Washington, DC (June 28, 2006) -- The Supreme Court’s decision today in Sanchez-Llamas v. Oregon is no help to the hundreds of foreign nationals who find themselves subject to our criminal justice system every year, nor to the law enforcement officers who arrest them, nor the state and federal courts that sort out their cases.
The majority today “assumes without deciding” that if the Vienna Convention on Consular Relations provides any rights to foreign nationals in police custody, suppression of statements taken from them in violation of the treaty is not one of them. Worse, the majority refused to even suggest any appropriate remedies that lesser courts might consider to help ensure that future foreign nationals will be informed of their rights to consult with their country’s consulate. It is impossible to understand how a defendant’s right to support from his country’s diplomatic mission, which forms the cultural and political bridge between the defendant’s country and our own, can be guaranteed and exercised if the police and the prosecutor are not required to inform him of that right. A right without a remedy is an illusion.
As NACDL argued in its friend of the court brief, “The availability of suppression as a remedy for Article 36 violations will simultaneously increase compliance with the treaty’s provisions on consular notification and access and deter law enforcement officers from ignoring their obligations under the treaty. Allowing for the discretionary suppression of statements thus promotes good police practices which, in turn, advance the integrity of criminal proceedings.”
The majority glosses over the fact that the International Court of Justice (ICJ) called upon the United States only two years ago to determine whether the remedy of suppression would be appropriate in cases where the authorities violated their obligations under the Vienna Convention. The treaty itself provides that “the rights referred to in . . . this Article shall be exercised in conformity with the laws and regulations” of the signatory states, including the United States. The fact that President Bush in 2005 unilaterally withdrew from the optional protocol requiring disputes be decided by the ICJ is of no consequence. The Court could well have, and should have, recognized that the ICJ in effect gave a green light to application of our “entirely American” exclusionary rule in cases where lesser remedies would not suffice to restore the status quo.
Prof. Barbara Bergman is president of the National Association of Criminal Defense Lawyers. She teaches at the University of New Mexico School of Law in Albuquerque. NACDL filed an amicus curiae brief in Sanchez-Llamas v. Oregon. It is available on the association's Web site at http://www.nacdl.org/public.nsf/newsissues/amicus_attachments/$FILE/Sanchez-Llamas_v_Oregon.pdf
1. Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. 128, ¶127.
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