Death Row

Foreign Nationals

Some people on death row in the U.S. are citizens of other countries, raising human rights issues and questions of U.S. compliance with international treaties.

DPIC Analysis: The Issue of Foreign Nationals in the Courts

DPIC Analysis: The Issue of Foreign Nationals in the Courts

The Issue of Foreign Nationals in U.S. and International Courts

DPIC Page: International

DPIC Page: International

More than 70% of the world’s countries have abolished capital punishment in law or practice. The U.S. is an outlier among its close allies in its continued use of the death penalty.

Overview

Some of those on death row in the U.S. are cit­i­zens of oth­er coun­tries. Most nations of the world, includ­ing the U.S., are par­ties to a treaty (Vienna Convention on Consular Relations) gov­ern­ing the treat­ment of one nation’s cit­i­zens when they are arrest­ed in anoth­er coun­try that is a par­ty to the treaty. Among oth­er pro­tec­tions, the treaty requires that the arrest­ing author­i­ties inform all for­eign detainees with­out delay of their right to have their con­sulate prompt­ly noti­fied of the arrest so that legal aid and oth­er forms of assis­tance can be provided.

The U.S. has not always abid­ed by the pro­vi­sions of this treaty, par­tic­u­lar­ly when the for­eign nation­al is being held by state author­i­ties. The Supreme Court has per­mit­ted numer­ous exe­cu­tions to go for­ward despite vio­la­tions of the treaty, say­ing that fed­er­al courts lack the pow­er to address the issue if the lawyer appoint­ed to rep­re­sent the pris­on­er failed to time­ly raise it in the state courts. At least 34 for­eign nation­als have been exe­cut­ed in the mod­ern era of the U.S. death penal­ty. Most had raised a claim that they had not been advised of their right to con­sular noti­fi­ca­tion and that the result­ing lack of con­sular assis­tance harmed their defense. Nevertheless, progress has been made in inform­ing law enforce­ment author­i­ties of their oblig­a­tions under the treaty.

At Issue

International courts and tri­bunals — includ­ing the International Court of Justice (ICJ) and the Inter-American Commission on Human Rights — have found that the United States has vio­lat­ed inter­na­tion­al law in the cas­es of death-sen­tenced for­eign­ers by fail­ing to com­ply with this treaty. As a rem­e­dy, the ICJ ruled that the United States must pro­vide effec­tive judi­cial review of Vienna Convention vio­la­tions in death penal­ty cas­es. However, while the U.S. is bound under inter­na­tion­al law to com­ply with the ICJ judg­ment, the U.S. Supreme Court has ruled that requir­ing states to com­ply with the treaty requires an act of Congress. The posi­tion of the U.S. in this mat­ter has raised con­cerns about reci­procity: will U.S. cit­i­zens in for­eign coun­tries be able to effec­tive­ly invoke their Vienna Convention pro­tec­tions when arrested?

What DPIC Offers

Through the work of Human Rights Research, DPIC has lists of all for­eign nation­als on U.S. death rows and all for­eign nation­als exe­cut­ed in the mod­ern era. DPIC has issued a report on the inter­na­tion­al impli­ca­tions of its death penal­ty and keeps track of court deci­sions on this mat­ter both in the U.S. and internationally.


News & Developments


Foreign Nationals | Death Penalty Information Center

Capital Case Roundup — Death Penalty Court Decisions the Week of April 52021

NEWS (4/​8/​21) — Nevada: The Nevada Supreme Court has grant­ed cap­i­tal defen­dant Wilber Ernesto Martinez-Guzmans emer­gency motion to stay a pre­ma­ture dead­line the tri­al court had set for his lawyers to file a claim that he is inel­i­gi­ble for the death penal­ty because of intel­lec­tu­al dis­abil­i­ty. A tri­al court in Reno had set an April 20 dead­line for Martinez-Guzman, four months ear­li­er than the time allot­ted under Nevada law, which per­mits a defen­dant to file up to ten days before the sched­uled start of tri­al. The court’s unan­i­mous deci­sion did not explain why it grant­ed the stay. However, Martinez-Guzman’s lawyers argued that the tri­al court dead­line impaired their abil­i­ty to inves­ti­gate and present evi­dence to estab­lish his inel­i­gi­bil­i­ty for the death penalty. 

