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

• Dual nationality
• Sources of Information

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