Capital Punishment is more important than the Law?

Great Debates
21

The feds. GARCIA v. SAN ANTONIO METRO. TRANSIT AUTH., 469 U.S. 528 (1985).

The Holland case I linked above doesn’t involve criminal procedure, but it does make it quite clear that the feds may, by enacting a treaty, require states to do things that they would not ordinarily have to. As a matter of fact, states are required to inform foreign national defendants that they may contact their consulate. It’s just that failing to so so does not result in a new trial unless the defendant can show that he was prejudiced by this failure.

22

My point, of course, is that now that we’ve established that a treaty with the US ‘isn’t worth the ink/paper’, why would any other nation bother negotiating a treaty with us in the first place? why would they bother to adhere to their conditions in treaties they’ve signed with us (extradition anyone?) etc. We already have a challenge retrieving folks from outside our borders because of our DP stance. I can’t imagine that this action will make it any easier. We haven’t honored our written word, why, for example, should they believe we’ll honor the spoken word of John Ashcroft ??

23

Well, yeah, Minty–I think Wring’s got it.

If we decide we can abandon all treaties at will, what’s the point of treaties at all?

Further, as my government represents me, I don’t think I care much for the additional precedent of breaking our word. I’ve been taught that a person is only as good as his promises. I don’t like my nation being held to any lower standard.

24

Hey, they’re free to tell us to shove it, too. Many countries already refuse to extradite suspects in American murder cases without assurances that they will not be subject to the death penalty. That’s certainly their perogative, even though I disagree with it. Of course, if we start reneging on those assurances (and I would suggest that James Kopp would be a great place to start), then they’ll probably stop doing so. But do you really think Gerhard Schroeder is going to get all huffy and refuse to extradite American criminals because these two jerks got executed even though Germany requested a last-minute stay in a court with no ability to enforce its orders? I rather doubt it.

On the whole, I just don’t see how this case is going to affect current and prospective treaties. Treaties are made because it is in the signatories’ mutual interests to work out an agreement. As long as it remains in their interests to do so, they will abide by the agreement. Mexico and Canada are not going to back out of NAFTA over this, and NATO will go on despite our differences in this matter.

Besides, it pisses off France, and that’s always a good thing. :smiley:

25

If I’m going to argue about this Vienna Convention, I should at least refer to my file on it.

To begin, its the VIENNA CONVENTION ON CONSULAR RELATIONS AND OPTIONAL PROTOCOLS. A convention of consular relations, seems that could be a point of some significance.

Next, part of the preamble to the convention

I’m sure there’s a point here somewhere.

Finally, we should consider the article of the convention usually cited when arguing about a defendant’s “rights” under the Vienna Convention.

This is copied from http://www.un.org/law/ilc/texts/consul.htm

So, what we have here is a treaty between nations about the functioning of consuls. This is not a treaty that creates indivdual rights in accused people. What we don’t have is something that should in anyway prevent punishment of a person lawfully convicted in our country.

While I’m at it, I’ll quote some bits from a lovely little pamphlet written by Her Majesty’s Foreign & Commonweatlh Office, for those times the British dare risk the wilds of the US. This pamphlet is entitled, “British Consular Services Abroad”. In a section entitled “Do’s and Don’ts in the United States”, it warns

But, should you forget that admonition, it contains the section, “If you are arrested”.

Once you realize that criminal defendants in the United States have a constitutional right to a defense lawyer, you also realize that a consular official is constitutionally useless. So, if you think that Arizona should wait while an international tribunal decides that German nationals have a right to have their hands held before their executed, I can’t help you. Nothing in this Vienna Convention lessens the guilt of a capital murderer, nor can it stand in the way of justice.

26

Umm, check out Alden v. Maine, 119 S.Ct. 2240 (1999), and see if you change your mind:

http://supct.law.cornell.edu/supct/html/98-436.ZO.html

By the way, I’m not saying that you’re wrong, I’m just not sure the issues are so clear cut.

And note also that there was a Supreme Court opinion relating to the LaGrand matter. Here is an excerpt:

Germany v. United States, 526 U.S. 111, 112 (1999)

Again, I’m not saying that you’re wrong, I just think that there is a federalism issue here.

