The Bush administration has pulled out of the Optional Protocol to the Vienna Convention on Consular Relations, an international agreement that has been in place for more than 30 years and that the United States initially supported to protect its citizens abroad. In recent years, the provision has been successfully invoked by foreign nations whose citizens were sentenced to death by U.S. states without receiving access to diplomats from their home countries, events which served as the basis for President Bush's decision to withdraw from the agreement.
The Optional Protocol to the Vienna Convention on Consular Relations requires signatories to let the United Nation's highest tribunal, the International Court of Justice at the Hague, make the final decision when their citizens say they have been illegally denied the right to seek consulate assistance when jailed abroad. The administration's withdrawal from the Optional Protocol comes just weeks before the U.S. Supreme Court is scheduled to consider what effect U.S. courts should give to an International Court of Justice ruling in favor of 51 Mexican foreign nationals. The World Court found that the U.S. government had failed to comply with the requirements of the Vienna Convention on Consular Relations, and it directed that U.S. courts give the death row inmates "meaningful review" of their convictions and sentences, without applying procedural default rules to prevent consideration of the defendants' claims. It is unclear what affect the administration's decision to abandon the Optional Protocol will have on this case.
Some analysts say President Bush's decision will weaken both protections for U.S. citizens abroad and the idea of reciprocal obligation that the protocol embodied. The United States was the first to invoke the Optional Protocol before the World Court to successfully sue Iran for the taking of 52 U.S. hostages in 1979.
By a margin of 46-42 percent, New Yorkers do not want to see the death penalty reinstated, according to a recent Siena Research Institute poll of state voters. The poll also found that a clear majority (56 percent) support the sentencing option of life without parole over capital punishment.
On February 28, 2005, Ohio Common Pleas Judge Richard Niehaus dismissed all charges against Derrick Jamison for the death of a Cincinnati bartender after prosecutors elected not to retry him in the case. (Associated Press, March 3, 2005). The prosecution had withheld critical eyewitness statements and other evidence from the defense resulting in the overturning of Jamison's conviction in 2002. Jamison was convicted and sentenced to death in 1985 based in part on the testimony of Charles Howell, a co-defendant who had his own sentence reduced in exchange for his testimony against Jamison.
The prosecution withheld statements that contradicted Howell’s testimony and that would have undermined the prosecution’s theory of how the victim died, and would have pointed to other possible suspects for the murder. Two federal courts ruled that the prosecution's actions denied Jamison of a fair trial. (Jamison v. Collins, 291 F.3d 380 (6th Cir. 2002)).
One of the withheld statments involved James Suggs, an eyewitness to the robbery. Suggs testified at trial that he had been unable to make a positive identification when the police showed him a photo array of suspects. In fact, police records show that Suggs identified two suspects, neither of which was Derrick Jamison. Additional withheld evidence consisted of a series of discrepancies between Jamison’s physical characteristics and the descriptions of the perpetrators given to police investigators by eyewitnesses.
A recent article in the Wayne Law Review by Prof. Phillys L. Crocker of the Cleveland-Marshall College of Law examines the Supreme Court's struggle with the issue of death row inmates waiving their appeals. Crocker uses Rees v. Peyton, a capital case that remained on the Court's docket from 1965-1995, to explore the issue. In that case, Virginia death row inmate Melvin Rees sought to withdraw his petition for a writ of certiorari so that he could be executed. In 1967, the Supreme Court stayed the proceeding after Rees was found incompetent to waive his appeal, but it did not dismiss the case until after he died of natural causes. In her article, Not to Decide is to Decide: The U.S. Supreme Court's Thirty-Year Struggle with One Case About Competency to Waive Death Penalty Appeals, Crocker concludes:
According to state and federal records obtained by The Los Angeles Times, maintaining the California death penalty system costs taxpayers more than $114 million a year beyond the cost of simply keeping the convicts locked up for life. This figure does not count the millions more spent on court costs to prosecute capital cases. The Times concluded that Californians and federal taxpayers have paid more than a quarter of a billion dollars for each of the state's 11 executions, and that it costs $90,000 more a year to house one inmate on death row, where each person has a private cell and extra guards, than in general prison population. This additional cost per prisoner adds up to $57.5 million in annual spending.
