An American Dilemma International Law, Crime, and Politics David Schultz, Professor, Series Editor Hamline University, St. Paul, MN, USA Published by Palgrave Macmillan Preventing Ideological Violence: Communities, Police and Case Studies of “Success” Edited by P. Daniel Silk, Basia Spalek, and Mary O’Rawe Law and Disciplinarity: Thinking beyond Borders Edited by Robert J. Beck An American Dilemma: International Law, Capital Punishment, and Federalism By Mary Welek Atwell An American Dilemma International Law, Capital Punishment, and Federalism Mary Welek Atwell ANAMERICANDILEMMA Copyright © Mary Welek Atwell, 2015. Softcover reprint of the hardcover 1st edition 2015 978-1-137-27036-8 All rights reserved. First published in 2015 by PALGRAVE MACMILLAN® in the United States—a division of St. Martin’s Press LLC, 175 Fifth Avenue, New York, NY 10010. Where this book is distributed in the UK, Europe and the rest of the world, this is by Palgrave Macmillan, a division of Macmillan Publishers Limited, registered in England, company number 785998, of Houndmills, Basingstoke, Hampshire RG21 6XS. Palgrave Macmillan is the global academic imprint of the above companies and has companies and representatives throughout the world. Palgrave® and Macmillan® are registered trademarks in the United States, the United Kingdom, Europe and other countries. ISBN 978-1-349-66999-8 ISBN 978-1-137-27037-5 (eBook) DOI 10.1007/978-1-137-27037-5 L ibrary of Congress Cataloging-in-Publication Data Atwell, Mary Welek, 1943– author. AAn American dilemma : international law, capital punishment, and ffeederalism / by Mary Welek Atwell. pages cm Includes bibliographical references and index. 1. Capital punishment—United States. 2. Federal government— United States. 3. International law. I. Title. KF9227.C2A98 2015 345.73(cid:25)0773—dc23 2014049911 A catalogue record of the book is available from the British Library. Design by Newgen Knowledge Works (P) Ltd., Chennai, India. First edition: June 2015 10 9 8 7 6 5 4 3 2 1 For David This page intentionally left blank Contents 1 Introduction 1 2 American Exceptionalism 9 3 The Legal Framework: Capital Punishment Law and the Rights of Foreign Nationals 23 4 The Execution of a Foreign National: The Case of Angel Breard 41 5 The Execution of a Foreign National: The Case of Joseph Stanley Faulder 65 6 The Execution of Two Foreign Nationals: The Case of Karl and Walter LaGrand 81 7 A vena: Mexico v. United States and the Case of Jose Medellin 97 8 Sovereignty and Federalism: Texas as a Case Study 121 9 The Execution of a Foreign National: Humberto Leal Garcia and After 135 Notes 155 Bibliography 177 Index 187 1 Introduction O n July 7, 2011, Humberto Leal Garcia was executed in Texas. Given that Texas leads the United States in the number of executions, there is little that is remarkable about Leal’s death—except that as he was a Mexican national, his execution drew attention and comment from the international community, from diplomats and senators, and from the United Nations High Commissioner for Human Rights. Leal was tried and sentenced to death without being informed of his right to confer with the consulate of his country, a right the United States promised to foreign nationals when it signed the Vienna Convention on Consular Relations over 40 years ago. American citizens traveling abroad frequently rely on the provisions of the Vienna Convention to provide access to advice and assistance if they run afoul of local authorities. Yet, resisting both international and domestic pressure to forego the execution of foreign nationals who were not informed of their rights is only a recent example of how American policies regarding capital punishment put it at odds with much of the world. The United States stands virtually alone among developed demo- cratic countries in continuing to permit the use of capital punishment. The nations of Europe, the former British Commonwealth countries, the nations created from the former Soviet Union, most of Central and South America, and many African nations have abolished the death penalty—either completely or for offenses less serious than treason or war crimes (ordinary crimes). Meanwhile, the United States finds itself in the company of retentionist countries, including Afghanistan, China, the Democratic Republic of the Congo, Iran, North Korea, Pakistan, Saudi Arabia, and Zimbabwe, whose traditions and records on human rights are less than admirable. As this book will argue, asserting a leadership role in the international endeavor to advance human rights at the same time persisting in the use of capital punish- ment places the United States in a most contradictory position. As much of the rest of the world trends toward abolition, the United 2 An American Dilemma States must engage in fancy footwork to justify its ongoing use of the death penalty, especially in the face of international treaties and rulings from the International Court of Justice (ICJ). America finds itself an outlier, deviant in an atmosphere where capital punishment is viewed as a human rights issue, not simply one among many acceptable options in dealing with crime. However, even domestically within the United States, both the popularity and the use of capital punishment have declined from their high points in the 1990s. Thirty-five people were executed in 2014, compared to 98 executions in 1999.1 In 2013, nine states were responsible for 39 executions. In 2014, all executions occurred in only seven states. It is clear that capital punishment is not a national prac- tice in the United States, but rather a much more local phenomenon. A report from the Death Penalty Information Center released in 2013 found that only 2 percent of the counties in the nation were responsi- ble for all the death sentences that year. Conversely, 85 pe rcent of the counties in the United States have not had a single case that resulted in an execution since 1976.2 The number of death sentences also continued a downward trend, from 315 in 1996 to 79 in 2013. Reduced public support for c apital punishment became apparent through several developments. In the Gallup Poll, which asks only a global question about support for the death penalty, 61 percent of those surveyed responded positively. This percentage had declined from 67 in 2000 to 80 in 1994. More significantly, a CNN poll showed that when offered alternatives to capital punishment, 50 percent chose a life sentence.3 In more con- crete developments, in 2013, Maryland became the eighteenth state to abolish the death penalty, and the Governor of Oregon declared an end to executions during his term. Since 2007, six states—New Jersey, New York, New Mexico, Illinois, Connecticut, and Maryland—have ended their use of the death penalty. Observers advance a number of explanations for this lessened sup- port. Some cite the publicity surrounding exonerations of innocent people condemned to death, others cite the availability of life with- out parole as an alternative, while some point out the cost of using capital punishment during a time when state budgets are under strain. Perhaps the most vivid demonstration of problems with capital punish- ment has come with a number of botched executions during the last two years. As European manufacturers have stopped supplying drugs for use in lethal injections, states have improvised with untested and unregulated mixtures. In Ohio and in Oklahoma, inmates have suffered lingering and obviously painful deaths.