27

So where did they get this must-tell-'em-about-the-consolate rule, liebfels?

28

leibfels, minty get a grip, & stop focusing on the individual guilt/innocence/procedural/due process according to US law of this individual case. I’m suggesting that the World Court would have upheld the conviction etc. However, since the US saw fit to figuratively thumb it’s collective nose at the treaty, it may well be that we’ll be in a less than advantageous position the next time there’s a US citizen we feel may have been railroaded in another country. Think big picture here.

And minty there’s plenty of cases around and about where the host country has been happy to hold on to our fugative (Ira Einhorn in France for example - it’s only recently that he’s been held in custody, if memory serves, and wasn’t there a dual citizen kid who killed and hacked apart some one then fled to Israel). Like I said, I can’t imagine this action will increase our abilty to negotiate the extradiction of folks back to us, nor our ability to assist our citizens in other countries.

29

originally posted by wring

But, we haven’t established that this treaty isn’t worth the paper it’s written. I’ll bet that our two brothers didn’t give local law enforcement much of a clue about their German nationality. Nothing in the Convention requires mind reading on the part of law enforcement. I’ll bet that if we searched the record, their nationality became known long after notifying a consul would have been of any use. Our German murderers would have needed to invoke their nationality in some form to receive any ‘right’ to consular notification. They probably didn’t do it in a timely fashion.

This convention seduces people. Some defense lawyers read it and think they can use it to free a criminal. I’ve seen it - it’s creepy. Ultimately, the Constitution of the United States and of the Several States protects people accused of crimes. Conventions on Consular Relations don’t

30

originally posted by wring

But, we haven’t established that this treaty isn’t worth the paper it’s written. I’ll bet that our two brothers didn’t give local law enforcement much of a clue about their German nationality. Nothing in the Convention requires mind reading on the part of law enforcement. I’ll bet that if we searched the record, their nationality became known long after notifying a consul would have been of any use. Our German murderers would have needed to invoke their nationality in some form to receive any ‘right’ to consular notification. They probably didn’t do it in a timely fashion.

This convention seduces people. Some defense lawyers read it and think they can use it to free a criminal. I’ve seen it - it’s creepy. Ultimately, the Constitution of the United States and of the Several States protects people accused of crimes. Conventions on Consular Relations don’t.

minty green, most of the cases and law review articles I’ve seen on tis subject first appeared in the 1990’s. Someone decided to try to use this treaty as a privately enforceable right. They argue that only through privately enforceable rights can the Vienna Convention have meaning. I think that it was the US State Department that started shopping around the idea that law enforcement must inform foreign nationals of a right to consular notification. They have a publication, “State Department Information Regarding the Vienna Convention on Consular Relations”, where they describe consular notification as a mandatory requirement. Actually, the requirement is that local law enforcement notify the appropriate foreign government. As it turns out, the convention itself has two rules on this. Countries have the option of joining the convention such that local law enforcement must notify the appropriate government, or a country can join such that a citizen of that country has the choice of whether his country is notified.

I imagine, given the language of the information the State Department uses - many musts, mandatorys and shalls - someone must have thought this was a legally enforceable right. Some of the earlier federal cases seems to suggest it was a rivately enforceable right, but case law now swings towards the idea that it isn’t personally enforceable, and is not an obligation on the states.

31

wring
Big picture is that the US is the only country toying with the idea that this convention creates any privately enforceable right. Even the European countries complaining about our executing their murderous citizens do not, within thir own nations jurisprudence, view this as a convention that protects individuals.
Big picture is that the US, and states, is conforming its jurisprudence to what the more enlightened countries are doing. Right now, no US citizen accused of a foreign crime will find any recourse in a foreign court by whining about not seeing his consul.

What the US is doing is upholding the Convention, that way the Convention was written.

32

I disagree liebfels The treaty said that we’d agree to go to the World Court to settle disputes between nations. Forget about the specifics of the individuals here, it’s not relevant. We did NOT wait for the courts decision. And particularly in this case where you and minty seem sure that the decision would have favored the US anyhow, that’s a particularly foolish thing to do.

