News

SUPREME COURT Agrees to Hear Cases with Death Penalty Implications

On November 7, the U.S. Supreme Court agreed to hear cases in two areas that could have broad implications for many defendants facing the death penalty.  In Hamdan v. Rumsfeld, No. 05-184, the Court will rule on the constitutionality of the military tribunals established by President Bush following the September 11, 2001 terrorist attacks.  A U.S. District Court had halted the military trial of Salim Ahmed Hamdan, who had been captured in Afghanistan, because the trial violated domestic law and U.S. international treaty obligations.  This decision was overturned by the U.S. Court of Appeals for the District of Columbia Circuit.  Hamdan is charged with conspiracy, murder and terrorism.  Under the current military tribunals, the government may seek the death penalty for certain offenses.  Chief Justice John Roberts has recused himself from the case because he was part of the panel of judges in the prior decision. (N.Y. Times, Nov. 8, 2005).


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NEW RESOURCE: Foreign Nationals on U.S. Death Rows

The latest edition of the Consular Rights in America newsletter is now available.  The newsletter discusses legal and political developments concerning citizens of other countries who are in prison or on death row in the U.S.  Issue 29 contains excerpts from the Texas Lawyer of recent arguments before the Texas Court of Criminal Appeals in the case of Jose Medellin, a Mexican citizen on death row in Texas.  This case has already been the subject of arguments before the U.S. Supreme Court, the International Court of Justice, and of a presidential decision.  The newsletter also discusses the decision of the Oklahoma Court of Criminal Appeals regarding Osbaldo Torres, a former death row inmate also from Mexico.  The newsletter is published by Mark Warren of Human Rights Research. 


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Foreign Nationals, Part IV

   As of February 15, 2005

Information provided by Mark Warren of Human Rights Research*



  Background: Consular Rights, Foreign Nationals and the Death Penalty
Reported Foreign Nationals on Death Row in the U.S.
  • by foreign nationality
  • by state of confinement
  • Notes Current Issue of the Article 36 Update: Consular Rights in America Newsletter, compiled by Mark Warren

     
    Foreign Nationals Executed Since 1976
    Foreign Nationals with Scheduled Execution Dates
    Deaths in Custody

    Foreign Nationals Released on Grounds of Innocence
    Executive Clemency for Death-sentenced Foreign Nationals
    Recent Court Decisions

    Current Issues and News About Foreign Nationals (updated by DPIC)

    Current Issues and News About Foreign Nationals (Updated by Mark Warren)


    Consular Rights, Foreign Nationals and the Death Penalty

    Under Article 36 of the 1963 Vienna Convention on Consular Relations (VCCR), local authorities must inform all detained foreigners "without delay" of their right to have their consulate notified of their detention. At the request of the national, the authorities must then notify the consulate without delay, facilitate unfettered consular communication and grant consular access to the detainee. Consuls are empowered to arrange for their nationals' legal representation and to provide a wide range of humanitarian and other assistance, with the consent of the detainee. Local laws and regulations must give "full effect" to the rights enshrined in Article 36. The USA ratified the VCCR without reservations in 1969; so fundamental is the right to consular notification and access that the US Department of State considers it to be required under customary international law in all cases, even if the detainee's home country has not signed the VCCR. As of 1 January, 2000, at least 165 countries were parties to the VCCR.

    In March of 2004, the International Court of Justice determined in the Avena case (Mexico v. USA) that advisement of consular rights "without delay" means "a duty upon the arresting authorities to give that information to an arrested person as soon as it is realized that the person is a foreign national, or once there are grounds to think that the person is probably a foreign national." In most cases, arresting police in the United States would become aware of a suspect's probable nationality through routine identity confirmation and computerized background checks, done either prior to arrest, during the arrest or very shortly thereafter. The State Department has in the past interpreted the term "without delay" to mean as soon as practicable (i.e. without undue delay) and normally by the time the detainee is booked for detention, but that advisement upon arraignment in court would also meet this requirement. While not all of the reported foreign nationals currently on death row were deprived of their consular rights by arresting authorities, there is overwhelming evidence that prompt notification of these rights across the United States remains highly sporadic. No comparative study has yet been done, but the available data indicates that timely consular assistance significantly reduces the likelihood that death sentences will be sought or imposed on foreign nationals facing capital charges.

