Academic journal article Texas International Law Journal

Overcoming Federalism in Internationalized Death Penalty Cases

Academic journal article Texas International Law Journal

Overcoming Federalism in Internationalized Death Penalty Cases

Article excerpt


Federalism, then, was largely irrelevant to the conduct offoreign affairs even before it began to be a wasting force in U.S. life generally.1

In recent years, foreign-born defendants sentenced to death in the United States have begun to assert international law violations in their efforts to obtain post-conviction relief from their sentences. The Vienna Convention on Consular Relations2 (the Convention), a treaty providing foreigners the right to contact their consulate, has become the most important tool in this regard. American law enforcement officers generally do not observe the treaty requirement;3 of some eighty-three foreign nationals currently on death row,' the vast majority was not alerted to its right to consular notification under the Convention.5 Defendants' attempts to raise the treaty violation claim have not been fruitful so far-at least two-thirds of foreign nationals executed since reinstatement of the death penalty in 1976 unsuccessfully raised the issue.b

In recent months, a new subset of these Vienna Convention cases has emerged. In two cases, Breard and LaGrand, the defendants' countries of origin attempted to delay their executions by bringing suit against the United States in the International Court of Justice (ICJ) alleging violations of the treaty. In both cases, the ICJ issued interim orders asking the United States to prevent the executions pending resolution of the international dispute. In both cases, the U.S. Supreme Court declined to stay the executions and the death sentences were carried out.

For proponents of public international law, these are worrisome cases.' First, they point to a disregard for the underlying right to consular notification. Because the United States has argued so strenuously for consular notification for its own nationals, its failure to provide the right (or remedy) to foreign nationals creates the impression that it does not take its obligation seriously-particularly in cases involving the death penalty.8 Second, the cases illustrate the United States' disregard for the rulings of the International Court of Justice, with which the United States has agreed to comply.9 Neither the government nor the courts responded to the ICJ's orders. Yet from a purely domestic law perspective, the cases simply confirm that international law is subordinate to domestic law; neither the violation of the Vienna Convention nor the disregard for the ICJ's rulings had any bearing on the application of domestic death penalty laws.

At the heart of the cases is the tension between federalism"0 values protecting states' rights to impose a criminal sentence and U.S. commitment to international law. One consequence of this tension is the awkward arrangement whereby state governors determine the United States' compliance with international law, even though the states themselves are not internationally accountable.' ` Indeed, states' actions or laws often conflict with the nation's international obligations, and not always to the detriment of human rights law.'2 As evidenced by a recent case challenging a Massachusetts selective purchasing law, the state-federal conflict also arises where states seek greater human rights protections than the federal government feels obligated to provide."

Assuming the desirability of easing this tension-particularly where it fuels vociferous opposition-this paper suggests that the U.S. Supreme Court should, in its discretion, grant a stay of execution whenever a death penalty case has been internationalized by virtue of concurrent litigation in international court. As one commentator has already argued in reference to Breard, the Court could have entered a stay of execution based on comity to the International Court of Justice.'4 Federal courts have long invoked principles of comity in regulating their relation to both foreign courts and state courts. As a guiding principle, comity allows the Court to acknowledge the importance of international law without eroding federalism structures that feature so importantly in death penalty jurisprudence. …

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