In mid-June, at the invitation of the Inter-American Court on Human Rights, Farrell flew to San Jose, Costa Rica, to testify in support of an amicus brief submitted by Death Penalty Focus in a dispute between Mexico and the United States on the issue of consular notification in death penalty cases when the defendant is an extranational. What follows is a description of this trip and Mike's address to the Inter-American Court.
"Death Penalty Focus was asked by the Mexican Government to consider filing an amicus (friend of the court) brief supporting their request of the Inter-American Court for an advisory ruling on the issue of the right to consular contact, as spelled out in Article 36 of the Vienna Convention on Consular Relations. It springs from cases wherein extranationals are detained, arrested and/or convicted of crime. Mexico's position is that Article 36's articulation of a right to consult the ambassador or consul of one's home country (or Sending State, as they call it) "without delay" when detained, is an integral part of what we know as "due process." Thus, when someone is arrested, charged, convicted and sentenced (to death, in some cases) without ever having been notified of his right to consult with the Consul of his country, it is a violation of his rights and should be seen as a legal error which would obviate the process, reverse the conviction or return the case to the status quo at the time of initial detention.
This arises from the fact that there are over 30 Mexican nationals on death row in various states. A famous case, relatively recent, is that of Angel Breard, a Paraguayan national, who was executed in Viriginia despite the World Court's ruling that the U.S. Government should stop the execution and investigate the abrogation of his rights under the Vienna Convention.
As you probably recall, the Breard execution caused a flap (as it should have). Madeleine Albright spoke publicly in favor of halting the execution on the basis of her desire to ensure the safety of American citizens' rights when traveling abroad (the entire point of Article 36). The Justice Department said they shouldn't, or couldn't, intervene. (In fact, Albright signed off on a letter to the Supreme Court approving of the execution, I have heard, so her public position was a political one.) Anyway, Breard was killed. The next week a Honduran was killed despite the President of Honduras having called the Governor of Arizona to ask for more time. Truly lousy and arrogant stuff.
In the dace of all this, Mexica decided to make this move and hoped for support. We agreed to file an amicus brief and were then invited to come and present testimony to the Court. Steve Rohde, one of our board members and a Constitutional lawyer, went with me.
It was great. Testimony began with Mexico arguing its position, then El Salvador, Honduras, Guatemala, Costa Rica, The Dominican Republic and Paraguay all had official delegations supporting the proposition. Canada sent an observer. The only opposition came from the U.S. Govt. A delegation of credentialed people from the State Dept. told the Court:
it had no jurisdiction
that the Vienna Convention was not a human rights treaty
that Article 36 was only meant to apply to governments, not people, etc, etc.
Then the non-governmental organizations testified. This went on over two days.
Amnesty, HRW, the Inter-American Commission on Human Rights, DPF, the Minnesota Advocates for Human Rights, a professor from the Intl. Human Rights Law Inst. of DePaul University, two other professors of law, three public defenders from Ohio and a former judge of the Inter-American Court all testified in support. Without an ounce of objectivity I can claim that we decimated the U.S. position.
Seven judges from all over Latin America presided, sitting in full robes at the end of a room in a large colonial building (fashioned, ironically, after the White House) complete with ceiling fans and the Costa Rican breeze blowing through. Quite an experience. Instantaneous translation was available for anyone who did not speak Spanish - and for the others when English-speakers were testifying.
Here's what I had to say:
Address to the Inter-American Court of Human Rights, San Jose, Costa Rica, June 12 and 13, 1998
If it please the Court -
My name is Mike Farrell and I first wish to apologize for my inability to address this honorably Court in Spanish. Next, I would like to extend my appreciation for this opportunity to address the Inter-American Court on Human Rights. While not an attorney at law, I am president of the board of directors of Death Penalty Focus of California and co-chair of Human Rights Watch in California, two organizations based in the United States which represent the view of great numbers of citizens of that country and many more across the world who believe that given the options now available to those in authority, and given our own Supreme Court's recognition of the "evolutionary changes that mark the progress of a maturing society," the death penalty is no longer an appropriate sanction in today's world.