The White House has ordered state courts to consider the complaints of 51 Mexican foreign nationals on death row in the United States. This Executive Order is an abrupt international policy shift for the Bush administration and comes just weeks before the U.S. Supreme Court is scheduled to consider what effect U.S. courts should give to a ruling in favor of the 51 foreign nationals by the United Nations' highest tribunal, the International Court of Justice at the Hague. The World Court found that the U.S. government had failed to comply with the requirements of the Vienna Convention on Consular Relations, and it directed that U.S. courts give the Mexican foreign national inmates "meaningful review" of their convictions and sentences, without applying procedural default rules to prevent consideration of the defendants' claims. In his memorandum to the attorney general, President Bush stated that he had determined "that the United States will discharge its international obligations under the decision of the International Court of Justice" and he ordered the state courts to grant review. It is unclear if the Administration's decision will affect the U.S. Supreme Court's consideration of the case.
Dr. Jeffrey Fagan, a professor at Columbia University Law School and a leading national expert on deterrence, testifed that recent studies claiming to show a deterrent effect to capital punishment are fraught with technical and conceptual errors. Fagan noted that a string of recent studies purporting to show that the death penalty can prevent murders use inappropriate methods of statistical analysis, fail to consider all the relevant factors that drive murder rates, and do not consider important variables in key states.
In his new book, Desire Street: A True Story of Death and Deliverance in New Orleans (Farrar, Straus and Giroux, 2005), the Times-Picayune city editor Jed Horne examines the exoneration of Louisiana death row inmate Curtis Kyles and how his case has impacted the New Orleans criminal justice system. The book investigates the murder of Delores Dye, a 60-year-old housewife who was gunned down in full view of six eyewitnesses. Kyles was arrested and tried twice for the crime. After an initial mistrial, he was convicted of the crime and spent 14 years on death row before the U.S. Supreme Court reversed his original conviction. Since then, Kyles was retried unsuccessfully an additional three times and eventually freed with all charges dropped. Horne's book looks at this case and uses Kyles' experiences to demonstrate the broken criminal justice system in New Orleans, including a review of problems such as racism, the suspect nature of eyewitness identification, and the political nature of the relationship between death penalty cases and elected attorneys and judges.
Members of New Mexico's House of Representatives have passed a bill to abolish the death penalty, marking the first time that either chamber of the state's legislature has passed such a measure. Representative Gail Beam, who has sponsored the abolition bill every two years since she was elected in 1996, noted that the vote was "a historic opportunity for New Mexico to take a step that's both thoughtful and practical and to join other industrialized democracies in replacing the death penalty with a sentence of life without parole." Supporters of the measure anticipate a close vote in the Senate, where the bill must first be reviewed by the Senate Public Affairs Committee. Some Senators have called for passage of the legislation due to concerns about innocence and the fact that capital punishment fails to deter violent crime. "Lately I've been looking at all these cases where people have been sentenced to death, and with DNA and other things, they found out all these mistakes. That doesn't make any sense," said Senator Phil Griego, a former death penalty supporter who has announced he will vote for the Senate version of Beam's bill. The last time a death penalty bill reached the floor of either chamber was in 2001, when the Senate narrowly defeated an abolition bill by a vote of 21 to 20.
Former FBI Chief and federal judge William Sessions recently joined two other former federal judges and a prosecutor urging the U.S. Supreme Court to consider an appeal from Ohio death row inmate John Spirko. In their brief, Sessions and his colleagues assert that the prosecution argued a theory at Spirko's trial that it had to know was at least partly suspect. "When the ultimate penalty is at issue, justice demands scrupulous conduct from prosecutors. It is not enough for a prosecutor to weigh all of the evidence, determine that a defendant is guilty, and pursue such a verdict vigorously if he holds back information unfavorable to his desired outcome," reads the group's brief.
Ohio originally charged Spirko and a co-defendant with the murder of postal worker in 1982. Evidence has since surfaced indicating that the state had photos showing that the co-defendant was 500 miles away at the time of the murder. Spirko maintains that those photos should have been turned over to the defense. The co-defendant was never tried for the murder and the state eventually dropped charges against him.
William Sessions is a member of the Constitution Project's Death Penalty Initiative, which helped organize the writing and submission of the brief on behalf of Spirko.