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Bush, the Death Penalty and International Law

by NOAH LEAVITT

The Bush Administration appears to have a few clear priorities. First, although he often does not act like it, the President wants to be seen as complying with at least some aspects of international law (even if he interprets those laws quite differently from the rest of the world). Recall Ari Fleischer’s frequent refrains of “we are treating Guantanamo detainees according to international standards.”

Second, the Administration does not want to spend any of its precious tax dollars defending criminals on Death Row. Think of the speed with which capital defendants are often whisked through the justice system based on shoddy allegations by untrustworthy witnesses and defended by novice or (even worse!) sleeping attorneys. Texas and several of its southern neighbors seem especially adept at expediting the machinery of death.

After many hours racking my brain on this problem, I’ve finally figured out how the Administration can both appear to be complying with binding international legal precedent and at the same time reduce even further the money it spends for legal assistance to prisoners on Death Row.

The trick? Easy! The U.S. should allow foreigners who come here for their legal studies to defend prisoners on death penalty, but should restrict them to only defending foreign nationals. In fact, if the Bush administration wants to comply with two recent binding decisions of the International Court of Justice, the U.S. must do so.

Currently the United States admits that it executes foreigners who commit certain crimes in America without giving them access to legal defense in violation of international law. So doesn’t it make sense that the administration should allow foreign lawyers to practice law in the United States for the specific purpose of defending these foreign individuals?

Yet, as might be expected, the exact opposite has been the case, leading to highly inefficient, unfortunate and rather ironic outcomes. A recent news story from Louisiana indicates that the United States is preventing the very lawyers who could be giving the U.S. the appearance of complying with its binding legal obligations from practicing their craft.

European Law Students and American Legal Dilemmas

The first order of business is to recognize the penchant of certain Southern states to prohibit foreign law students from practicing certain types of politically-sensitive law, i.e. capital defense work.

A few years ago, Louisiana passed such a law prohibiting non-resident foreigners from taking the state bar exam, effectively eliminating their chances to practice law in the Big Easy. This year, Emily Maw, a Welsh student in the top of her graduating class at Tulane Law School in New Orleans, filed suit challenging this law.

Ms. Maw is passionate about fighting the death penalty. In a recent interview with the American Bar Association Student Lawyer magazine, she stated that doing capital defense work got her through the drudgery of law school. She is smart and dedicated. Her clients are lucky to have someone as committed and tenacious as this young woman.

While at first this story may strike some as odd, it is in fact part of an unreported but significant and growing trend. For the past several years, Europeans have been coming to the United States to attend law school, take state bar exams in the Deep South, and practice criminal defense law. Their goal? Eliminating capital punishment in America.

Why are they Doing This?

Europeans hate the death penalty. When surveys demonstrate a values gap between the United States and the Continent, much of the difference is rooted in attitudes toward a state’s right to take the life of someone within its borders. A requirement for a country to join the European Union is the abolition of the death penalty. Similarly, the draft Constitution for Europe explicitly outlaws capital punishment.

They also find it barbaric that the U.S. flaunts its use of capital punishment. A few years ago, an American ambassador to a certain European country remarked that his diplomatic peers were constantly raising the issue of the death penalty with him, which the diplomat felt was harming bilateral relations and making his job much more difficult.

Now, Europeans are doing more than complain-they are starting to act. More and more European lawyers and human rights groups are filing amicus briefs in U.S. capital cases. European heads of state call governors to plead for clemency for those about to be executed. The EU funds several major anti-death penalty initiatives in the U.S.

Now, there is this new thing — these foreign lawyers are coming to our shores. And they’re staying. And they are litigating. And sometimes they are winning.

The United States Fails to Uphold Rights of Foreigners on Death Row

The United States loves executing people so much that we are willing to do it to people who aren’t even citizens of our country. You might not be able to get food stamps but we can still kill you. Imagine that.

In fact, at the very same time as some foreigners are coming to the United States to fight the death penalty, the United States is executing other foreigners — including some Europeans — who commit certain serious crimes while in America.

And America frequently executes some of these foreigners in breach of its international legal responsibilities. Then we apologize. Then we do it again. Oops.

