Lessons from Avena: The Inadequacy of Clemency and Judicial Proceedings for Violations of the Vienna Convention on Consular Relations

The vindication of rights guaranteed by the Constitution has never been made to turn on the unreviewable discretion of an executive official or administrative tribunal. (1) Applying the procedural default rule to article 36 claims is not only in direct violation of the Vienna Convention, but it is also manifestly unfair. (2) TABLE OF CONTENTS I. INTRODUCTION II. THE VIENNA CONVENTION ON CONSULAR RELATIONS AND CAPITAL CASES III. INTERPRETATION OF THE CONVENTION: THE INTERNATIONAL COURT OF JUSTICE IV. WHY IS CLEMENCY INADEQUATE TO CONSIDER THE EFFECT OF VCCR VIOLATIONS? V. WHY IS THE CURRENT JUDICIAL PROCESS INADEQUATE TO CONSIDER THE EFFECT OF VCCR VIOLATIONS? VI. HOW TO BRING THE UNITED STATES INTO COMPLIANCE WITH THE TREATY: JUDICIAL, EXECUTIVE, AND LEGISLATIVE SOLUTIONS VII. CONCLUSION I. INTRODUCTION There are presently 118 death row inmates in the United States who are citizens of other countries. (3) They represent 31 different nationalities and are incarcerated in 16 states and a federal penitentiary. (4) It is likely that most of the 118 death row inmates had a right to be told that they could contact the consulate of their home country pursuant to a multilateral treaty, the Vienna Convention on Consular Relations (VCCR). (5) It is also likely that their consular notification rights were violated and that the consulates were unaware that one of their citizens was charged with a serious offense. (6) Many of these individuals have argued in court and in clemency that the violation of their consular notification right under the VCCR adversely affected the fairness of the criminal proceedings. (7) The capital cases involving foreign nationals and the consular notification treaty bring into focus the troubling confluence of the illusory nature of clemency and the limitations of federal habeas corpus. The inadequacy of post-conviction proceedings in the United States became acutely apparent when the violations of the VCCR were litigated in the International Court of Justice (ICJ) in two recent cases. This essay explores why both clemency and the legal process fail to satisfy the treaty's requirements for the consular notification right. Clemency understandably fails to provide the protection needed, should not be relied upon for any guaranteed right, and should not be significantly revised in an effort to improve compliance with the VCCR. The legal process, however, inexcusably fails to provide adequate protection for the right, should be relied upon to provide a forum to prevent a miscarriage of justice, and should be reformed to meet this need. Legal reforms are most likely to occur either through judicial decisions or through legislative action, although executive action is also an avenue. The possibility of the United States Supreme Court resolving the compliance issue in a case in which it has recently granted certiorari is discussed. In addition, a recent Presidential memorandum that has surfaced in the case before the Supreme Court and that directs compliance with the Avena decision is described. Both judicial and executive means of compliance with the treaty obligation are desirable and complementary to each other and to legislative reform. This article suggests that, in addition to any judicial or executive measures, legislative action is also needed. Congress should take the initiative to pass an amendment to the federal habeas corpus statute that would permit a hearing when required by a treaty or other law even when the issue would otherwise be barred under habeas rules. As presently conducted, there is too great a likelihood that a VCCR claim will not be heard in a U.S. court, in violation of the treaty. There is an urgent need for legal reform, and legislative reform can provide the most comprehensive approach. II. THE VIENNA CONVENTION ON CONSULAR RELATIONS AND CAPITAL CASES The Vienna Convention on Consular Relations (VCCR) is not a recent treaty. …