    Even applying the less stringent definition of prompt notification used by the State Department, only 7 cases of complete compliance with Article 36 requirements have been identified so far, out of more than 160 total reported death sentences (including those executed, reversed on appeal or released). In most of the remaining cases, detained nationals learned of their consular rights weeks, months or even years after their arrest, typically from attorneys or other prisoners and not from the local authorities. As a consequence, consular officials were often unable to provide crucial assistance to their nationals when it would be most beneficial: at the arrest and pre-trial stage of capital cases. For example, Arizona authorities did not formally inform German nationals Karl and Walter LaGrand of their Article 36 rights until 17 years after their arrest-- and just weeks before their execution.

    Although not a capital case, evidence from a recent law suit indicates the extent to which police departments in the USA may have breached their consular notification obligations. In Sorensen v. City of New York , a Danish national sought punitive and compensatory damages for the failure of the NYPD to inform her upon arrest in 1997 of her right to consular notification. Official records produced by the plaintiff revealed that over 53,000 foreign nationals were arrested in New York City during 1997, but that the NYPD Alien Notification Log registered only 4 cases in which consulates were notified of those arrests--a failure rate well in excess of 99 per cent (even presuming that a majority of the detainees might have declined consular notification).

     


    Reported Foreign Nationals Under Sentence of Death in the U.S.

    TOTAL: 119 As of February 15, 2005

    By foreign nationality:

    TOTAL NATIONALITIES: 31


      ACTIVE DEATH SENTENCES Mexico 54 Spain 1 Jamaica 6 Tonga 1 Cuba 6 Trinidad 1 Germany 2 Philippines 1 Colombia 4 Nicaragua 1 El Salvador 5 Laos 1 Thailand 1 Honduras 2 Estonia 2 Egypt 1 Cambodia 3 Bangladesh 1 Viet Nam 3 Haiti 1 Croatia 1 Jordan 1 Lebanon 1 Iran 1 Peru 1 Unknown nationality* 7 Canada 1 Guatemala 1 St. Kitts and Nevis 1 France 1 Bahamas 1
    OTHER DEATH SENTENCES Germany 1 (awaiting resentencing)
    Argentina 1 (awaiting resentencing)
    Viet Nam 1 (awaiting retrial)
    Thailand 1 (awaiting resentencing)
    United Kingdom 1 (reversed on appeal)

    *Inmates with INS or USCIS registration numbers (indicating foreign nationality), but for whom no specific nationality information is currently available.

    By State of Confinement:

    TOTALS BY JURISDICTION: California (43), Texas (27), Florida (21), Arizona (5),
    Ohio (4), Oklahoma (1), Nevada (4), Pennsylvania (2), Louisiana (3), Virginia (1),
    Oregon (1), Montana (1), Georgia (1), Mississippi (1), Alabama (1), Nebraska (1), Federal (2).

    Totals include all reported foreign nationals under sentence of death, including those awaiting new sentencing hearings and cases where the individual's immigration status is uncertain or their nationality is disputed. Confirmed cases of dual citizenship (individuals possessing both US citizenship and that of another country) are not listed. For more information, see dual nationality below.

    A number of the cases listed below may require re-sentencing in light of the U.S. Supreme Court decisions in Ring v. Arizona and Atkins v. Virginia. Case status information will be updated as it becomes available.

    List of symbols in tables below
    # - foreign nationality independently confirmed by two or more sources

    ! - awaiting re-sentencing or new trial after appellate court ruling

    M- cases of reported mental illness, mental retardation learning disability, or brain damage (incomplete data)

    INN - claim of innocence raised on appeal (incomplete data)

    INS- inmate with INS detention number, but for whom no nationality has been specified

    << - facing possible execution in the near future

    & - cases in which a violation of consular rights has been raised in court proceedings or otherwise directly reported.

    ^ - cases in which notification of consular rights was reportedly provided by authorities without delay (i.e. upon arrest, or prior to booking for detention).