We understand, however, that the law of the land in our country, as currently read by the majority of those now sitting on the U.S. Supreme Court, is willing to suspend the Constitutionally guaranteed right to life under certain limited circumstances. While we believe that fact will change in time and are working toward that end, we are committed to the view that this current practice, if it is to be allowed at all, must proceed only under the most intense scrutiny and strictly within the narrowest of guidelines, which themselves must be contactly re-examined and scrupulously maintained.
It is in that context that we appear here today to present an amicus brief to the Court on the issue at hand.
Death Penalty Focus of California joins with the American Bar Association and the United Nations Commission on Human Rights in calling for an immediate moratorium on the death penalty with the view that an objective examination of death penalty practices in the United States exposes them as racist, targeting the poor and entrapping the mentally ill, the retarded and the innocent, thus falling below internationally accepted standards and therefore destructive of human dignity and contrary to the progressive development of human rights.
To the point at issue in this august Court, I would like to suggest that the abrogation of Vienna Convention obligations on the part of state and/or federal authorities in the United States is part of a larger issue that I hope will somehow be taken into consideration here. The context in which these lapses occur is attitudinal, in significant part, and is reflective of an arrogance of power that permeates much of the strata of authority in our country, both appointed and elected. This arrogance is made manifest by the effect of both race prejudice and political pressure in pertinent areas.
In a meeting last year with members of our organization, Bacre Waly N'Diaye, the U.N. Special Rapporteur on Summary, Extrajudicial and Arbitrary executions, reflected on the ignorance he found in the ranks of U.S. police and judicial authorities with regard to their obligations under international law. Further, he indicated that when these obligations were pointed out, they were dismissed as being insignificant. His subsequent findings are available to this Court in the report of the U.N. Commission on Human Rights issued this year.
In July of 1996, the International Commission of Jurists issued a report saying death sentences in the United States were arbitrary and weighted against people of color. The ICJ report said that obligations assumed by Washington under international human rights and anti-discrimination accords were largely unfulfilled.
Secretary General Adama Dieng said the report, "provides a disturbing account of the difficulties involved - even for a country which is regarded by many as the world's leading democracy and protector of basic individual rights and freedoms - in ensuring (that) the implementation of the death penalty is in accordance with accepted international norms."
The ICJ report provided figures showing that 40% of those executed in the U.S. between 1973 and 1995 were African-American. Overall, it said, 44% of the U.S. prison population was black, though African-Americans constitute only 6% of the total population of the United States.
These findings of the International Commission of Jurists have been underscored by a new study, released last week by Professor David Baldus of the University of Iowa School of Law. It is entitled, "The Death Penalty in Black and White: Who Lives, Who Dies, Who Decides," and will be published by the prestigious Cornell University Law Review this fall. (I have a copy of a letter from the chair of the Congressional Black Caucus, Congressperson Maxine Waters, speaking to this report, which I will gladly make available to the Court.)
To the second point, the International Commission of Jurists was particularly disturbed by the influence of electoral politics on judges and prosecutors. In many states, it indicated, district attorneys, or prosecutors, were "elected quite often on the basis of their performance or promise of rigorously seeking out the death penalty." Further, the report "has found that among elected judges, those who covet higher office - or those who merely wish to retain their status as judges - must constantly proclaim their fealty to the death penalty. ..." And it concludes, "The mission finds that the prospect of elected judges bending to political pressures in capital punishment cases is both real as well as dangerous to the principle of 'fair and impartial' tribunals."
The political nature of death penalty prosecution, then, targeting as it does the weakest and most despised, requires the protection of every right available to level the playing field - to remedy the disadvantage inherent in special categories of the accused.
It is, I suggest, the influence of the above pressures, unremarked in law and often less than readily visible to the casual observer, that must be seen to contribute to the unwillingness of those in authority in the United States to grant consular access to an extranational accused of serious crime. Domestic political pressure to be seen as being "tough on crime" and an arrogant - and often racist - assumption that 'our law is the only one that matters' lie at the heart of this problem. It is for this reason that we at Death Penalty Focus ask for the Court's condemnation of this serious failure to comply with international obligations."
I then turned the microphone over to Steve, who spoke to the legal specifics and knocked the U.S. position out of the box.
It was great fun!