Martinez-Guzman is a Salvadoran nation­al. Proof of intel­lec­tu­al dis­abil­i­ty requires pro­vid­ing evi­dence of deficits in dai­ly func­tion­ing that were present before age 18, and his lawyers told the court that COVID-19 trav­el restric­tions have made it impos­si­ble to inves­ti­gate and inter­view wit­ness­es in El Salvador to obtain nec­es­sary evi­dence about Martinez-Guzman’s child­hood impair­ments. This court must allow him the oppor­tu­ni­ty to inves­ti­gate, col­lect, ana­lyze and mar­shal the best and most reli­able evi­dence on his intel­lec­tu­al dis­abil­i­ty,” Martinez-Guzman’s lawyers told the court.

Washoe County pros­e­cu­tors argued that the defense request was a delay tactic.


NEWS (4/​8/​21) — Ohio: The Ohio Supreme Court has stayed the sched­uled May 26, 2021 exe­cu­tion of David Martin. The court set the exe­cu­tion date in September 2017, when it affirmed Martin’s con­vic­tion and death sen­tence. However, the state failed to appoint a lawyer to rep­re­sent him in state post-con­vic­tion pro­ceed­ings, caus­ing his time lim­it for fil­ing fed­er­al appeals to expire with­out ever pro­vid­ing him state post-con­vic­tion review of his case. When fed­er­al defend­ers dis­cov­ered that Martin was unrep­re­sent­ed, they sought appoint­ment in the case and moved to stay his execution.

It’s shock­ing to me that this fell through the cracks, that this could go a whole year and nobody could notice this guy didn’t have a lawyer,” assis­tant fed­er­al pub­lic defend­er David Stebbins said. I thought we had bet­ter safe­guards in place.” The court grant­ed the stay, which pros­e­cu­tors did not oppose, pend­ing dis­po­si­tion of … all state post­con­vic­tion pro­ceed­ings, includ­ing any appeals.”


NEWS (4/​6/​21) — Alabama: In an unpub­lished opin­ion, the U.S. Court of Appeals for the Eleventh Circuit has upheld the death sen­tence imposed on Kenneth Smith by an Alabama tri­al judge in 1996 after the sen­tenc­ing jury had vot­ed 11 – 1 to spare Smith’s life. No state in the United States any longer per­mits tri­al judges to over­ride jury votes for life.

After the fed­er­al dis­trict court denied Smith’s habeas cor­pus peti­tion, the appeals court grant­ed Smith per­mis­sion to appeal a sin­gle issue, whether the dis­trict court erred in hold­ing that Smith was not prej­u­diced by his tri­al counsel’s fail­ure to object to the valid­i­ty of the search war­rant issued in his case. The court denied that claim, hold­ing that the war­rant, though fail­ing to com­ply with the let­ter of Alabama law, did not vio­late Alabama law and was not invalid.


NEWS (4/​6/​21) — Oklahoma: After a one-day penal­ty phase, an Oklahoma County jury has rec­om­mend­ed that Derrick Laday be sen­tenced to death for a 2015 mur­der. Laday was one of eight defen­dants charged in stab­bing a man to death, mov­ing his body to a loca­tion under a bridge, and then set­ting a fire to burn the body and destroy evi­dence. The oth­er sev­en — includ­ing Laday’s broth­er and girl­friend — plead­ed guilty to lesser charges. 

Laday was per­mit­ted to waive his right to coun­sel and rep­re­sent­ed him­self in the guilt phase of the tri­al. Stand-by coun­sel took over the case for the short penalty phase. 