    * cases in which the consular rights violation is disputed

    Note: TOTALS DO NOT YET REFLECT POSSIBLE CHANGES TO SENTENCING IN A NUMBER OF STATES, AS A RESULT OF THE SUPREME COURT DECISIONS IN RING V. ARIZONA AND ATKINS V. VIRGINIA.

    ALABAMA (1)


      Quang Ngoc Bui ! Viet Nam

    ARIZONA (5)

      Martin Raul Fong Soto & juvenile Mexico # Michael Apelt & M Germany # Rudi Apelt & M Germany # Kajornsak Prasertphong &! Thailand
    Tonatihu Aguilar juvenile Mexico #

    CALIFORNIA (43)

      Carlos Avena Guillen & Mexico # Omar Fuentes Martinez & Mexico # Hector Juan Ayala & Mexico # Vicente Benavides Figueroa & M Mexico # Constantino Carrera Montenegro & M Mexico # Jose Lupercio Casares & Mexico # Abelino Manriquez Jacquez & Mexico # Sergio Ochoa Tamayo & M Mexico # Ramon Salcido Bojorquez * Mexico # Alfredo Valdez Reyes & Mexico # Jaime Armando Hoyos & Mexico # Tomas Verano Cruz & Mexico # Manuel Machado Alvarez
    Cuba
    Miguel Angel Bacigalupo & Peru # Peter Sakarias & Estonia # Tauro Waidla & Estonia # Hooman Ashkan Panah & Iran # Luis Alberto Maciel Hernandez & Mexico # Enrique Parra Duenas & Mexico # Samuel Zamudio Jimenez & Mexico # Martin Mendoza Garcia & Mexico # Daniel Covarrubias Sanchez & Mexico # Jorge Contreras Lopez & Mexico # Juan Sanchez Ramirez & Mexico # Ignacio Tafoya Arriola & Mexico # Sonny Enraca & Philippines # Miguel Angel Martinez Sanchez & Mexico # Juan Manuel Lopez & Mexico # Eduardo David Vargas & Mexico # Arturo Juarez Suarez & Mexico # Samreth Sam Pan
    Cambodia
    John Ghobrial
    Egypt
    Marcos Esquivel Barrera & Mexico # Juan de Dios Ramirez Villa & Mexico # Ruben Gomez Perez & Mexico # Magdaleno Salazar & Mexico # Jose Francisco Guerro & Guatemala
    Run Peter Chhoun
    Cambodia
    Vaene Sivongxay
    Laos
    Victor Miranda Guerrero
    Mexico
    Dung Anh Trinh
    Viet Nam
    Alfredo Valencia
    Mexico
    Alfredo Prieto
    El Salvador

    FLORIDA (21)

      Dieter Riechmann ! & INN Germany # Noel Doorbal
    Trinidad
    Lynford Blackwood
    Jamaica
    Robert Gordon
    Jamaica
    Sean Smith
    Bahamas
    Paul Howell
    Jamaica
    Lancelot Armstrong
    Jamaica
    Guillermo Arbelaez
    Colombia
    Pedro Hernandez Alberto ^M Mexico # Rory Enrique Conde
    Colombia
    Manuel Valle INS Unknown
    Ian Lightbourn INS Unknown
    Omar Blanco
    Cuba
    Manolo Rodriguez
    Cuba
    Terance Valentine INS Unknown
    Leonardo Franqui INS Unknown
    Pablo San Martin INS Unknown
    Marbel Mendoza INS Unknown
    Jesus Delgado INS Unknown
    Pablo Ibar
    Spain
    (possible dual national)
    Juan Carlos Chavez
    Cuba

    GEORGIA (1)


      Joaquin Arevalo & El Salvador

    LOUISIANA (3)

      Thao Tan Lam
    Viet Nam
    Manuel Ortiz & M INN El Salvador # Michael LeGrand (possible dual national) France

    MISSISSIPPI (1)

      Thong Le
    Viet Nam

    MONTANA (1)

      Ronald Smith ^ Canada #

    NEBRASKA (1)


