II. Federal Jurisdiction and Procedure: B. Status of International Law
Enforceability of Treaties in Domestic Courts--Vienna Convention on Consular Relations.--Article 36 of the Vienna Convention on Consular Relations (1) (VCCR) "guarantees open channels of communication between detained foreign nationals and their consulates in signatory countries." (2) In a 2005 case, Medellin v. Dretke, (3) the Supreme Court chose not to consider whether that Article "create[d] a judicially enforceable individual right," (4) instead dismissing the writ of certiorari as improvidently granted. (5) Justice O'Connor, dissenting from the Court's dismissal, noted that it is "unsound to avoid questions of national importance when they are bound to recur." (6) Confronting the same issue a year later, the Court again failed to heed Justice O'Connor's advice. Last Term, in Sanchez-Llamas v. Oregon, (7) the Supreme Court declined to decide whether Article 36 creates a judicially enforceable right, (8) holding that even if it does, suppression is not an appropriate remedy, and state procedural default rules apply. (9) By avoiding the question of the existence of judicially enforceable rights under Article 36 and by considering only a very limited set of remedies, the Court's decision exemplifies judicial minimalism. While "leaving things undecided" may be advisable in some circumstances, (10) in Sanchez-Llamas it was an unwise approach that is likely to result in excessive uncertainty and confusion when the question resurfaces in the lower courts.
Moises Sanchez-Llamas, a Mexican national, was arrested in December of 1999 for his involvement in the shooting of a police officer. (11) After being advised of his Miranda (12) rights, Sanchez-Llamas made self-incriminating statements in the course of interrogation. (13) He was never informed of his right under Article 36 to contact the Mexican consulate. (14) Sanchez-Llamas was charged with attempted aggravated murder, attempted murder, and other offenses. (15)
Before trial, Sanchez-Llamas moved to suppress his custodial statements, arguing that they were made involuntarily and resulted from a violation of Article 36. (16) The trial court denied the motion, and Sanchez-Llamas was convicted and sentenced to over twenty years in prison. (17) The Oregon Court of Appeals affirmed the trial court's decision. (18) The Oregon Supreme Court also affirmed, holding that Article 36 did not create individually enforceable rights and that suppression would be an inappropriate remedy in any event. (19)
Mario Bustillo, a Honduran national, was arrested in December 1997 and charged with murder. (20) Like Sanchez-Llamas, he was never informed of his Article 36 rights. (21) Bustillo was convicted of first-degree murder and sentenced to thirty years in prison. (22) He did not raise the VCCR violation at trial or on direct appeal, asserting it for the first time in his state habeas corpus petition. (23) The court dismissed Bustillo's petition, holding that the Article 36 claim was "procedurally barred" because Bustillo had not previously asserted it. (24) The Supreme Court of Virginia denied Bustillo's petition for appeal, finding no reversible error in the habeas court's dismissal of the VCCR claim. (25)
The Supreme Court affirmed both judgments. Writing for the majority, Chief Justice Roberts (26) declared it unnecessary to decide whether Article 36 granted individually enforceable rights. (27) Instead, the Court assumed without deciding that the VCCR conferred such rights and proceeded directly to the issue of "whether suppression of evidence is a proper remedy for a violation of Article 36." (28)
Turning first to Sanchez-Llamas's arguments, the Court held that the VCCR did not itself mandate suppression. (29) Because the treaty did not require a specific remedy, the Court could not create one for the state courts given the limits of its supervisory powers. (30) In any case, Article 36(2) required that Article 36 rights be "exercised in conformity with the laws and regulations of the receiving State. …