More than 60 for­eign cit­i­zens rep­re­sent­ing 22 nation­al­i­ties are under sen­tence of death in the United States of America (USA). In vir­tu­al­ly every case, the arrest­ing author­i­ties failed to noti­fy detained for­eign­ers of their right to com­mu­ni­cate with their con­sular rep­re­sen­ta­tives. As a con­se­quence, for­eign nation­als con­front­ed by an unfa­mil­iar legal sys­tem were tried and sen­tenced to death with­out the ben­e­fit of the cru­cial sup­port from the author­i­ties of their native coun­tries. Since 1993, the United States has exe­cut­ed at least 5 for­eign nation­als, includ­ing cit­i­zens of the Dominican Republic, Mexico and Cuba.

In 1969, the USA rat­i­fied the Vienna Convention on Consular Relations, a mul­ti­lat­er­al treaty reg­u­lat­ing the func­tions of con­sulates in at least 144 nations. Article 36 of the Vienna Convention requires the local author­i­ties to prompt­ly inform arrest­ed for­eign­ers of their right to con­sular assis­tance. At the request of the detainee, the author­i­ties must noti­fy the con­sulate of the arrest and per­mit con­sular access to the detained national.

Article 36 ensures that all arrest­ed for­eign­ers have the means at their dis­pos­al to pre­pare an ade­quate defence and to receive the same treat­ment before the law as domes­tic cit­i­zens. Consuls are unique­ly placed to pro­vide a wide range of essen­tial ser­vices to their nation­als, includ­ing legal advice and assis­tance, trans­la­tion, noti­fi­ca­tion of fam­i­ly mem­bers, the trans­fer­ring of doc­u­men­ta­tion from the native coun­try and observ­ing court hearings.

The right to con­sular noti­fi­ca­tion and vis­its is also reit­er­at­ed under inter­na­tion­al human rights stan­dards, includ­ing Principle 16(2) of the UN Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment and Article 38(1) of the UN Standard Minimum Rules for the Treatment of Prisoners.

The US Department of State con­sid­ers Article 36 noti­fi­ca­tion for American cit­i­zens arrest­ed abroad to be a mat­ter of the high­est impor­tance. However, the US fed­er­al gov­ern­ment has tak­en no mean­ing­ful mea­sures to ensure domes­tic com­pli­ance with the Vienna Convention or to rem­e­dy past vio­la­tions which result­ed in death sen­tences and exe­cu­tions of for­eign nation­als. Amnesty International is con­cerned that what appears to be a dou­ble stan­dard applied by the US author­i­ties may under­mine the integri­ty of inter­na­tion­al law and endan­ger the fun­da­men­tal human rights of for­eign nation­als detained worldwide.

In May 1997, 32 US law firms that rep­re­sent for­eign­ers on death row sent a joint let­ter to Secretary of State Madeleine Albright, protest­ing the denial of their clients’ con­sular rights. The let­ter point­ed to ​“an alarm­ing, wide­spread pat­tern of indis­putable and inde­fen­si­ble vio­la­tions” of Article 36 and urged the State Department to inter­vene. To date, there has been no sub­stan­tive reply from the Secretary of State to the joint letter.

The cas­es of two Mexican nation­als exe­cut­ed in 1997 illus­trates the vital impor­tance of time­ly con­sular inter­ven­tion and the utter fail­ure of the US author­i­ties to meet their oblig­a­tions under international law.

On 18 June 1997, Texas exe­cut­ed Irineo Tristan Montoya, a Mexican nation­al sen­tenced to death in 1986. Following his arrest, Montoya under­went a lengthy police inter­ro­ga­tion with­out the pres­ence of an attor­ney or the assis­tance of the Mexican Consulate. He then signed a four-page con­fes­sion writ­ten in English, a lan­guage that he did not read, speak or understand.

Although only eigh­teen years old at the time and despite his sec­ondary involve­ment in the crime (Montoya was charged as an acces­so­ry to the mur­der), Montoya was con­demned to death. The actu­al killer received a prison sen­tence. Texas author­i­ties were ful­ly aware of Montoya’s nation­al­i­ty but failed to inform him of his right to consular access.

Shortly before the exe­cu­tion, the State Department con­tact­ed the Governor of Texas, in a belat­ed attempt to deter­mine the cir­cum­stances sur­round­ing the breach of Article 36. However, in a remark­able reply that showed the Texan author­i­ties’ mis­un­der­stand­ing of, or con­tempt for, inter­na­tion­al treaties, the offi­cials refused to inves­ti­gate the vio­la­tion or to assess its pos­si­ble impact, on the grounds that Texas was not a sig­na­to­ry to the Vienna Convention. A final appeal to the US Supreme Court on the treaty vio­la­tion was dis­missed without comment.

Mario Benjamin Murphy was exe­cut­ed in Virginia on 17 September 1997. Murphy was one of six peo­ple charged with the 1991 ​‘mur­der for hire’ of a US Navy pet­ty offi­cer. Murphy ful­ly coop­er­at­ed with the police and was clear­ly not the most cul­pa­ble indi­vid­ual. He was also the only defen­dant not offered a plea bar­gain by the pros­e­cu­tion and the only one sen­tenced to death — and the only foreign national.