Foreign Nationals | Death Penalty Information Center

Capital Case Roundup — Death Penalty Court Decisions the Week of November 302020

NEWS (12/​4/​20) — Nevada: The Nevada Supreme Court has over­turned the death sen­tence imposed on Mexican for­eign nation­al Carlos Gutierrez. In a 4 – 3 rul­ing, the court held that Nevada had vio­lat­ed the Vienna Convention on Consular Relations when police and pros­e­cu­tors failed to noti­fy Gutierrez of his rights to con­sular assis­tance by his gov­ern­ment. The court fur­ther held, based upon exten­sive mit­i­gat­ing evi­dence pre­sent­ed with the assis­tance of the Mexican gov­ern­ment in his post-con­vic­tion pro­ceed­ings, that the denial of con­sular assis­tance had been prejudicial. 

Justices Ron Parraguirre, James Hardesty, and Lidia Stiglich dis­sent­ed. Justice Parraguirre wrote that the 2004 opin­ion of the International Court of Justice in Avena and Other Mexican Nationals v. United States of America find­ing vio­la­tions of the right to con­sular noti­fi­ca­tion in more than fifty death-penal­ty cas­es involv­ing Mexican nation­als is not bind­ing on this court and says noth­ing about this state’s statu­to­ry pro­ce­dur­al bars.” The dis­senters fur­ther said the treaty claim did not involve a new­ly dis­cov­ered right and should have been raised by Gutierrez’s lawyers before the Avena deci­sion. Finally, they assert­ed, Nevada law lim­its relief in sec­ond or suc­ces­sive post-con­vic­tion claims to vio­la­tions of con­sti­tu­tion­al rights. The Vienna Convention claim, they wrote, involves a treaty vio­la­tion, not a constitutional violation. 


NEWS (12/​3/​20) – Florida: The Florida Supreme Court has upheld the death sen­tences imposed on Gerhard Hojan in his cap­i­tal resen­tenc­ing tri­al for the 2002 mur­ders of two employ­ees at a Waffle House restau­rant. Hojan had been uncon­sti­tu­tion­al­ly sen­tenced to death in 2003 after he waived his right to present mit­i­gat­ing evi­dence and three mem­bers of his jury vot­ed for life. 

The Florida Supreme Court over­turned Hojan’s death sen­tences in 2017 and remand­ed the case for a new sen­tenc­ing tri­al. This time the jury unan­i­mous­ly rec­om­mend­ed the death penal­ty. Hojan raised two issues on appeal, that his defense coun­sel had been pre­vent­ed from pos­ing a hypo­thet­i­cal ques­tion to deter­mine whether jurors would auto­mat­i­cal­ly impose a death sen­tence on a per­son con­vict­ed of pre­med­i­tat­ed mur­der and that his death sen­tence was dis­pro­por­tion­ate. The court denied his jury selec­tion claim, rul­ing that coun­sel had been able to ask oth­er ques­tions to ascer­tain poten­tial juror bias. Applying its recent deci­sion in Lawrence v. State that aban­doned the 50-year prac­tice of con­duct­ing com­par­a­tive pro­por­tion­al­i­ty review, the court sum­mar­i­ly reject­ed Hojan’s proportionality claim.


NEWS (12/​2/​20) – Georgia: The U.S. Court of Appeals for the 11th Circuit has dis­missed Georgia death-row pris­on­er Michael Nances chal­lenge to the state’s lethal-injec­tion pro­to­col. The court ruled that the fed­er­al civ­il rights statute was an inap­pro­pri­ate vehi­cle for con­sid­er­ing method-of-exe­cu­tion chal­lenges when a pris­on­er pro­pos­es an alter­na­tive method of exe­cu­tion that is unavail­able and would effec­tive­ly nul­li­fy his death sentence. 

Nance had alleged that Georgia’s lethal injec­tion process con­sti­tut­ed cru­el and unusu­al pun­ish­ment and pre­sent­ed the fir­ing squad as an alter­na­tive exe­cu­tion method. Because fir­ing squad is not autho­rized under Georgia law, the court held that Nance’s pro­posed alter­na­tive would have the effect of nul­li­fy­ing his death sen­tence. Such chal­lenges, the court said, must be brought in a habeas cor­pus peti­tion, rather than under a civ­il rights statute. 

