WHEN AMERICAN STATES EXECUTE CITIZENS OF FOREIGN COUNTRIES: The Case of Gerardo Valdez

By MICHAEL C. DORF
Tuesday, Jul. 24, 2001

On July 20, Oklahoma Governor Frank Keating denied Gerardo Valdez's plea that his death sentence be commuted to lifetime imprisonment. Governor Keating's decision was surprising because in this case, unlike in most others, the Oklahoma Pardon and Parole Board had recommended clemency based on mitigating evidence that was not presented at Valdez's original trial. Moreover, in denying clemency, Governor Keating rejected not only the Board's recommendation, but also a plea from Mexican President Vicente Fox.

Why was the President of Mexico interceding in an Oklahoma murder case? Because Valdez is a Mexican citizen, and it is undisputed that when he was arrested, he was not advised of his right to consult with Mexican diplomats in the United States. It is also undisputed that the failure to so advise him violated Article 36 of the Vienna Convention on Consular Rights, to which both the United States and Mexico are signatories.

In a letter to President Fox, Governor Keating stated that he was nonetheless denying clemency because Valdez had not proved that consultation with the Mexican government would have averted the death penalty. In other words, according to Governor Keating, this was a case of "no harm, no foul."

Needless to say, the Mexican government does not see it that way, and may bring suit against the United States in the International Court of Justice in the Hague — known as the "ICJ" and sometimes informally called the "World Court." Just last month, that court ruled against the United States in a very similar case, Germany v. United States of America. That case involved Arizona's execution of Walter LaGrand, a German national.

The Valdez and LaGrand cases illustrate how state and national death penalty policy in the United States have put us at odds with world opinion and international law.

The LaGrand Litigation

In February 1984, brothers Walter and Karl LaGrand, German citizens who were born in Germany, were arrested in the United States for bank robbery and murder. They were not informed of their rights under the Vienna Convention at the time. Later that same year, they were both convicted and sentenced to death.

In the LaGrands' case, the breach of the Vienna Convention was in some sense technical and excusable. Because the LaGrand brothers had lived in the United States since early childhood, the Arizona officers who arrested them might have innocently failed to realize they were German citizens entitled to consular consultation.

Indeed, probably for this reason, although the German government learned about the case in 1992, it initially took no legal action. That changed, however, a week before Walter LaGrand's scheduled execution, when (according to its ICJ submission) Germany learned that Arizona officials in fact did know that the LaGrands were German citizens at the time they were arrested.

German diplomats then lobbied intensively with the U.S. State Department, but to no avail. On the day of the scheduled execution, Germany filed an emergency motion with the ICJ. The ICJ promptly issued an order to the United States to "take all measures at its disposal to ensure that Walter LaGrand is not executed pending [a] final decision" by the ICJ.

Armed with the ICJ ruling, Germany immediately asked the United States Supreme Court to order the Arizona Governor to stay LaGrand's death sentence. That request came only two hours before the scheduled execution. In its 1999 decision in Federal Republic of Germany v. United States, the Supreme Court rejected the request by a 7-2 vote.

The Court cited "the tardiness of the pleas" and jurisdictional barriers. Arizona promptly put Walter LaGrand to death.

Habeas Corpus: A Catch-22 for the LaGrands?

In its June 2001 ruling in LaGrand, the ICJ acknowledged that, as the U.S. Supreme Court had noted, Germany could have acted in a more timely fashion. Nonetheless, the ICJ found that the United States — including the Executive branch, the United States Supreme Court, and the government of Arizona — had acted in violation of its treaty obligation by failing to comply with the ICJ order.

In holding the U.S. accountable for conduct taken by any branch or level of government, the ICJ rejected a key U.S. argument: that the LaGrands were procedurally barred from raising their rights under the Convention.

Under U.S. law, a person held in custody by a state may challenge his conviction or sentence by seeking a writ of habeas corpus in federal court. However, the prisoner is not entitled to a completely new adjudication. For example, a prisoner may not raise an objection in federal court if he has not previously raised it during his state court proceedings.

This rule is known as the doctrine of procedural bar, and it implements the idea that federal habeas corpus proceedings only exist to remedy state court errors. If an issue wasn't presented to a state court, or wasn't presented to a state court in accordance with its prescribed procedures, then the inmate is barred from raising it for the first time in federal court.

The concept of procedural bar has been part of federal habeas corpus law for a very long time. Over the last twenty-five years, however, the Supreme Court has interpreted it with increasing strictness, narrowing the circumstances under which habeas relief can be afforded.

Thus, in 1998, in yet another case arising under the Vienna Convention, Breard v. Greene, the Justices held that a Paraguayan national was procedurally barred from raising his treaty rights because he had earlier failed to raise them in the Virginia courts, where, by 1998, it was too late to do so.

In its ruling in the LaGrand case, the ICJ stated that in principle, there is nothing wrong with national and sub-national courts requiring that treaty rights be raised in accordance with local procedural requirements, so long as those requirements are fair. But where the U.S. Supreme Court had found no unfairness in applying the procedural bar doctrine, the ICJ saw a Catch-22.

According to the ICJ, the reason the LaGrands didn't raise their rights under the Vienna Convention in a timely fashion was because they did not know of those rights — which was itself because the police violated the Convention by failing to inform them of their rights.

Long-Term Implications of the ICJ Ruling

In its LaGrand ruling, the ICJ lauded the United States for its efforts to comply with the Vienna Convention in the future. In particular, the State Department has conducted training programs and distributed over 60,000 brochures and 400,000 pocket cards to federal, state, and local law enforcement officials to encourage compliance. The State Department hopes that, as a result of this program, arresting officers issuing Miranda warnings now will also inform suspects of their right, if foreign nationals, to consular consultation.

But such warnings will not do anything for Gerardo Valdez and the nearly one hundred other foreign nationals on death rows in the United States, nor for the many more foreign nationals serving prison sentences. After all, the Vienna Convention applies to all foreign arrestees, not just those facing possible execution.

As to foreign citizens whose rights under the Vienna Convention have already been violated, the ICJ ruling makes clear "the obligation of the United States under certain circumstances to review and reconsider convictions and sentences," notwithstanding the procedural bar doctrine.

It remains to be seen whether the U.S. will comply. The U.S. Supreme Court's ruling in the LaGrand case indicates that a majority of the Justices believe that the federal government lacks the power to enforce the Vienna Convention against unwilling states.

Yet Article VI of the U.S. Constitution states that "all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land." That means that there is ample federal power to enforce the Vienna Convention.

Finally, although I have discussed cases in which foreign killers invoked the Vienna Convention to escape the death penalty, it is worth remembering that the Convention also protects U.S. citizens traveling abroad.

If you were arrested while traveling in a foreign country, wouldn't you want to be informed of your right to contact the U.S. Embassy? And, more fundamentally, wouldn't you want the country to honor that right? By failing to comply with the ICJ's authoritative construction of the treaty, the U.S. may court a backlash, thus jeopardizing our ability to protect our own citizens abroad.


Michael C. Dorf is Vice Dean and Professor of Law at Columbia University.

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