Mexican standoff.

Mexican standoff.

Mexican standoff.

The law, lawyers, and the court.
Dec. 14 2005 5:09 PM

Mexican Standoff

The complex—and imbalanced—legalities of cross-border justice.

Mexico and the United States, while connected like hermanos siameses by one of the longest continuous land borders on the planet, are miles apart in terms of how they think about the rights of criminals—both foreign and domestic. These differences can be boiled down to a simple, almost shocking statement: The Mexican government believes that American criminals in Mexico have a right not to be killed—anywhere—while the U.S. government supports killing Mexican criminals who are in the U.S., even if they've been provided something less than their full range of legal protections. Recent high-court activity in both countries highlights this disparity and points to a continuing impasse in larger arenas. Unfortunately, this growing schism will likely complicate legal, diplomatic, trade, and even counterterrorism initiatives.

On Dec. 9, on the eve of International Human Rights Day, Mexico's President Vicente Fox formally celebrated his country's purging the last vestiges of capital punishment from its legal system. This celebration may have been a bit overblown, or at least late in the day, as Mexico has not actually executed anyone since 1961. But capital punishment was officially still on the books there until last Friday, when the government published changes to Mexico's Constitution, which now reads: "The death penalty, mutilation ... whipping, beating, and any form of torture ... are prohibited."


Since assuming office, Fox has wanted to be seen as a human rights defender. One of his preferred methods has been a systematic refusal to extradite anyone to the United States who may face the death penalty. He can even point to a bilateral treaty encouraging this stance. Fox has also fought the extradition of suspected prisoners who face life imprisonment without the possibility of parole.

But two weeks ago, in a little-noticed decision, Mexico's Supreme Court complicated that agenda. And made some American officials very, very happy. In a 6-5 decision, Mexico's highest court ruled that criminals facing life imprisonment without the possibility of parole in their home countries may now be extradited. This ruling overturned a 2001 decision that had gone exactly the other way.

To understand this change requires first recognizing that Mexico's Constitution regards imprisonment as a means of rehabilitating criminals, rather than punishing and deterring them. Its Article 18 in particular recognizes only "social readaptation" as the goal of doing time in a Mexican prison. This cheery, future-oriented approach readily distinguishes Mexico's system from the U.S.'s, which follows more of a "lock 'em up, then lock 'em up some more" philosophy.

The Mexican high court's reasoning in 2001 sought to comply with Mexico's ban on cruel and unusual punishment—particularly in instances where the suspect could be extradited to a death-penalty-loving nation. The majority essentially argued that by executing someone, or by eliminating the possibility of their ever leaving prison, the state cruelly interfered with the "readaptation" function required by Article 18. That ruling, unsurprisingly, led some American crime suspects to flee to Mexico to avoid punishment in the United States. And that ticked off American law enforcement officials.


Something changed between that 2001 decision and last week's—most notably an aggressive campaign by U.S. politicians to undo Mexico's extradition ban. Indeed, Southern California law enforcement officials, apparently untroubled by usurping the federal government's foreign-affairs power, took credit for the Mexican court's recent decision. "This is the culmination of three years' work by our office and many others," said a staffer for the L.A. County District Attorney.

Not to be left out, Congress also went to work to subvert Mexico's liberal, rehabilitation-based views on crime. In the days leading up to last week's decision, U.S. lawmakers were busy slashing foreign aid for any country refusing to extradite suspects who had committed certain types of crimes. Conservative journalists correctly deemed this "a warning to the Mexican government." And just before the high court's ruling, President Bush signed a massive foreign-aid bill and hinted at the possible cancellation of up to $40 million earmarked to Mexico in FY06.

Finally, the writing was on the border fence in late November, when Mexico's Consulate General announced that Raul Gomez-Garcia—accused of killing a Denver police officer—could be extradited to the United States. This was a big retreat from Mexico's position as recently as last June—when it had flatly refused to extradite Gomez-Garcia if the Denver DA planned to bring charges carrying either the death penalty or a life sentence without the possibility of parole.

Mexico is moving further away from President Fox's stance on the death penalty—a stance agreed upon, as it turns out, by just about the entire rest of the planet—and closer to the U.S.'s "punish or perish" jurisprudence. Are the courts there trying to appease the White House? Annoy Fox? Whatever the cause, something here is weirdly imbalanced.