      Jorge Galindo
    Mexico #

    NEVADA (4)

      Carlos Rene Perez Gutierrez & Mexico # Avram Vineto Nika & Croatia # Sioasi Vanisi
    Tonga
    Jose Echavarria
    Cuba

    OHIO (4)

      Jose Trinidad Loza & Mexico # Abdul Awkal
    Lebanon
    Kenneth Richey & INN ! United Kingdom # Ahmad Fawzi Abdelnor Issa
    Jordan

    OKLAHOMA (1)

      Isidro Marquez Burrola M Mexico #

    OREGON (1)

      Horacio Alberto Reyes Camarena & Mexico #

    PENNSYLVANIA (2)

      Albert Reid
    Jamaica # Borgela Philistin
    Haiti

    TEXAS (27)

      Cesar Roberto Fierro Reyna & INN<< Mexico # Hector Garcia Torres & INN Mexico # Humberto Leal Garcia & M Mexico # Jose Ernesto Medellin Rojas &<< Mexico # Daniel Angel Plata Estrada & M Mexico # Roberto Moreno Ramos &<< Mexico # Oswaldo Regalado Soriano & M juvenile Mexico # Edgar Tamayo Arias & Mexico # Dennis Zelaya Corea (a.k.a. Carlos Ayestas) & Honduras # Lim Kim Ly
    Cambodia # Syed Rabani
    Bangladesh # Michael Blair
    Thailand # Victor Saldano ! & Argentina # Anibal Garcia Rosseau & Cuba # Ruben Ramirez Cardenas & Mexico # Ramiro Ibarra Rubi & Mexico # Ignacio Gomez & M Mexico # Virgilio Maldonado & Mexico # Felix Rocha Diaz & Mexico # Bernardo Tercero
    Nicaragua # Ramiro Hernandez Llanas & M Mexico # Juan Carlos Alvarez & Mexico # Angel Maturino Resendiz ^ Mexico # Gilmar Alexander Guevara
    El Salvador # Linda Carty female St. Kitts/UK # Heliberto Chi & Honduras
    Walter Alexander Sorto
    El Salvador

    VIRGINIA (1)

      Edward Nathaniel Bell & Jamaica #

    FEDERAL (2)

      German Sinisterra & Colombia # Arboleda Ortiz & Colombia #

    TOTAL: 119

    As of February 15, 2005

    NOTES

    Solely for the purposes of this list, a 'foreign national' is any individual under sentence of death in the USA who does not possess United States citizenship. More generally, foreign nationals in the USA would include: tourists and visitors, migrant workers with temporary permits, resident aliens, undocumented aliens, asylum-seekers and persons in transit. Foreign citizens comprise a significant portion of the population: more than 20 million foreigners visit the United States annually from overseas and approximately 18 million residents of the United States are non-citizens (according to the 2000 census results).

    Along with the general consular notification obligations which apply under the Vienna Convention on Consular Relations, the USA has also negotiated separate bilateral consular agreements applicable to some 50 countries. Under the terms of most of these agreements, there is a mandatory obligation to promptly notify the consulate of an arrest irrespective of the national's wishes (typically within a specified time period, such as 72 hours following arrest).

    Dual nationality

    Individuals retaining dual nationality who are arrested in one of their countries of citizenship are problematic for the purposes of consular notification under the VCCR (which makes no reference to dual citizenship). Individuals are listed provisionally if a report is received that they possess citizenship in a country other than the USA; if U.S. citizenship is later confirmed, the name is removed from this list.

    The U.S. Department of State has taken the position that individuals who retain U.S. citizenship along with another nationality are not entitled to notification of consular rights if arrested in the USA. Other nations do not necessarily share that interpretation of consular treaty obligations; at a minimum, consulates always have the right to communicate with and visit their citizens in custody, if the consulate deems it appropriate to extend that assistance to its dual nationals. Foreign governments also retain the right to intervene for dual nationals on humanitarian grounds, as part of the general protective function that they may choose to provide to their citizens abroad. While the scope of consular notification rights for this category of dual nationals may thus be open to some interpretation, all non-U.S. citizens detained or arrested in the USA are unquestionably entitled to the full range of consular rights afforded under international law.