Mario Murphy final­ly learned of his con­sular rights in 1996; how­ev­er, both the prison war­den and the Virginia Attorney General refused his request that they con­tact the Mexican Consulate on his behalf. A District Court judge lat­er crit­i­cised Virginia offi­cials for their ​“defi­ant and con­tin­u­ing dis­re­gard” of the Vienna Convention. During a hear­ing at the Fourth Circuit Court of Appeal, the Virginia Assistant Attorney General and two of the pan­el judges admit­ted that they had nev­er heard of the Vienna Convention pri­or to the Murphy case.

The Mexican Consulate filed an ​‘ami­cus curi­ae’ brief (inter­est­ed par­ties may appeal to a court via an ​‘ami­cus curi­ae’ (friend of the court) brief), out­lin­ing the ​“flex­i­ble and far-reach­ing assis­tance to avoid impo­si­tion of the death penal­ty” which con­sular offi­cials would have pro­vid­ed, includ­ing efforts to obtain a plea bar­gain and the gath­er­ing of mit­i­gat­ing evi­dence. Ignoring the obvi­ous mis­con­duct of state offi­cials, the US courts ruled that the issue was ​“pro­ce­du­ral­ly default­ed” because Murphy had failed to raise the claim at an ear­li­er stage of appeal.

The day after Murphy’s exe­cu­tion, the State Department sent a for­mal apol­o­gy to the Mexican Embassy for the fail­ure of Virginia offi­cials to pro­vide Murphy with the required noti­fi­ca­tion of his right to consular assistance.

The con­sis­tent fail­ure of the United States to meet its oblig­a­tions under the Vienna Convention on Consular Relations is an issue of legit­i­mate and grow­ing con­cern to the inter­na­tion­al com­mu­ni­ty. The gov­ern­ments of Canada, Mexico and Paraguay have all tak­en vig­or­ous diplo­mat­ic and legal action to pro­tect the con­sular rights of their cit­i­zens cur­rent­ly under a sen­tence of death.

Despite spo­radic advi­so­ry notices from the State Department, most state and local author­i­ties remain igno­rant of their Article 36 respon­si­bil­i­ties. Gerald Arenberg, Executive Director of the National Association of Retired Police Chiefs, was recent­ly quot­ed as stat­ing that: ​“In my 47 years in law enforce­ment, I have nev­er seen any­thing from the State Department or FBI about this”.

In an inter­view pri­or to the exe­cu­tion of Mario Murphy, the tri­al pros­e­cu­tor, Robert Humphreys, showed con­tempt for Virginia’s treaty vio­la­tion: ​“I mean, what is the rem­e­dy? I sup­pose Mexico could declare war on us…To me, it’s a com­plete­ly ridicu­lous issue”. In the same inter­view, Humphreys gave an entire­ly incor­rect inter­pre­ta­tion of Article 36: ​“The bur­den is on [defen­dants] to say, ​‘Hey, excuse me, I’m a Mexican cit­i­zen. Tell my Embassy’… “.

Many vio­la­tions of for­eign nation­als rights under the Vienna Convention are also vio­la­tions of the USA’s oblig­a­tions under the International Covenant of Civil and Political Rights (ICCPR), rat­i­fied by the USA on 8 June 1992. For exam­ple, Article 14 (3a) of the ICCPR states that:

‘…[a defen­dant has the right] To be informed prompt­ly and in detail in a lan­guage which he under­stands of the nature and cause of the charge against him;’ (empha­sis added). General Comment 15 of the ICCPR’s Position of Aliens under the Covenant also expands on the rights of for­eign nation­als charged with a criminal offence.

In response to mount­ing inter­na­tion­al pres­sure, the State Department is report­ed­ly con­sid­er­ing mea­sures to ensure bet­ter domes­tic com­pli­ance with the Vienna Convention. These mea­sures are said to include revised mate­r­i­al for advis­ing US police forces of the pro­ce­dures to be fol­lowed when arrest­ing foreign nationals.

Amnesty International wel­comes these pre­lim­i­nary steps. However, the orga­ni­za­tion believes that they are insuf­fi­cient to ensure that all US police depart­ments are aware of – and com­ply with – the bind­ing require­ments of Article 36.

Amnesty International also remains deeply con­cerned over the reluc­tance of the US author­i­ties to devel­op effec­tive reme­dies in the cas­es of for­eign nation­als who were sen­tenced to death with­out receiv­ing noti­fi­ca­tion of their con­sular rights. The US Government con­tin­ues to oppose efforts by death-sen­tenced for­eign cit­i­zens (and their gov­ern­ments) to obtain relief through the courts.

In response to a law-suit filed by the Republic of Paraguay against Virginia offi­cials, attor­neys for the US Department of Justice argued that for­eign gov­ern­ments are not enti­tled to a judi­cial rem­e­dy for Article 36 vio­la­tions and that the prop­er recourse for breach­es of con­sular rights is through diplo­mat­ic chan­nels. However, it is not clear how diplo­mat­ic chan­nels could cor­rect the vio­la­tion of the rights of those for­eign nation­als cur­rent­ly under sen­tence of death.

In light of the State Department’s insuf­fi­cient efforts to inter­vene pri­or to the recent exe­cu­tion of for­eign nation­als, Amnesty International finds this posi­tion com­plete­ly unac­cept­able. Without fair and effec­tive reme­dies for past vio­la­tions of Article 36 in cap­i­tal cas­es, any assur­ances of future domes­tic com­pli­ance from the US author­i­ties can only be seen as hollow promises.

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