The problem lies in the United States' own problematic track record with foreign nationals who find themselves in legal trouble here, particularly when such foreign nationals wind up on death row. The Mexican high-court decision shines a 50,000-watt searchlight on the fact that the United States frequently denies citizens of other countries—primarily Mexico—the right to access their consulates when facing legal problems in this country.

This right is clearly enshrined in binding international law, whether the White House likes it or not. Article 36 of the Vienna Convention on Consular Relations (or VCCR), ratified by the United States in 1969, provides that local law enforcement officials must notify all detained foreigners "without delay" of their right to have their consulate informed of their detention. This treaty further requires that the foreign consulate be informed of the arrest of one of their citizens. But American law enforcement officials frequently ignore these rights, and foreign criminal defendants find themselves facing jail, deportation, or worse without ever having had access to their consulate, which might have been able to obtain higher quality counsel than the overworked public defender otherwise assigned to their case.

Thus, Mexico, which abhors the death penalty, can count nearly half of the 118 foreign nationals on death rowin the United States as its own. And they're enojado about this, too. Over the last few years, the Mexican government has fileda slew of lawsuits in U.S. courts and international tribunals challenging the American failure to comply with the VCCR with regard to Mexican nationals. The number of these cases has grown so fast that the Fox administration has been forced to hire at least one full-time U.S.-based attorney to represent Mexico in Vienna Convention disputes alone.

On Dec. 10, 2004, the U.S. Supreme Court agreed to hear one of these disputes—that of Jose Medellin. The justices were asked to determine what effect the United States should give to a highly critical ruling by the International Court of Justice in The Hague. In the case of Medellin, and 50 other Mexican nationals housed on America's death rows, the ICJ found that the United States had violated the Vienna Convention by failing to inform Mexico of its arrests of foreign citizens. This failure, it ruled, grossly interfered with Mexico's ability to lend legal assistance to those facing the death penalty.


Oral argument in this case was heard last March,and the Supreme Court eventually sent Medellin back to the Texas state court system for further consideration of his claims. More recently, the United States has begun arguing that even if the Vienna Convention is individually enforceable, state courts may refuse to consider it due to procedural obstacles, such as the defendant's not raising convention claims in a lower-court argument.

Mexico's efforts to save its citizens have likewise been stepped up. This battle returned to the U.S. Supreme Court a few weeks ago, when the justices agreed to hear appeals from citizens of Mexico and Honduras on this issue. Stay tuned.

What emerges from all this is a tale in which, on the one hand, the United States undermines the rights of Mexicans and other noncitizens who find themselves in trouble here. And on the other hand, our government steadily pressures Mexico to compromise the rights of U.S. citizens who are suspected of crimes but now reside in Mexico—and thus ostensibly live there under the protection of the Mexican Constitution.

All this raises in turn the following questions: What happened to the White House known for its seething hatred of universal jurisdiction? Its scorn for the International Criminal Court? The White House that prides itself on working overtime to exempt U.S. officials from any criminal charges they may face overseas? Why the inconsistency?

This squabbling about the different treatment of a few (hundred) suspected criminals may seem a small pile of beans in the long list of international clashes. Yet it highlights a much broader moral and legal difference between the United States and its allies over the value of human life. This difference will inevitably interfere with long-term security efforts, such as the White House's "smart borders" anti-terrorism initiative. Why should Mexico help us police our borders when we won't help Mexicans who are in desperate straits talk to their embassies? The U.S.'s stance is hardly neighborly, and Mexico might be forgiven for being less than neighborly in return. Yet the Bush administration continues to act as though executing Mexicans will somehow slow the steady northbound traffic.

Vicente Fox, barred by law from running for re-election, recently began his last year in office, opening the door for a full-on campaign blitz by future would-be presidents. His likely successor, Felipe Calderón, has pledged to prioritize addressing cross-border immigration, as well as holding U.S. officials responsible for their part in stopping crime on the border and upholding the rights of Mexican citizens. But how will he do that if his neighbor to the north continues to apply a shocking double standard when it comes to the legal status of criminal defendants—a double standard as wide as the Rio Grande is long?