An American Dilemma

International Law, Capital Punishment, and Federalism

M. Atwell

• Publisher: Palgrave Macmillan
• Year: 2015
• Print ISBN: 9781137270368
• eBook ISBN: 9781137270375
• Topic: Law
• Subtopic: Civil Rights in Law
• Index: Law

An American Dilemma examines the issue of capital punishment in the United States as it conflicts with the nation's obligations under the 1963 Vienna Convention on Consular Relations. In a number of high profile cases, foreign nationals have been executed after being denied their rights under the Vienna Convention. The International Court of Justice has ruled against the United States, but individual states have chosen to defy international law. The Supreme Court has not resolved the question of legal remedies for such breaches.

1

Introduction

On July 7, 2011, Humberto Leal Garcia was executed in Texas. Given that Texas leads the United States in the number of executions, there is little that is remarkable about Leal’s death—except that as he was a Mexican national, his execution drew attention and comment from the international community, from diplomats and senators, and from the United Nations High Commissioner for Human Rights. Leal was tried and sentenced to death without being informed of his right to confer with the consulate of his country, a right the United States promised to foreign nationals when it signed the Vienna Convention on Consular Relations over 40 years ago. American citizens traveling abroad frequently rely on the provisions of the Vienna Convention to provide access to advice and assistance if they run afoul of local authorities. Yet, resisting both international and domestic pressure to forego the execution of foreign nationals who were not informed of their rights is only a recent example of how American policies regarding capital punishment put it at odds with much of the world.

The United States stands virtually alone among developed democratic countries in continuing to permit the use of capital punishment. The nations of Europe, the former British Commonwealth countries, the nations created from the former Soviet Union, most of Central and South America, and many African nations have abolished the death penalty—either completely or for offenses less serious than treason or war crimes (ordinary crimes). Meanwhile, the United States finds itself in the company of retentionist countries, including Afghanistan, China, the Democratic Republic of the Congo, Iran, North Korea, Pakistan, Saudi Arabia, and Zimbabwe, whose traditions and records on human rights are less than admirable. As this book will argue, asserting a leadership role in the international endeavor to advance human rights at the same time persisting in the use of capital punishment places the United States in a most contradictory position. As much of the rest of the world trends toward abolition, the United States must engage in fancy footwork to justify its ongoing use of the death penalty, especially in the face of international treaties and rulings from the International Court of Justice (ICJ). America finds itself an outlier, deviant in an atmosphere where capital punishment is viewed as a human rights issue, not simply one among many acceptable options in dealing with crime.

However, even domestically within the United States, both the popularity and the use of capital punishment have declined from their high points in the 1990s. Thirty-five people were executed in 2014, compared to 98 executions in 1999.¹ In 2013, nine states were responsible for 39 executions. In 2014, all executions occurred in only seven states. It is clear that capital punishment is not a national practice in the United States, but rather a much more local phenomenon. A report from the Death Penalty Information Center released in 2013 found that only 2 percent of the counties in the nation were responsible for all the death sentences that year. Conversely, 85 percent of the counties in the United States have not had a single case that resulted in an execution since 1976.²

The number of death sentences also continued a downward trend, from 315 in 1996 to 79 in 2013. Reduced public support for capital punishment became apparent through several developments. In the Gallup Poll, which asks only a global question about support for the death penalty, 61 percent of those surveyed responded positively. This percentage had declined from 67 in 2000 to 80 in 1994. More significantly, a CNN poll showed that when offered alternatives to capital punishment, 50 percent chose a life sentence.³ In more concrete developments, in 2013, Maryland became the eighteenth state to abolish the death penalty, and the Governor of Oregon declared an end to executions during his term. Since 2007, six states—New Jersey, New York, New Mexico, Illinois, Connecticut, and Maryland—have ended their use of the death penalty.

Observers advance a number of explanations for this lessened support. Some cite the publicity surrounding exonerations of innocent people condemned to death, others cite the availability of life without parole as an alternative, while some point out the cost of using capital punishment during a time when state budgets are under strain. Perhaps the most vivid demonstration of problems with capital punishment has come with a number of botched executions during the last two years. As European manufacturers have stopped supplying drugs for use in lethal injections, states have improvised with untested and unregulated mixtures. In Ohio and in Oklahoma, inmates have suffered lingering and obviously painful deaths.

