 (describing the long process of discussing the draft code with various legislative committees in Chile); & #39 & #44 (describing multiple changes to Maier and Binder's draft code required by Guatemalan legislators).
311. Interview #26.
312. See, e.g., Interviews #5 (saying that once the committee from the Venezuelan Congress was satisfied with the code, the issue was going to be pushed through Congress with no debate); #26; #33 (explaining that the two major parties in Honduras voted for the reform); #35 (the Costa Rican Legislative Assembly approved the code almost unanimously, with great support from the different Costa Rican political forces); #45 (there was a consensus among political parties in the Colombian Congress to approve the reform because the head of the office of the prosecutor supported it); & #50 (explaining that
313. See, e.g., Interviews #3 (USAID did not participate in the Costa Rican criminal procedure reform and did not even have a mission in that country at that time); #35 (the Costa Rican reform was internally driven and economically sustained with internal resources; afterwards, the banks, especially the IDB, supported the reform through loans); #5 (the U.S. was not involved in the reforms in Argentina); & #23 (explaining in detail how the Chilean process was internally driven in terms of both its content and economic support).
314. See, e.g., Interviews #4 (describing USAID's support of the legislative commission that worked on the Honduran code); #5 (mentioning that the U.S. has been very involved in the reforms in Bolivia, Ecuador, El Salvador, and Nicaragua); #24 (saying that USAID had a lot to do with the Salvadoran criminal procedure code); #32 (explaining that Barrientos worked as a USAID consultant and was an important promoter of the reforms in Honduras and Nicaragua); #42 (describing as crucial the role of USAID in the Bolivian reform); & #50 (describing USAID's role in the reforms in Dominican Republic). The Guatemalan reform started as a case of horizontal or semi-horizontal diffusion from the periphery. Interview #2 (the Guatemalan reform was done internally without consulting with anyone from the United States). But later in the process, USAID supported the work of Barrientos who revised the drafted code before its legislative approval. See supra note 152, and accompanying text.
315. A few of these cases - such as Colombia, Honduras, and Paraguay - present elements of diffusion from the center to the extent that actors from central countries participated in drafting the codes. But even these reforms present more elements of triangular diffusion from the periphery given that the role of actors from the periphery was substantially more important in code drafting than that of actors from central countries. On Colombia, see Interviews #36 (two OPDAT officials introduced a number of changes to the regulation of pretrial investigations and expressed their approval of the discovery regulation that Jaime Granados and his group had drafted); & #34 & #36 (Jaime Granados and his group had the leading role in drafting the Colombian Criminal Procedure Code). On Honduras, see Interview #33 (although a U.S. state prosecutor and Spanish judge discussed the Honduran draft with the relevant legislative committee, the original drafting of the Honduran code was done by three Hondurans with Binder's involvement). On Paraguay, see Interviews #26 & #47 (the German jurist Schöne influenced the regulations of the Paraguayan code concerning the victim's procedural powers); SALAS, supra note 194 (explaining that while USAID had an important role in the Paraguayan reform, Paraguayans primarily led this reform effort, albeit with substantial Argentinean influence).
316. Interview #62.
317. Id.
318. Interview #26.
319. Id. (in Panama, members of the legal profession led the initial attempts at reform, and were not willing to seriously struggle to pass the reforms); id. and Interview #47 (in Uruguay, not enough people have been committed to the reforms); id. (in Mexico there was limited knowledge about the regional reform process). However, since 2000, enacting accusatorial codes has become part of Mexico's agenda. The Fox administration presented an accusatorial code draft to the Mexican Congress in 2003, and USAID and network members are now working on accusatorial reforms all over the country. Interviews #33, #51, & #52.