    Sources of Information

    Since U.S. authorities frequently do not list incarcerated individuals by nationality, it is difficult to identify and verify all foreign nationals under sentence of death. There is no accessible national registry of these individuals (although the USCIS data base of deportable aliens serving prison terms would likely include all known foreign nationals on death row nationwide). Compounding the problem is the still-widespread failure of U.S. law enforcement officials to notify detained foreigners of their consular rights. Without this notification and subsequent communication at the request of the detained national, foreign consulates in the United States are likely to remain unaware of the true number of their nationals who are imprisoned, let alone sentenced to death.

    The information for this list comes from a variety of sources, including appellate attorneys, post-conviction resource centers, trial counsel, prosecutors, newspaper articles, journalists, consulates and prison officials.

    Research to date indicates that there are no foreign nationals currently on death row in Arkansas, South Carolina and New Jersey. There is as yet no complete data from a number of U.S. states with significant death row populations, including Pennsylvania, Mississippi, Tennessee, Georgia, Kentucky, Florida and Missouri. A comprehensive list would likely include some 150 names (i.e., roughly 4% of the total U.S. death row population).

    A name is included on the list if it is confirmed by at least one reliable contact. The eventual goal is to verify the nationalities of all individuals on this list from two or more independent sources. At present, approximately three-quarters of the names have been corroborated by multiple independent sources.

    I welcome any and all additional information on this subject.

    Mark Warren, Human Rights Research
    aiwarren@sympatico.ca
    tel: (613)278-2280

    * Human Rights Research provides free information on consular rights issues in death penalty cases, along with human rights consulting and research services to attorneys, consulates and non-governmental organizations.

    Amnesty International: Violation of the Rights of Foreign Nationals Under Sentence of Death


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    Supreme Court Gives President's Order First Chance to Resolve International Death Penalty Dispute

    The Supreme Court today dismissed as “improvidently granted” the case of Jose Medellin, a Mexican national on death row in Texas primarily because President Bush has interevened and ordered state courts to abide by a ruling from the International Court of Justice (ICJ). In an unsigned decision, the Justices decided not to review this case as a matter of federal habeas corpus law. They did note, however, that once this matter is reviewed in Texas state courts, the U.S. Supreme Court "would in all likelihood have an opportunity to review the Texas courts’ treatment of the President’s memorandum and [the] Case Concerning Avena and other Mexican Nationals...." (footnote 1).

    The World Court had determined that the U.S. government had failed to comply with the Vienna Convention on Consular Relations' requirement of consular access for foreigners arrested in the United States, and it directed that U.S. courts consider the claims of almost all of the Mexican nationals on U.S. death rows who had not been afforded this protection. The United States Court of Appeals for the Fifth Circuit held that it was precluded from giving effect to the ICJ judgment by prior U.S. Supreme Court precedent. After the Supreme Court agreed to hear the case but before oral arguments, President Bush issued an Executive Order directing the state courts to give effect to the ICJ ruling and consider the complaints of Medellin. Attorneys for Medellin had asked the Court to stay the case until after Medellin had his hearing in state court. Attorneys for Texas argued that Medellin's federal claim was barred on procedural grounds and that President Bush does not have the constitutional authority to order Texas courts to comply with the international court's judgment. In today’s dismissal, the Court cited the President’s Executive Order as a chief reason for not reviewing the case, and reserved the right to hear a future appeal once the case had run its course in state court.


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    Death Row Inmate's Mental Health Crumbles Even As Relief May Be Near

    During 25 years on Texas' death row, Cesar Fierro's mental health has deteriorated to the extent that his attorney hardly recognizes him. Since being sentenced to death in 1980, his mother has died, his brother has died, his wife divorced him and his daughter stopped visiting him. Gradually, he refused to even speak with his lawyers.

    "He wouldn't come out of his cell for months at a time unless he was forcibly extracted," says David Dow, a constitutional law professor at the University of Houston Law Center and director of its Texas Innocence Network. "He refused to shower and there were feces on his cell wall. It was very disturbing . . . ."