The uneven use of the most drastic sanction in certain sections of the country (mostly in the South) and even more disproportionately in a few states (only Texas, Florida, and Oklahoma saw more than five executions in 2013) suggests that the administration of the death penalty remains subject to local considerations and risks the arbitrariness that led the Supreme Court to find it unconstitutional in Furman v. Georgia in 1972.⁴ Scholars often cite systemic problems with the application of capital punishment: racial and ethnic disparities that involve the race of the victim and of the offender; the prevalence of mental illness among those sentenced to death; the lack of adequate legal representation at various stages of the process, a problem often correlated with the poverty of the defendant. Additionally and forming the major focus of this book, is the matter of the execution of foreign nationals. American use of the death penalty not only stands in contrast to human rights treaties and human rights standards subscribed to by much of the international community, in a number of cases, the execution of foreign nationals has occurred in violation of the 1963 Vienna Convention on Consular Relations. That agreement binds signatories to notify the appropriate consulate as soon as one of their citizens is charged with a crime. Yet in the United States, not only have numerous foreign nationals been denied access or remained uninformed of their right to contact their consulate, 31 such individuals have been executed since the treaty was ratified in 1969. A recent count showed 138 foreign nationals currently on state and federal death rows.⁵

The rights of foreign nationals accused of serious crimes in the United States may well be compromised by the failure of local criminal justice agencies to carry out obligations under the Vienna Convention. The reluctance of individual states and localities to comply with treaty commitments has been exacerbated by conflicting judgments from the ICJ and the US Supreme Court, as well as by contradictory positions within the executive branch. Questions regarding legal remedies for those foreign nationals not informed of their rights have not been resolved. In addition, as with all death penalty issues, the question of executing foreign nationals becomes enmeshed in partisan politics at the state and national levels. In the following chapters, an examination of American conformity with and resistance to its international obligations under the Vienna Convention will constitute a case study that highlights a number of key questions. How does the persistent use of the death penalty isolate the United States in its relationships with the world community? How does it serve as an example of a particular kind of American “exceptionalism,” one that calls the US claim to being a model of human rights into question? The discussion of cases where American criminal procedures and policies in conflict with the Vienna Convention were brought before the ICJ brings into sharp focus the difficulty of enforcing international obligations within a federal structure. In the cases examined in An American Dilemma, it becomes clear that commitments made by the executive branch of the government and ratified by the Congress may be ignored by the states and muddled by decisions of the Supreme Court.

Chapter 2 centers on a discussion of American exceptionalism and sets the stage for the political and cultural environment in which the United States approaches issues of human rights. Various students of politics have defined exceptionalism as, on the one hand, a positive commitment to democratic values and, on the other hand, a sense that the United States by virtue of its greater strength may enjoy an exemption from rules applied to the rest of the world. This sense of being exceptional often clouds American adherence to international agreements and organizations, including, in this instance, the provisions of the Vienna Convention applying to criminal procedure.

Chapter 3 examines the legal framework that provides the context for the application of capital punishment in the United States. After finding the death penalty as applied unconstitutional in 1972, the Supreme Court reinstated the policy four years later. The new laws passed in the 1970s were intended to make the use of capital punishment less arbitrary and more consistent. During the last four decades, the court has “tinkered with the machinery of death”⁶ and created a complex structure of laws. Whether, after these decisions, the death penalty remains cruel and unusual punishment is a matter of debate. The chapter also provides an introduction to the issue of state procedural rules and the constitutional application of capital punishment.

The critical issue in this book is how the interpretation of the rights of foreign nationals sentenced to death in the United States intersects with their rights under the Vienna Convention. The Vienna Convention, sometimes called “the international golden rule,” attempts to ensure reciprocity among nations whose citizens are detained abroad. Article 36, the part of the treaty most relevant to this study, describes the duties of law enforcement in the host country when a foreign national is arrested or significantly detained. It requires law enforcement officers to inform those arrested or detained “without delay” of their right to have their consulate notified of their detention.

In 1969, the Nixon administration supported the ratification of the Vienna Convention. Secretary of state William Rogers claimed it would add to the development of international law and contribute to the orderly and effective conduct of consular relations among nations. Many would argue that the provisions of the Vienna Convention are binding on the federal, state, and local officials in the United States based on Article VI of the Constitution (the supremacy clause), which states, “All Treaties made, or which shall be made, under the Authority of the United States, shall be the Supreme Law of the Land; and the Judges of every State shall be bound thereby, any Thing in the Constitution or laws of any State to the Contrary notwithstanding.”⁷ The US Justice Department adopted regulations requiring that federal law enforcement officials and immigration officials were obliged to tell foreign nationals of their right to communicate with their consul. However, no federal law or regulation required state and local law enforcement officials to meet the same standards. Whether or not such specific legislation was necessary, the Supreme Court has said that the Vienna Convention is not “self-executing.”

Three important cases involving foreign nationals sentenced to death in violation of their rights under the Vienna Convention are the subject of chapters 4–6. Angel Breard, a Paraguayan citizen, was executed for attempted rape and murder in Virginia in 1998. Paraguay attempted to sue on Breard’s behalf in Virginia and in the ICJ. Breard also raised claims that were denied by the US Supreme Court. The next year, Joseph Stanley Faulder, a citizen of Canada, was executed in Texas for a murder in the course of a home robbery. The Canadian government, the US State Department, and numerous international bodies appealed to Governor George W. Bush who denied a stay of Faulder’s execution. Two brothers, Karl and Walter LaGrand, German citizens, were sentenced to death in Arizona for murder in the course of a bank robbery. Although Germany appealed to the ICJ and the International Court issued a Provisional Measures Order (PMO) asking for a delay, the LaGrands were put to death. The ICJ ruled that the United States was in violation of the Vienna Convention and that the United States must provide defendants with an opportunity to challenge convictions if they were not provided consular access. The ICJ also held that procedural default rules in the states prevented the rights conferred by Article 36 of the Vienna Convention from taking full effect. Thus, the International Court’s opinion set the stage for further confrontations with the working of the American criminal justice system.