All of these red herrings about if the brothers knew, if the consulate would have been able to do something different - doesn’t matter. They only go to show that in all liklihood, the World Court would have upheld the US position. And, given that strong belief on your part, why in the world should we deliberately ignore this treaty and refuse to wait for procedures to go along?

Look. the options were:
wait for the World Court to pass judgement (which would have meant we followed the treaty) or do what we did, which seems in violation of our written word.

Results possible:

World Court decision upholds the US position - guys get executed, a month later or whatever, but we’ve upheld our end of the treaty.

World Court decision goes against the US position - we could still at that point thumb our collective noses at the treaty, execute the brothers, break the treaty and be in the same situation we are now. However, we chose option c, which is

ignore even the possability that the World Court would agree with us, and thumb our nose at the treaty completely.

See, in all of these scenarios, we’d have gotten to execute the brothers. However, in only **one ** of them, would we be able to take a relativly upper stance globally of ‘we honored our treaty’.

Do you see now, why I thought it was a very short sighted decision?

33

lucwarm: Alden is an 11th Amendment case. Although, as it rules, citizens cannot sue a state without its consent, the United States certainly can. Thus, the easy answer is that those prison workers should have gotten the feds to sue on their behalf. As we know from Garcia, the Fair Labor Standards Act does apply to the states, so it’s a slam dunk for the feds and the employees. In fact, Justice Souter’s dissent makes precisely that point in Part IV.B.

I had, however, missed the Supreme Court’s Germany v. U.S. case. In fact, I still can’t find it over at Findlaw. Your quote makes it sound to me like a standing case, and I would certainly agree with the conclusion that a foreign nation has no standing to assert the rights of a citizen in a foreign court. They may have certain rights to assist the defendant in his case, but they cannot substitute for the defendant by suing for something he should be asking for.

wring: I agree this isn’t going to help treatment of American criminals abroad. But I cannot imaging that it’s going to hurt their treatment, either.

34

(now, doesn’t it feel better to agree with me???)

actually, in the case of, say, Germany or Great Britain, I’d tend to agree with that. However, in other cases (even countries that haven’t signed the Vienna treaty), I would suggest that we’d be singularly unable to assist in insuring due process for our citizens. There’s a case now of a student in the former Soviet Republic, isn’t there, where we’re not sure that he isn’t being set up? again, consider if we felt our citizen was being railroaded, and the penalty was death, wouldn’t we demand that the other country go through all correct procedures and appeals before the execution? and this action (IMHO) will undermine our ability to demand that they do.

35

Actually, wring, I would bet dollars to dimes that the ICJ would have ruled against Arizona had they delayed the execution. The ICJ seems heavily stacked against the death penalty.

I’m also curious . . . how is it that thumbing our noses at the ICJ after they render a judgment against us is any worse than thumbing our noses at them before they can consider it at all? Personally, I think it’s a lot more honest of us to not play the game at all than to insist “Heads we win, tails you lose.”

36

wring
In my view, the International Court of Justice doesn’t have anything to do with this. I just perused the text of the Convention again, but I didn’t see where we agreed to let them decide any issues involved. I could be wrong, or such things could be contained in other treaties.

My contention is that Arizona did not abrogate any treaty obligation, nor did the United States. I’d be troubled if the US waited for the ICJ to decide matters not within their jurisdiction. Without even bothering with a long-winded debate of federalism issues, the ICJ doesn’t get to decide this issue. We have no reason to wait for them to agree or disagree.

I can’t agree with your assessment that this treaty was ignored. All this treaty gets you is consular notification, if you tell law enforcement at the beginning, “I’m not from around here”. Failing that, you get zero. What makes this Convention useless as a practical matter, and therefore my harping on this issue, is that it doesn’t give you anything to complain about.

You see the US ignoring a treaty obligation. I say that the treaty, as written, has no obligation to ignore. The ICJ doesn’t matter. Due Process matters. If it is short-sighted of me to insist on the primacy of the Federal Constitution and constitutions of the Several States, then I am short-sighted. Given what I know of criminal justice in European legal systems, I will risk their ire should I commit a crime in their legal systems over diminishing the protections US citizens enjoy at home by letting an entity that shouldn’t be involved decide whether the State of Arizona did it right.

