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Death Penalty & Foreign Nationals

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Foreign Nationals

Another area in which the legality of the death penalty has been called into question is the execution of foreign nationals in the U.S. The U.S., along with almost all the other countries of the world, has long been a party to the Vienna Convention on Consular Relations.Article 36 of this Convention requires officials in the U.S. who place foreign nationals under arrest to inform them of their rights to consult with the embassy of their home country. It is clear that this provision, which is binding in all states under U.S. law, has been consistently ignored.

There are at least 72 foreign nationals on death row in the U.S. Virtually none of these defendants were informed of their consular rights under the Vienna Convention. Beginning with Carlos Santana from the Dominican Republic, who was executed in Texas in 1993, there have been 8 executions of foreign nationals in the U.S. since the death penalty was reinstated.

Given that there are many defendants facing execution who were not informed of their consular rights in violation of both international and U.S. law, what should be the remedy ? This issue reached the highest courts of both the U.S. and the world with the pending execution of Angel Breard in Virginia in April of this year. Breard was a citizen of Paraguay and had come to the U.S. in 1986. He was not informed of his consular rights when arrested for murder in 1992.

At trial, he rejected the advice of his appointed American lawyers, refused a plea agreement offered by the state and insisted on testifying in his own defense. On the stand, Breard claimed he was compelled by a satanic curse placed on him by his father-in-law. He was found guilty and sentenced to death in 1993.

Paraguay attempted to intervene on his behalf in the appeals process, claiming that if Breard had been given the opportunity to discuss the U.S. legal system with counselors from Paraguay he might have accepted the plea bargain and avoided a death sentence, or at least he might have seen the pitfalls in taking the stand. However, Paraguay's efforts were barred by the Eleventh Amendment to the U.S. Constitution which forbids suits by foreign countries against a state. While this matter was being further appealed, Paraguay filed suit with the International Court of Justice at The Hague. In that forum, Paraguay asked for a ruling to prevent the imminent execution of Breard because of the U.S. violation of the Vienna Convention. The International Court, recognizing that there was not sufficient time before the execution to adequately hear both sides and render a decision, unanimously ruled that the execution should be delayed at least until the Court could fully review the matter.

U.S. Secretary of State Madeleine Albright asked the state of Virginia to comply with this injunction by the International Court. The U.S. Supreme Court refused to stay the execution, primarily because it found that Breard had not raised his claim regarding the Vienna Convention in a timely manner. The Court held that this procedural bar not only precluded Breard's individual claim, but also negated any influence of the International Court of Justice. The decision by the highest court in the world was summarily rejected because of U.S. procedural rules designed to speed up executions.

Interestingly, while the U.S. Secretary of State was pleading with Governor Gilmore to halt the execution, the U.S. Justice Department was arguing that Virginia would suffer harm if it was not allowed to carry out the "execution in a timely fashion." Breard was executed on April 14, 1998, shortly after the Supreme Court rendered its decision. Outside of those who have volunteered for execution and waived their appeals, Breard's case was one of the fastest to go through the appeals process since the death penalty was reinstated. Even though Breard was executed, the case that Paraguay brought to the World Court continues. An opinion by the World Court that such executions would be illegal would also imply that the U.S. is in violation of the Torture Convention.

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