Foreign Nationals on Death Row

Jose Ernesto Medellin, executed on August 5, 2008. (Medellin v. Texas, 552 U.S. 491)

What is a Foreign National?
  • A foreign national is any individual under a death sentence in the United States who does not have U.S. citizenship.
  • Foreign nationals in the United States may include tourists and visitors, migrant workers with temporary permits, resident aliens, undocumented aliens, asylum-seekers, and persons in transit.

What rights do Foreign National’s have and are they granted?
  • Under Article 36 of the 1963 Vienna Convention on Consular Relations, local authorities must notify detained foreigners “without delay” of their right to have their consulate informed of their arrest.
  • With permission from the foreign national, Consuls are allowed to arrange for legal representation and other assistance.
  • There is significant evidence that that the majority of foreign nationals presently on death row were not properly informed of their rights under Article 36.
  • Out of more than 160 total reported death sentences of foreign nationals, only 7 cases have been identified as completely following the requirements of Article 36.
  • In most cases, detained nationals are not informed of their consular rights until weeks, months, or even years after their arrest. Consequently, consular officials are disabled from providing their nationals with necessary assistance.

Reported Foreign Nationals Under Death Sentences in the U.S. as of July 28, 2010.
  • Total Foreign Nationals: 131
  • Total Nationalities: 34

Developments involving Foreign Nationals and the Death Penalty

March 2008: The U.S. Supreme Court ruled in Medellin v. Texas that the President does not have the authority to order states to bypass their procedural rules and comply with a ruling from the International Court of Justice (ICJ).  The Court held that Texas is not obligated to give Mr. Medellin an additional hearing because the Protocol governing the Vienna Convention on Consular Relations is not "self-executing" and would require an act of Congress to make it binding on the states.   At the time of Mr. Medellin's arrest he was not informed of his right to have his consulate notified of his detention as required under Article 36 Vienna Convention on Consular Relations.  On August 7, 2008, Texas executed Mr. Medellin.

June 2006: The U.S. Supreme Court ruled on two consolidated cases (Sanchez-Llamas v. Oregon and Bustillo v. Johnson) regarding the Vienna Convention on Consular Relations. In both cases, the foreign nationals were not informed by police officers of their consular rights and therefore were unable to request that their respective consulates be notified of their arrests. Although Article 36 was not abided by, the Court decided that the statements made by the foreign nationals at the time of their arrests will not be suppressed, even though the defendants were not notified of their consular rights.

March 2005: The International Court of Justice (ICJ) rules that the U.S. should review the cases of 51 Mexicans whose consular rights were believed to be violated. President Bush makes a statement saying that he believe that State Courts should comply with the ICJ ruling.

December 2004: The Supreme Court grants review to the Medellin v. Dretke case in compliance with an ICJ decision which stated that the US did not provide Medellin with proper information about his consular rights, thereby violating Article 36. (The Supreme Court later returned the case to the lower courts in 2005 without ruling on it, after the President’s statement in March 2005.)

September 2004: The Governor of California signed Senate Bill 1608, which increases the state’s participation in the international prisoner transfer process. This bill also raises consular notification requirements of authorities by necessitating the availability of lists of imprisoned nationals to consulates upon request.

March 2004: The ICJ elaborates the definition of “advisement of consular rights without delay” in Article 36 in the Avena case of Mexico v. US. The ICJ decides that this 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.”

June 2001: The ICJ rules that the U.S. violated its obligations to Germany and Karl and Walter LaGrand (Germany v. US) because law enforcement authorities did not inform the brothers, who were arrested, convicted and sentenced to death, of their rights under Article 36. In fact, Arizona officials did not notify the German nationals of their Article 36 rights until 17 years after their arrest, and just weeks before their executions.

Source: DPIC


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