From Breard to Atkins to Malvo: Legal Incompetency and Human Rights Norms on the Fringes of the Death Penalty

In Republic of Paraguay v. Allen,1 the LaGrand Case,2 and Avena and Other Mexican Nationals,2 nations pressed their claims in U.S. courts and the World Court that the United States is violating its treaty obligations and human rights obligations under customary international law by failing to provide consular notice before imposing the death penalty on their nationals. These claims proceeded while three seemingly unrelated, but significant, developments occurred in United States Supreme Court jurisprudence with potential importance for future cases concerning the lack of consular notification. The first such development is the 2003 Supreme Court decision in Atkins v. Virginia, in which the Court concluded that the execution of mentally retarded individuals is cruel and unusual punishment prohibited by the Eighth Amendment.4 The second development was the growing receptiveness and acceptance by a majority of the Court of international law norms in interpretation of the Bill of Rights, most notably and recently in Lawrence v. Texas.5 Even more recently, a jury in Virginia refused to impose the death penalty on Lee Malvo, although Virginia is one of fifteen states which still allow the death penalty for juveniles between the ages of sixteen and eighteen.6 The United States is one of only two countries (the other being Somalia) which has not ratified the Convention on the Rights of the Child,7 which prohibits imposition of the death penalty on anyone under the age of eighteen, and the constitutionality of the death penalty for juveniles is pending before the Court.8 Crucial to the Court's decision in Atkins was the Court's concern that mentally retarded defendants could not fully comprehend the process or the punishment in death penalty cases,9 and lacked the moral culpability of other perpetrators.10 Many of the same concerns are at the heart of the consular notice requirement. The jury verdict in the Malvo case suggests that growing public rejection of the death penalty for juveniles has outpaced the Court's decision-making, and that international norms prohibiting the death penalty for juveniles are more reflective of public opinion within the United States than either domestic legislation or the Court's decisions would suggest. Atkins and Lawrence provide an evident jurisprudential framework for abolition of the death penalty for juveniles, as well as renewed justification for Supreme Court consideration of the necessary remedy for the failure to provide consular notice. Finally, in light of international decisions binding on the United States indicating that the failure to provide consular notice violates fundamental notions of due process and necessitates judicial review, U.S. courts can no longer deny review and reconsideration of death penalty sentences obtained without the required consular notice. I. BEGINNING WITH BREARD The factual and procedural background of the Breard and Paraguay cases has never been fully delineated. This background continues to be important for several reasons, and merits a detailed examination. To date, these companion cases represent the fullest examination of the issue of consular notification in U.S. federal courts, including the Supreme Court. In addition, these early cases provide a comprehensive overview of every major legal issue related to providing or compelling consular notification. Angel Francisco Breard was a Paraguayan and Argentinian dual-national who was convicted, sentenced to the death penalty, and executed by the state of Virginia for the crimes of rape and murder.11 Although his conviction was obtained on sufficient evidence and he testified to committing the murder,12 the trial procedure was flawed. Breard was not provided with the opportunity to obtain consular assistance as required by treaties between the United States and Paraguay.13 Such assistance would have provided him with fundamental protections essential to due process because foreign consular officials ensure that their nationals are provided a fair process and that their nationals understand the mechanisms of the judicial process that they face. …