    Dow said that when Fierro was sent to death row in 1980, he was a soft-spoken, slightly overweight man in his mid-20s who was highly respectful of his lawyers and the process, which he felt would set him free.

    "When I saw him last year, he had long, stringy hair and a strong wind could have blown him over," says Dow. Even when told of some good news from the courts, Fierro raged and rambled incoherently, banging the phone against the glass partition of the visiting room.

    Fierro's case is one among about 50 similar cases in which the International Court of Justice recently ruled that the convictions and death sentences of Mexican nationals should be given further review in U.S. courts. President Bush has ordered the courts in Texas and elsewhere to comply with the World Court's ruling, but Texas authorities have said Bush lacks the proper authority. The issue of the effect of the World Court's ruling is currently before the U.S. Supreme Court.


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    Oklahoma Judge Finds Foreign National Was Denied Right to Contact Consulate

    An Oklahoma County District Judge has determined that Osbaldo Torres, a Mexican foreign national who was once on Oklahoma's death row, should have been told before his trial that he had a right to contact his home country's consulate. Judge Twyla Mason Gray also found that Torres had ineffective counsel at his trial. Her findings stem from a December hearing held at the request of the State Court of Criminal Appeals. The appeals court wanted Judge Gray to hear evidence about Torres' representation and to determine if American officials had violated protections guaranteed by the Vienna Convention on Consular Relations. The findings have been sent to a higher appeals court for review. Though it is uncertain when they will rule in the case, those judges could decide to order a new trial for Torres or affirm his conviction. After Torres had spent more than a decade on death row, Oklahoma Governor Brad Henry commuted Torres' death sentence to life in prison without parole in May 2004.


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    QUESTIONS & ANSWERS ABOUT MEDELLIN v. DRETKE

    World Court

    QUESTIONS & ANSWERS ABOUT MEDELLIN v. DRETKE
    [To be argued before the Supreme Court on March 28, 2005]

    Who is Medellin?

    Jose Ernesto Medellin is an inmate on Texasí death row. At the time of his arrest for murder, he was a Mexican citizen and hence protected under the Vienna Convention on Consular Relations (VCCR).

    Medellin told police that he was a Mexican citizen at the time of his arrest, but he was not informed of his rights to contact the Mexican consulate. A court-appointed attorney (with a suspended law license) represented him at trial. Mexican consular authorities were first notified of Medellin's detention when he wrote to them from death row after the conclusion of his direct appeal. The Mexican consular authorities immediately began aiding in Medellin's defense.

    Who is Dretke?

    Doug Dretke is the public official charged with the duty of detaining Medellin on Texasí death row. Medellin is petitioning the Supreme Court to ensure that the appropriate courts review his sentence and conviction. For this reason, Dretke is named as the Respondent in the Medellin litigation, according to habeas corpus procedure.

    What is the Vienna Convention on Consular Relations?

    The Vienna Convention on Consular Relations (VCCR) is a U.N. treaty ratified by 166 countries establishing the duties and privileges of consulates worldwide. Article 36 of the 1963 VCCR enables consular officials to protect their citizens who are detained in foreign countries. The United States and Mexico are parties to this treaty. The VCCR applies to Americans abroad and to foreigners arrested in the United States. Under the treaty, authorities who detain a foreign national must notify that person of his right to request assistance from the consulate of his own country, and, if requested by the person, tell the consulate that one of their nationals has been detained.

    What is the International Court of Justice?

    The International Court of Justice at the Hague (ICJ) is the United Nations' highest tribunal ñ also known as the World Court.

    What is the Optional Protocol to the Vienna Convention on Consular Relations?

    The Optional Protocol Concerning the Compulsory Settlement of Disputes (ìOptional Protocolî) gives the ICJ responsibility for settling disputes over the interpretation or application of the Convention.

    The U.S. proposed this binding dispute provision. By ratifying the Optional Protocol, the U.S. agreed to settle disputes regarding the interpretation and application of the Vienna Convention in the ICJ.

    The U.S. was the first country to invoke the protocol, successfully suing Iran in the ICJ for the taking of 52 U.S. hostages in Tehran in 1979.

