The about-face of Supreme Court Justice Jorge Zepeda in his criteria for granting sentence reductions

The Second Chamber of the Supreme Court has become the protagonist, at least as far as the judicial side is concerned, of the crisis sparked by the prison benefit of sentence reduction for inmates serving prison terms for sexual offenses against minors. This is the body that has the final word in criminal matters and, for that reason, it is where the protection appeals filed by inmates are decided when the Ministry of Justice or the Sentence Reduction Commission does not grant them the benefit. The Second Chamber has four full-time justices: Manuel Valderrama, Leopoldo Llanos, María Cristina Gajardo, and Jorge Zepeda. All of them, at some point in history, held a clear position on this benefit, but over time they have been changing. However, there was a time when the chamber had a relatively uniform stance. Back then, the Second Chamber of the highest court interpreted that the reduction, as part of the sentence, was governed by the basic principle of the non-retroactivity of criminal law. That meant that, according to the Supreme Court, those convicted of sexual offenses against minors —with guilty verdicts issued before February 2022— could not be excluded from this benefit. All of this, regardless of the fact that at the beginning of 2022 the law excluding this type of inmate from this prison benefit had come into force. This jurisprudence was what Justice Minister Fernando Rabat considered in changing the government's stance. However, starting on February 24, the chamber began to turn around. The first to do so was Gajardo. The justice changed her vote and joined those who interpreted that sentence reduction is only a prison benefit, and therefore is governed by the rules of Administrative Law, that is, "in actum." Under that logic, it was indeed appropriate to exclude those convicted before 2022, as mandated by the law. Gajardo was later joined by Valderrama. The last to flip was Justice Zepeda. In three rulings dated November 10, the magistrate changed his vote and argued, through a brief dissenting opinion, the reason for his new position. "That the coexistence of divergent decisions highlights the duty of this court to seek certainty in its decisions. Legal certainty and equality before the law require giving a consistent response to substantially analogous cases and justifying changes in criteria, especially in matters that concern both the effective duration of deprivation of liberty and the rights of the victim," the rulings read. In this way, Zepeda —in a dissenting opinion joined by the ad hoc justice Pía Tavolari— joined those who interpret that the benefit applies in actum, regardless of whether the conviction dates from before 2022. The only justice who continues to defend that the non-retroactivity of criminal law applies in this matter —the jurisprudence that Rabat had embraced— is Justice Llanos.