Chapter 7 deals with the Avena case where Mexico claimed in the ICJ that the United States was in violation of the Vienna Convention on Consular Relations based on the detention, trials, convictions, and sentencing of 51 Mexican nationals who had been sentenced to death and were currently awaiting execution. Some had never been formed of their right to consular access; others were informed belatedly. The United States argued that although some of the inmates had been prosecuted without consular access, the United States should be able to address the problem through “means of its own choosing,” such as executive clemency. The ICJ’s 14–1 ruling held that the United States must provide a judicial remedy—that American courts must review the convictions and sentences of foreign nationals who had not been provided with consular access. One such case arrived at the Supreme Court in 2008 when Jose Ernesto Medellin appealed his death sentence based on the local Texas authorities’ failure to notify him of his right to contact the Mexican consulate. Chapter 7 also examines the conflict embodied in determining how the ICJ’s Avena decision would be carried out within the federal structure of the United States through an analysis of the major case that followed it—the case of Jose Ernesto Medellin who was ultimately executed in Texas. Medellin’s appeal was rejected by the Supreme Court. Even though they recognized a failure to abide by the terms of the Vienna Convention, by a 6–3 margin, the court held that the treaty was not “self-executing,” and that Avena had no domestic legal effect. It could not preempt the procedural default rule of Texas. In other words, the states were free to follow or to ignore the treaty’s provisions and had no obligation to abide by the rulings of the ICJ. As Governor Rick Perry stated, the International Court had “no standing in Texas.”

Chapter 8 uses Texas to provide a case study of the issues involved in upholding international rules against a backdrop of a federal system and within a political climate characterized by an extreme states’ rights position, a harsh criminal justice system, and governors with national electoral ambitions. It offers a paradigm of how constitutional questions or treaty obligations may become embedded in local and state politics. Three of the cases examined in this book—Faulder, Medellin, and Leal—came out of Texas, the state with by far the most executions since the reinstatement of the death penalty. There one can observe how politicians find little or no advantage in adhering to international obligations and consequently looking “soft on crime” to their constituents. Unlike the structure in other democracies, the national government cannot use its power to compel a state to comply with a treaty or an ICJ ruling. This chapter looks both at the attitudes that support such resistance to international concerns and at the possibility that changing demographics in the United States, and particularly the growing Hispanic population in Texas, may influence the climate in which the execution of foreign nationals is carried out and may lead to greater respect for opinion outside the United States.

The final chapter examines the most recent high-profile execution of a foreign national, the death of Humberto Leal Garcia in 2011. Again, the urging of international diplomats, military leaders, the United Nations, and some on both sides of the political aisle that failure to abide by the Vienna Convention jeopardized the protection of US citizens abroad did not deter Texas from carrying out Leal’s execution. Domestic politics clearly overrode any concern for world opinion.

The conclusion offers some possibilities for reducing the isolation of the United States with regard to capital punishment. The need for international cooperation regarding economic and security issues may serve as an impetus to resolve the controversy regarding the execution of foreign nationals and perhaps afford an opportunity to reframe the debate over the death penalty. There are several ways in which the United States could address the application of the Vienna Convention. The State Department could step up its existing efforts to educate state and local law enforcement officers concerning their obligations under the convention. Courts could make procedures for consular notification mandatory, as part of a Miranda-type warning. Congress could pass legislation spelling out requirements to conform to the Vienna Convention or they could amend the Antiterrorism and Effective Death Penalty Act (AEDPA) to allow federal habeas appeals to include a review of claims under the Vienna Convention. The prospect of some of these reforms seems especially unlikely in the current fractured and stalemated political climate. However, they offer an alternative to the current division among the branches of government and between the federal government and the states. One might also note that the future application of the Vienna Convention, at least in the most serious cases, is linked to the larger debate over the future of the death penalty in the United States—a future that, although unpredictable, may involve a continuation of the ...

Table of contents

• Cover
• Title
• 1   Introduction
• 2   American Exceptionalism
• 3   The Legal Framework: Capital Punishment Law and the Rights of Foreign Nationals
• 4   The Execution of a Foreign National: The Case of Angel Breard
• 5   The Execution of a Foreign National: The Case of Joseph Stanley Faulder
• 6   The Execution of Two Foreign Nationals: The Case of Karl and Walter LaGrand
• 7   Avena: Mexico v. United States and the Case of Jose Medellin
• 8   Sovereignty and Federalism: Texas as a Case Study
• 9   The Execution of a Foreign National: Humberto Leal Garcia and After
• Notes
• Bibliography
• Index