    -More Q & A on Medellin


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    QUESTIONS AND ANSWERS ABOUT MEDELLIN V. DRETKE

    Continued from DPIC's home page:

    Why is Medellin v. Dretke before the Supreme Court?

    Most Mexicans on death row in the U.S. were denied their rights under the VCCR, and the government of Mexico brought a suit before the ICJ as provided in the Optional Protocol.  That lawsuit, brought on behalf of Medellin and 53 other Mexican nationals who had been sentenced to death in the United States, is referred to as the Avena case.

    In March of 2004, the ICJ determined in Avena that the U.S. government had failed to comply with the requirements of the VCCR, and it directed that U.S. courts give the death row inmates "effective judicial review and reconsideration" of their convictions and sentences in light of this failure, without applying procedural default rules (such as, that this claim should have been raised at the original trial) to prevent consideration of the defendants' claims.

    Texas courts had previously denied Medellin’s Vienna Convention claim, and two federal courts refused to overturn the rulings of the Texas courts.  The United States Court of Appeals for the Fifth Circuit acknowledged the ICJ’s judgment in Avena, but held that it was precluded from giving effect to the judgment by prior U.S. Supreme Court precedent.  The court ruled that, because Medellin had not raised the Vienna Convention claim at the trial stage (during the time that he was represented by unlicensed counsel), his appeal was procedurally defaulted. The court further stated that the VCCR does not serve to confer rights upon individuals.

    The U.S. Supreme Court agreed to review the decision of the Court of Appeals, and oral arguments are scheduled for March 28, 2005.

    What response has come from the White House?

    The Solicitor General filed an Amicus Curiae (“friend of the court”) Brief – a brief filed by someone who is not a party to the litigation, but who believes the court’s decision may affect its interest. In it, the Solicitor General informed the Court that by Executive Order of February 28, 2005, President Bush directed state courts to give effect to the ICJ’s ruling in Avena and to review the cases of Medellin and the 50 other Mexican foreign nationals on death row in the United States.

    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.

    However, on March 7, 2005, in a letter from Secretary of State Condoleezza Rice to U.N. Secretary General Kofi Annan, the administration notified the U.N. that the United States is withdrawing from the Optional Protocol to the VCCR.  The Executive Order to review the cases still stands, but the withdrawal from the Optional Protocol affects future disputes, and reverses the U.S.’s former decision to grant the ICJ decision-making authority over these disputes.
     
    How will the Executive Order affect the U.S. Supreme Court’s consideration of the Medellin case?

    Oral arguments are scheduled for March 28, 2005.  The question the Supreme Court is poised to answer is whether United States courts must give effect to the decision of the ICJ.  Because President Bush has ordered the U.S. courts to do just that, it is uncertain how the Supreme Court will proceed.  Assuming the Texas and other state courts comply with the Executive Order, the case may be rendered “moot,” meaning that the issue before the Court has already been resolved.  Federal courts do not issue rulings that have merely theoretical outcomes.

    Attorneys for Jose Medellin have asked the Supreme Court to put the case on hold until after Medellin has had his hearing in state court.  Attorneys for Texas have argued that President Bush does not have the constitutional authority to order Texas courts to comply with the Avena judgment.

    How many people will be affected by the outcome of this case?

    The cases of 52 of Mexican nationals under sentence of death in the U.S. were addressed by the ICJ, which found Vienna Convention violations in 51 of those cases.

    Of those 51 cases, seven defendants are no longer under a sentence of death (4 commutations, 1 reduced to life sentence, 2 juvenile cases set aside by Roper v. Simmons).

    Apart from the 44 Avena cases still with active death sentences, there are 7 other Mexican nationals on death row.

    There are a total of 119 foreign nationals reported on death row in the U.S. (source: Mark Warren, Human Rights Research).

    Return to Foreign Nationals
    Return to Supreme Court


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    U.S. Abandons Optional Protocol to the Vienna Convention on Consular Relations

    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.


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    President Bush Orders Courts to Give Foreign Nationals on Death Row Further Review

    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. 


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