I understand how the US Supreme Court can control executions in a state due to violations of the US Constitution, supreme law of the land and all that stuff. I understand the US may be part of a compact or treaty giving certain jurisdiction to the WC. But does the Great State of Texas have to recognize judgments or orders of the WC in carrying out its penal laws? Can the federal government of these united states interfere with a state's chosen form of punishment if the trial procedure violated only an international treaty? Will the WC have to interpret the Tenth Amendment to decide Mexico's case? Will the US Supreme Court ultimately have to tell us whether an injunction from the WC is enforceable? Or did Arizona already decide all these things for us?
Martin, treaties signed by the President and approved by the Senate are law of the land, and binding on the States via the supremacy clause. That aside, the United States is not party to a treaty that allows a foreign body to somehow prevent an execution.
Consular notification is an agreement among the signatory governments to treat the citizens of those governments according to the terms of the agreement if they are arrested. Only that. And the treatment required depends upon the version signed by the government of the citizen in question. For example, if a Russian (fomer Soviet) is arrested, the police must inform the Russian government. On the other hand, a citizen of a country signing the other version need only be told of his right to notify his consul of the arrest. As long as the Supreme Court and state courts continue to recognize consular notification as a right of the signatory countries rather than an individual right (which is what the treaty states), there is no legal error that should lead to suppression of evidence or a new trial.
We've won these claims so far, even the ones referencing the Arizona case, LaGrande. We haven't signed onto the World Court, right? Therefore it can't be supreme law of the land applicable to us.
The sticky point, as it has always been, is that if we don't treat foreign citizens according to these treaties, why should we expect foreign countries to treat our citizens according to these treaties? Thus, we should encourage our police departments to comply with Consular Notification because it is important law. And we should be careful that our prosecutorial decisions don't denigrate that law.
Ah, but is a treaty approved by the Senate which purports to yield to an international body a power reserved to the States under the Tenth Amendment an unconstitutional act by the Senate, and therefore of no force and effect? Are your local police officials familiar with all the treaties or agreements which might affect how a foreign national should be treated upon arrest?
John Davis addressed the 10th Amendment issue in a paper he wrote a couple years back during another Consular Notification flap. I think it was in the TDCAA Magazine.
The State Department Website has some useful documents for law enforcement agencies regarding consular notification, including updates lists of consular offices, which countries require which type of notification, and written notifications in dozens of different languages. http://www.state.gov/www/global/legal_affairs/ca_notification/ca_prelim.html
I thought that we adopted a consular notification warning for the magistrate's warnings last session, but I couldn't find it in the Code.
Your concerns about the federal government violating State's rights via a treaty are shared by many senators and administrations. I'm unaware, though, of the Supreme Court striking down a treaty provision on the basis that the provision dealt with an area reserved to the States. It seems a possibility. It seems far more likely that the Supreme's would strike a treaty on that ground than allow foreign countries to impose their own values on us via one of the many treaties we've signed.
Just a quick source for reference:
The Treaty Adopted:
21 U.S.T. 77
Vienna Convention on Consular Relations and Optional Protocol on disputed
Date In Force - December 24, 1969
Federal Regulation in Force:
28 C.F.R. 50.5
Notification of Consular Officers upon the arrest of foreign nationals
The Texas Attorney General Promulgates:
Magistrates Guide to the Vienna Convention on Consular Notifications
At Best, it is confusing, but, in an abundance of caution, our J.P.'s have modified their magistrate's warning forms to include a specific statement informing foreign nationals of the right to request Consular notification, and to require a specific response requesting or refusing notice, which the judge has the defendant sign.
The model magistration forms adopted by the Task Force on Indigent Defense also contain properly-worded notifications for foreign nationals. If your local jurisdiction does not currently provide this notification, you should have your judges look into it.
You know what they say about an ounce of prevention ...
John: Mexico says the treaty does not create a right (to consular notification) without a remedy and apparently the International Court of Justice agrees. With everything else going on, I guess the Feb. 5 order will not attract too much attention, but it is an interesting legal issue.
Mexico has plenty of remedies if they are unhappy with the way our country treats its citizens. They can withdraw diplomats or their ambassador. They can levy trade or cultural sanctions. They can close their border. They can (and do) issue vociferous protests.
They could probably say, if they consider us in breach, that the same rights no longer apply to our citizens.
They could declare war.
What they probably cannot do, in any realistic sense, is force us to do anything.
Their remedies are the traditional remedies of a national power. The World Court is not one of those traditional remedies. If we don't choose to be bound, we are not. And we should not.
Personally, I think we can try harder to comply. But I don't think we should let some sadistic murderer have three hots and cot for the rest of his life simply because our treaty compliance is not up to par.
[This message was edited by John Rolater on 02-10-03 at .]
It seems that all of these cases being challenged occurred in the 80s or early 90s.
Are there more recent (confirmed) examples of capital murder defendants in Texas not receiving the proper admonitions? If not, then it would seem we've licked the problem.
Well, I've seen a couple claims in more recent non-death trials. It never seems to be an international issue until someone is up for execution, and the time lag for those means we won't know about current violations for several years. I'm fairly sure that our death cases since '95 have all involved citizens, although that must simply be luck of the draw and not design.
We had one recent execution where Mexico protested even though multiple records showed that the defendant had been (or claimed he had been) born in the United States.
[This message was edited by John Rolater on 02-10-03 at .]
Our lawyer argued consular involvement would not have changed how the defendant was treated. That seems to make sense to me.UN Stay Out
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