On December 3, the U.S. District Court for the Middle District of Alabama issued an order direct­ing Willie B. Smith III and the state of Alabama to sub­mit briefs on whether the cir­cuit’s rul­ing in Nance required the court to dis­miss Smith’s method-of-exe­cu­tion chal­lenge. Smith is sched­uled to be exe­cut­ed February 112021


NEWS (12/​1/​20) – Texas: By a 7 – 2 vote, the en banc U.S. Court of Appeals for the Seventh Circuit has denied Alfred Bourgeois’ motion to recon­sid­er a three-judge panel’s deci­sion that had refused on pro­ce­dur­al grounds to con­sid­er his claim that he is inel­i­gi­ble for the death penal­ty because of intel­lec­tu­al dis­abil­i­ty. The vote to deny recon­sid­er­a­tion also lift­ed a stay of exe­cu­tion that had been in place in his case. 

Bourgeois is sched­uled to be exe­cut­ed December 11. On December 3, he filed a peti­tion for writ of cer­tio­rari and motion for stay of exe­cu­tion in the U.S. Supreme Court seek­ing a clin­i­cal­ly appro­pri­ate review of his intel­lec­tu­al dis­abil­i­ty claim. The only court to con­sid­er Bourgeois’ intel­lec­tu­al dis­abil­i­ty claim denied it using a def­i­n­i­tion of intel­lec­tu­al dis­abil­i­ty that the Supreme Court lat­er declared unconstitutional.


NEWS (11/​30/​20) – Tennessee: The Tennessee Court of Criminal Appeals has vacat­ed a court-approved agree­ment to resen­tence death-row pris­on­er Abu-Ali Abdur’Rahman to life. The inter­me­di­ate appeals court held that the Davidson County tri­al court lacked juris­dic­tion to resen­tence Abdur’Rahman with­out first mak­ing a deter­mi­na­tion that he was legal­ly enti­tled to post-con­vic­tion relief from his con­vic­tion and death sentence.

Abdur’Rahman had unsuc­cess­ful­ly chal­lenged his con­vic­tion on the grounds that a tri­al pros­e­cu­tor who had a his­to­ry of racial dis­crim­i­na­tion in the exer­cise of jury chal­lenges had uncon­sti­tu­tion­al­ly exclud­ed Black jurors from his case because of their race. He attempt­ed to renew that chal­lenge in light of the U.S. Supreme Court’s 2016 deci­sion in Foster v. Chapman, which over­turned a Georgia death-row prisoner’s con­vic­tion because of dis­crim­i­na­to­ry jury selec­tion prac­tices. The coun­ty dis­trict attor­ney gen­er­al con­ced­ed that Abdur’Rahman’s death sen­tence was a prod­uct of racial dis­crim­i­na­tion and reached a plea agree­ment in which Abdur’Rahman would be resen­tenced to life in prison. The appeals court returned the case to the Davidson County Court to deter­mine whether Abdur’Rahman is enti­tled to sen­tenc­ing relief under the lim­it­ed grounds allowed by the state’s post-conviction statute. 


NEWS (11/​30/​20) – California: The California Supreme Court has upheld the first-degree mur­der con­vic­tions and death sen­tences imposed on Chester Turner for the mur­ders of ten women between 1987 and 1996. The court over­turned an addi­tion­al charge of fetal mur­der, say­ing the only evi­dence pre­sent­ed to estab­lish the via­bil­i­ty of the fetus at the time of death had been inad­mis­si­ble hearsay testimony.


News

Oct 02, 2020

Texas Court of Criminal Appeals Reverses Course, Takes A Second Foreign National with Intellectual Disability Off Death Row

For sec­ond time in eight days, the Texas Court of Criminal Appeals (TCCA) has reversed course after ini­tial­ly reject­ing a death-row prisoner’s claim of intel­lec­tu­al dis­abil­i­ty and has resen­tenced the pris­on­er to life. The deci­sions, both involv­ing for­eign nation­als and both sup­port­ed by local pros­e­cu­tors, marked the sixth and sev­enth time that Texas courts have vacat­ed death sen­tences imposed on intel­lec­tu­al­ly dis­abled cap­i­tal defen­dants since the U.S. Supreme Court in 2017

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