320. Brazil had already incorporated some accusatorial reforms in its Criminal Procedure Code of 1941. See Ada Pellegrini Grinover, Influência do Código de Processo Penal Modelo para Ibero-América na Legislaçâo Latino-Americana: Convergencias e Dissonancias com os Sistemas Italiano e Brasileiro, in 13 JORNADAS IBEROAMERICANAS DE DERECHO PROCESAL 541 (1993). This has made it more difficult to advocate the passage of a whole new accusatorial code as a solution to the problems of inefficiency and lack of due process and transparency. Brazilians also think of their Congress as being among the most cumbersome in the region when it comes to passing legislation. These reasons - combined with the limited attention Brazil pays to Latin American trends - explain why Ada Pellegrini Grinover and her group have pushed for partial reforms to the Code of 1941, instead of lobbying for a completely new code. See Interview #53. Recall that Cuba stayed under Spanish control until 1898 and thus incorporated the ideas of the Spanish Criminal Procedure Code of 1882, including the establishment of oral and public trials. This has made Cuba feel that it is ahead of the rest of Latin America and has made it more difficult to advocate passing an entirely new accusatorial code. See Interview #47. Similarly, due to the Criminal Procedure Code of 1986, Panama is one of the few countries in the region that already has oral and public criminal trials where the prosecution is in charge of the pretrial investigation. But since the prosecutor also plays an adjudicatory role during the pretrial investigation, reformers are currently pushing for the introduction of a new code that takes these adjudicatory powers away from prosecutors. See Interviews #47 & #57.
321. See, e.g., #19 (Brazil does not look to the region or to anyone else for its judicial reform plans); #26 (referring to this phenomenon in Uruguay); #47 (Cuba and Mexico do not have a dialogue or have only a limited dialogue with Latin America); #51 (Mexico looks north, not south); and #55 (the argument that there is a Latin American criminal procedure trend and that Uruguay is behind does not have political resonance in Uruguay).
322. I am thankful to Andrew Guzman for emphasizing this point to me.
323. An evaluation of the reforms' effects is beyond the scope of this article, but reports thus far have been mixed. See, e.g., Riego, supra note 1.
324. See, e.g., John J. Donohue III & Steven D. Levitt, The Impact of Legalized Abortion on Crime, 116 Q. J. ECON. 379 (2002);
325. Kenneth C. Land et al., Structural Covariates of Homicide Rates: Are There Any Invariances Across Time and Social Space?, 95 AM. J. SOC. 922 (1990);
326. Steven Levitt, Understanding Why Crime Fell in the 1990s: Four Factors that Explain the Decline and Six that Do Not, 18 J. ECON. PERSP. 163 (2004);
327. Scott J. South & Steven F. Messner, Crime and Demography: Multiple Linkages, Reciprocal Relations, 26 ANN. REV. SOC. 83 (2000).
328. In fact, the bodies of the Inter-American system on human rights have not interpreted the regional human rights treaties as requiring oral trials or the elimination of the pretrial investigation judge. So, there was room for experimenting with partial reforms to the pre-existing inquisitorial system. Uruguay is an example of such experimentation. See Interview #55.
329. For an overview of the economic liberalization in Latin America between 1880 and 1930, see THOMAS E. SKIDMORE & PETER H. SMITH, MODERN LATIN AMERICA 42-62 (5th ed. 2001).
330. Interview #26.
331. See Interview #33.
332. See, e.g., supra notes 68, 69 & 110, and accompanying text.
333. See Interviews #26 & #39.
334. See, e.g., DOMINICAN CRIM. PROC. COD. (2002), arts. 2, 27, 29, 31-32, 33, 35-36, 37-39, 40, 50, 52, 84, 85-87, 118-25, 267-72, 282-83, 286-87, 296, 300-02, 318, 323, 331, 359-62, & 396.
335. This temporal lag could be explained if Latin American elites did not know about these tendencies. But this article has indicated that Latin American elites knew about the accusatorial tendencies in Europe in the XIX Century and decided not to follow them for substantive reasons. One could also explain the temporal lag if the Latin American legal elites more strongly identified with continental Europe in the 1990s than in the XIX Century. But we have no evidence that this is the case.
336. For instance, had U.S. actors been behind the diagnosis and drafting of most the reforms, one would expect a larger use of U.S. criminal procedure models in code drafting. But, as already detailed, this has not been the case.