Proposed Legislation Providing Consular Access Holds Lives in the Balance

Tuesday, Senator Patrick Leahy (D-VT) introduced the Consular Notification Compliance Act, a long-awaited bill aimed at protecting the consular access rights of foreign nationals in U.S. custody who are charged or convicted of capital crimes. The act provides for judicial review of alleged violations of Article 36 of the Vienna Convention on Consular Relations ("Vienna Convention") an international treaty the United States entered requiring foreign nationals detained to be notified "without delay" of their right to communicate with consular officers of their home country.

In 2008, the U.S. Supreme Court held that the federal judiciary could not remedy violations of the Vienna Convention without implementing legislation from Congress. Senator Leahy's legislation aims to rectify this situation, providing for federal judicial review in capital cases where consular access violations are alleged. A judge could order a new trial or resentencing if the violation is determined to have prejudiced the criminal conviction or sentence.

Passage of this legislation will signal to the other Vienna Convention signatory countries that the U.S. intends to honor its international obligations, which in turn will encourage those countries to provide consular access to the more than 2,500 U.S. citizens annually who may find themselves detained abroad, including our men and women in uniform. For American citizens, this is essential to securing their safety when living, working and traveling abroad.

Consular access also enhances the truth-seeking function at the heart of American justice, and provides an indispensable protection for foreign nationals who are unfamiliar with the U.S. criminal justice system. "Mandatory Justice: The Death Penalty Revisited," the 2005 report (PDF) of The Constitution Project's Death Penalty Committee -- a bipartisan committee comprising supporters and opponents of the death penalty -- concluded that "the policies underlying the [Vienna Convention] are similar to those underlying the right to counsel guaranteed by the United States Constitution." The diverse committee thus called on all jurisdictions to fully comply with the Vienna Convention.

The Consular Notification Compliance Act has significant implications for the many foreign nationals currently on death row, such as Humberto Leal Garcia, a Mexican national who is scheduled for execution by the state of Texas in less than a month. Mr. Leal was never told that he had a right to contact the Mexican consulate for legal assistance. If the legislation passes, it would give Mr. Leal the opportunity to petition a federal court to review his case and, if appropriate, order a new trial or sentencing hearing. Unfortunately, it is unlikely that the act will come up for a vote in the Senate or House before Mr. Leal's July 7th execution date, so it will be up to Texas Gov. Rick Perry to grant Mr. Leal a reprieve pending a vote on the proposed bill.

Given the life and death stakes, a diverse group of former military officials, diplomats, judges and prosecutors have petitioned Governor Perry to hold off on executing Mr. Leal until the legislation is considered. This week, attorneys for Mr. Leal will file a federal habeas petition and a motion for stay of execution in the federal district court, arguing that Mr. Leal has a due process right to remain alive so that he can benefit from the legislative remedy contained in the Consular Notification Compliance Act. Now, the whole world will watch to see if Texas, and the United States, will honor the rights promised by the Vienna Convention.

By Virginia Sloan, President of The Constitution Project, and Christopher Durocher, Government Affairs Counsel for The Constitution Project.