I can’t see that giving foreign nationals greater rights will somehow lead to foreign countries ending police corruption against US citizens abroad. They’ll still do what they do. We’ll still give criminals more protections than criminals in most any other part of the world.

37

Dang it, ya’ll need to stop posting while I’m trying to write!

Anyway, when it comes to iffy places like Russia and China, I doubt they’re too concerned about how we handle consular phone calls anyway. Besides, my point here is not that individual countries should feel free to do whatever they want to foreign citizens accused of crimes. Rather, I think that as long as they receive a fair trial, full access to competent legal help, and the basic protections of due process and human rights, it’s perfectly fair to stick them with whatever happens. China and Russia aren’t real big on any of those prerequisites I just listed, so I doubt that the Vienna Convention is going to be high on an accused American citizen’s list of priorities.

38

minty green says:

Help! I thought the ICJs only involvement here was to say whether the convention had been respected or not. Would the ICJ have any jurisdiction in the murder case at all ?

S. Norman

39

well, minty you seemed certain before that they’d rule in AZ’s favor. at any rate, while nose thumbing after the fact wouldn’t necessarily be better than nose thumbing before the fact, the point is, that there was exactly one potential positive outcome, and this was dismissed in favor of a negative one. I don’t understand.

liebful you’re not seeing what I’m saying, perhaps if I try again. The part of the treaty that we ignored was the part where we, the US agreed to arbitrate our differences with other countries. Again, again again, the particulars of this case are irrelevant. We agreed to listen to the World Court. We decided not to. It is this that I am concerned about.

minty, yes, we would only be able to secure procedural ideals for our citizens etc, but again, the issue to me is that in the future, should one of our citizens be sentenced to death elsewhere, and we have concerns about procedural issues, the other country can ‘act like us’ and say ‘well, we’re certain that we abided by our own rules, screw the Vienna treaty, since y’all did’, and execute the person.

Try it this way. What possible bad outcome have we avoided by this action?

possible outcome 1. World court agreed with us, we execute the guy next month. Result ? we’ve abided by our treaty and still gottent the execution, a tad later. (think McVeigh - by delaying the execution a month, the Justice Department was able to claim they’d gone the extra mile to be fair, despite the late accumulation of evidence not turned over) Rest of the world thinks we’re schmucks 'cause we have the dp, but ‘at least they keep their word on treaties’

  1. World court disagrees with us. We say ‘too bad, we’re ignoring the treaty’ and executing the guy. Rest of the world gets to think we’re schmucks who won’t keep our word.
  2. Ignore the treaty before the court has a chance to rule, execute the guy. Rest of the world gets to think we’re schmucks who won’t keep our word.

Gee, seems that #2 and 3 have the same outcome, and by taking this action, we avoided option #1, which had a GOOD outcome ('at least they keep their word on treaties).

40

Reads like you’re getting snippy.

I’ll try to make it clear that I understand your point, but suggest that it is irrelevant to the executed Germans.

The United States agreed to settle a dispute with Germany. For example, from the text of the ICJ’s judgment:

This is an argument between the US and Germany. The murderous German defendants aren’t invloved - its not their rights - their kaput. German has a dispute. They can still argue about it if they want. The Convention doesn’t contain a remedy for the criminals. The law of the United States doesn’t recognize private rights from a treaty unless the treaty specifically reads that it creates private rights. Federalism might very well preclude the federal government from interfering in the execution of the murderers.

Let Germany have their dispute with the US. The feds went to it, they argued. The ICJ is leaning heavily towards the view that this critter creates private rights. They don’t get to make that decision for the United States.

What happened to the LaGrands doesn’t harm US citizens abroad any more than any other execution of foreign nationals in the US.

I understand your point - it seems to me that you suggest it is better to look like we protect rights than to actually protect them. The ICJ has jurisdiction involving the US and Germany - US law doesn’t give it jurisdiction over the LaGrands and nothing in the text of the Convention or the US’ ratification of it grants it such jurisdiction.

Finally, if the execution was postponed for the ICJ, how many decades would pass before they issued a judgment?