An El Chapo Extradition to the United States: Political Will versus Legal Authority

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El Chapo is currently in custody in Mexico. Courtesy Matt Niemi / Flickr.

El Chapo is currently in custody in Mexico. Courtesy Matt Niemi / Flickr.

Shortly before 9:00pm on Saturday, July 11, 2015, Joaquin Guzman Loera, better known as “El Chapo” and drug kingpin to the Mexican Sinaloa cartel, escaped the Atiplano Federal maximum-security prison in Mexico. It would be his third prison escape. El Chapo’s escape tactic looked as if it was a scene out of a drug movie. El Chapo was able to enter a shower area in his cell and disappear into the night. He managed to do this by entering through a 2-by-2-foot hole that had stairs that led to a mile-long tunnel to freedom. The tunnel was equipped with lighting, plastic piping, ventilation and a motor cart and anticipated to have taken a year and a million dollars to construct. A massive manhunt ensued, but it took six months before authorities recaptured El Chapo in a deadly raid in his home state of Sinaloa on January 9th. The public soon learned that El Chapo had met with actor Sean Penn and actress Kate del Castillo in his hideout on October 2015 for an interview for a potential biopic and an article for Rolling Stones Magazine. Attorney General Arely Gomez said that the meetings between El Chapo’s associates and the actors helped authorities eventually find the fugitive.

Now that El Chapo is back at the very prison from which he escaped, many have pushed for his extradition to the United States, questioning the security breaches that seem almost inherent in Mexican prisons filled with El Chapo loyalists. The United States is a potential extradition destination because El Chapo is a major smuggler of heroine, cocaine, marijuana and other narcotics between the U.S. and Mexico. In 2013, law enforcement officials in Chicago labeled El Chapo as “Public Enemy No. 1” because their city is a key recipient in the drug trade. Jack Riley, Director of the Drug Enforcement Agency’s Chicago Office explained, “While Chicago is 1,500 miles from Mexico, the Sinaloa drug cartel is so deeply embedded in the city that local and federal law enforcement are forced to operate as if they are on the border.”

Jimmy Gurule, Professor of Global Criminal law at the University of Notre Dame, explains that while extradition is possible, it is highly unlikely. The first reason is the issue of sovereignty. Since El Chapo was tried, convicted, sentenced and served in Mexico before his escape, it would follow that he should carry out the rest of his sentence in Mexico. Second, Mexico would not want to look submissive to U.S. extradition demands. A third reason touches even more on the political will, as Mexico would be sending a strong symbolic message by essentially conceding it has a broken criminal justice system. This comes after a period during which Mexico raged its own south of the border version of a “War on Drugs” in 2006 with former Mexican President Calderon. While Calderon was in office for six years, he invested billions of dollars on police training and equipment and tried to take an on the ground approach with the cartel along with a reform in the judicial system to combat the drug terror. However, during that same period, homicides rose from 9,000 in 2007 to 27,000 in 2011 and Mexican Drug Trafficking Organizations escalated their operations from solely drug trafficking to kidnapping, robbery, and extortion through heinous acts of cruelty. In addition to the “War on Drugs” dilemma, the idea that Mexico cannot control murderous drug pins is potentially one that could lead to an emergence of El Chapo copycats or replacements. Mexico also runs the risk of losing legitimacy in the eyes of even their own law abiding citizens because it could appear that the U.S. is big brother cleaning up the mess that their government cannot handle.

Beyond the political will, the legality of an extradition is quite clear because of the Extradition Protocol Between United States of America and Mexico that was signed in Washington on November 13, 1997. The Protocol begins by recognizing the close relationship that exists between the United States of America and the United Mexican States, reflected in numerous instruments and mechanisms of legal cooperation. Article 15, paragraph 2 is an example of this legal cooperation because it allows the Requested Party, after granting an extradition request, to temporarily surrender a person who has been convicted and sentenced in the Requested Party, in order that the person sought may be prosecuted in the Requesting Party, before or during service of sentence in the Requested Party. In the past, imprisonment in the U.S. has meant cartel leaders losing touch with their families and their ability to run their criminal networks, thereby effectively diminishing and ultimately depleting their power. In this case, all it would take is a United States request and a Mexican approval for the extradition of El Chapo to work in theory. Many believe this is a good idea since Mexico is still in an embryonic stage of its criminal justice reform initiative, and therefore does not have adequate tools in place to investigate, try, convict and detain a high profile-leader like El Chapo. Another failed attempt by Mexico would deter an already fragile and skeptical citizenry from trusting the new reforms.

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