Of particular concern are the United States’ repeated violations of its obligations under the Vienna Convention on Consular Relations. The U.S. has ratified this international agreement thus putting it on equal legal status with the Constitution. One of the provisions of the Vienna Convention guarantees foreign nationals who are arrested in the U.S. the right to access their consulate in order to arrange legal representation

Numerous cases have been documented in which foreign nationals were sentenced to death row for their crimes but were never informed of this right and so were denied crucial help. Groups such as Amnesty International that track executions of foreigners in the U.S. show at least 20 foreign nationals who have been executed during the last decade, nearly all of whom claimed they were never told of their right to contact their consulates. Another approximately110 foreign nationals are currently on Death Row in America.

The International Court of Justice, or World Court, which is the international community’s highest tribunal for adjudicating disputes between countries, has issued two significant rulings in the past few years criticizing the United States’ failure to abide by the Vienna Convention.

The first case was brought by Germany, which alleged that Arizona executed two brothers, Karl and Walter LaGrand, both German nationals, without telling them of their right to access the German consulate in Los Angeles after they were arrested for killing a bank teller. The Court found the United States in breach and ordered the State Department to devise a remedy consistent with U.S. law. The Court ruled that the U.S.’s polite apology was not a sufficient remedy.

More recently, Mexico brought a similar case on behalf of more than fifty Mexican nationals on Death Rows in numerous states. The Court recently issued provisional measures — similar to an injunction — in favor of three of the Plaintiffs with the closest execution dates, while the Court considers the situation of more than 50 others. A ruling is expected sometime next year.

Although It May Sound Strange, the U.S. Needs International Aid

One element of globalization is that more and more people want to see what is going on in other lands. They then want to report on those conditions to their countryfolk with one eye on possibly changing those conditions with which they do not agree. For example, after the utterly mystifying presidential elections in 2000, many pundits called for international elections monitors to visit the United States to review the voting, similar to what happens in many other countries which go through considerable political change. The European law students are like these observers, only they want to make changes in what they see when they are here.

Everyone knows that the way that defendants reach the gallows is a tale of woe and shame. One of the major critiques of the death penalty is that the defendants often have subpar representation. True stories about lawyers sleeping through capital trials appear in the press too frequently. Less often heard is the undertraining, underfunding and understaffing that pervades the capital defense bar.

Thus, by filling in the gaps in our criminal defense bar, these students are doing our country a huge favor. When idealistic young American law student get out of law school, they are typically in debt up to their eyeballs and can’t take important but low paying jobs such as public defense work. We should be thankful to these foreigners for helping accused criminals realize their constitutional rights to counsel and due process.

Make the Students Work on Foreign Cases!

To deal with all of these problems, the U.S. should support foreigners who want to do this work instead of hassling them as is the current practice. In fact, the U.S. should encourage them to focus their legal efforts on non-national defendants since that is an area of pressing concern and international obligation under the Vienna Convention. By allowing the students to practice in this way, the U.S. is taking a step at carrying out its obligation in the LaGrand case of preventing people from being executed when they have not been allowed to exercise their legal rights.

As for the Ms Maw and her case against Louisiana? She has commented that if she loses and is prevented from sitting for the bar exam, she will simply move to Mississippi. No prohibitions on foreigners practicing law exist there.

And, of course, lawyers defending Death Row inmates have plenty of work to do.

A federal magistrate judge recent ruled that the way inmates are treated at the Parchman prison, deep in the heart of the Mississippi Delta, constitutes cruel and unusual punishment in violation of he Eighth Amendment.

In essence, the judge ruled that life on Mississippi’s death row is so harsh and disgusting that inmates are being driven insane as a result of their confinement. A few of the conditions he noted include extremes of heat and humidity, a “grossly” unsanitary environment, vermin, arbitrary and punitive discipline policies, grossly malfunctioning toilets, and mosquito infestations. An expert in thermoregulation who volunteers for the organization Doctors of the World said that the heat in the death row cells was “inhuman”.

Given the situation here, don’t we need Ms. Maw and her friends from less bloodthirsty lands to help us reach real international standards of justice?

NOAH LEAVITT, an attorney, has practiced human rights law in numerous international and domestic settings, including working with German legal team on the LaGrand case. He can be contacted at nsleavitt@hotmail.com.

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