Within a year of the 1999 ICJ Provisional measures, the State Department’s
Senior Coordinator for Consular Notification had published and distributed
44,000 instruction booklets and 300,000 cards to local arresting officers,
prosecutors, and judicial authorities as well as libraries, criminal defense
lawyers and the general public. The Department placed the materials on
the Internet and used them in training seminars.
Twelve states with large number of foreign nationals and those
on the Mexican border received special attention. [38]
The Arizona Attorney –General sent
to “county attorneys a memorandum advising them
of the requirements of the Vienna Convention and providing excerpts from
and information about the Department of State's booklet, and has also
written to the Chief Justice of the Arizona Supreme Court suggesting a
change in the rules of the courts of Arizona that would help ensure compliance.”
[39] The Arizona Department of Corrections
provided inmates with information about consular officers and new notification
procedures.
California
adopted a law requiring law enforcement agencies to ensure that policy
or procedure and training manuals incorporate language based on the provisions
of the 1963 Vienna Convention on Consular Relations. The bill also requires
every peace officer, upon the arrest and booking or detaining of a foreign
national, to advise the foreign national that he or she has a right to
communicate with a consular representative. Notification of consular rights
must take place within two hours of the detention. [40]
Cook County, Illinois and several
other jurisdictions adopted similar measures under court order. Human
rights advocates pressed the U.S. Justice Department to bring the lawsuits
against local governments that avoided the 11th Amendment barrier
to suits by foreign states. Federal
courts had allowed the national government to enforce U.S. treaty commitments
against an Illinois agency that diverted international waters from Lake
Erie and against a Virginia tax that violated the Vienna Convention on
Diplomatic Relations.
[41]
Oklahoma
Governor Frank Keating approved the execution of an Iraqi national, but
briefly delayed the execution of Gerardo Valdez Maltos to consider objections
by Mexico. When he lifted the stay, Keating explained his reasoning in
a letter to Mexican President Vicente Fox. The
Court of Criminal Appeals in Oklahoma then blocked the Valdez execution
in order to review a consular notice claim and ultimately ordered a new
sentencing hearing on other grounds.
Following her March 2002 keynote address to the American Society
of International Law, Justice Sandra Day O'Connor responded to a question
from Professor Quigley by forcefully noting her familiarity with the ICJ’s
LaGrand decision. The former Arizona legislator stressed
the critical importance of "transjudicialism," noting her September
11 meeting with Indian judges in New Delhi and the briefs received at
the Supreme Court from U.S. diplomats urging the justices to consider
international practice when deciding death penalty appeals involving the
mentally retarded.
[42]
 |
Although Justice O’Connor delighted abolitionists with her June 2002 votes against the death penalty in cases on mental retardation and Arizona’s sentencing procedures, their hopes for enforcement of the Vienna Convention were quickly dashed. The Supreme Court routinely declined to review consular claims without any dissenting opinions. [43] Lower courts have rarely even considered the ICJ LaGrand decisions of 1999 and 2001. Between March 1999 and September 2002 the number of foreign nationals on death row in thirty-three states had increased to 121, and six more were executed—including three Mexicans. [44] Texas Governor George Bush rejected appeals from Secretary of State Albright on behalf of a Canadian national, insisting that murderers could not escape capital punishment based on foreign citizenship. When he became President, Bush proclaimed a special relationship with Mexico, but the new Republican administration did not oppose the August 14, 2002 execution of Mexico’s Javier Suarez Medina in Texas. Court briefs and letters from 16 nations had urged clemency. Mexican President Vicente Fox promptly cancelled a ranch meeting with President Bush to protest the execution. Ten days later Texas Governor Rick Perry visited Mexico and failed both in his efforts to meet Fox as well as in winning San Antonio’s bid to host the 2007 Pan-American games. Delegates representing the 42 nations that make up the Pan American Sports Organization awarded the 2007 Games to Rio de Janeiro. [45] |
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In
July 2002 Governor Hull convened a special three-day session of
the Arizona legislature to revise the death penalty sentencing procedures
invalidated by the U.S. Supreme Court.
The lawmakers overwhelmingly approved procedures empowering
jurors to impose the death penalty, allowing alternate jurors in
cases of deadlock, and removing automatic review by the state Supreme
Court. The legislators rejected a proposed moratorium or new limits
on execution of juveniles. The Arizona Republic
announced that it no longer supported the death penalty, despite
its prior endorsement of the LaGrand executions.
Press accounts make no mention of any legislative debate
on the Vienna Convention requirement of consular notice or for responding
to the ICJ rulings in LaGrand. Governor Hull promptly signed the emergency
statute so the death penalty could be imposed on capital defendants
awaiting trial. [46] As
a result of term limits, Hull could not seek reelection in 2002.
The Democratic Attorney General Janet Napolitano who had actively
supported the LaGrand and other executions won her party's primary
campaign for governor against candidates who opposed the death penalty.
The victorious Republican gubernatorial candidate, former
U.S. Representative Matt Salmon attacked Napolitano for appointing
a Death Penalty Study Commission that recommended a statewide referendum
on capital punishment. “In the most recent statewide poll on the
death penalty, conducted in April 2001, 81 percent of registered
voters supported keeping capital punishment, 14 percent supported
eliminating it and 5 percent were undecided." [47]
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