Document Type

Article

Disciplines

International Law

Abstract

This article takes the view that the parties best suited to secure the protection of foreign incarcerated defendants under the Vienna Convention are not the defendants themselves, but rather their home countries. It is widely believed that the Vienna Convention, unlike the United Nations ("UN") documents at issue in the Medellin decision, is self-executing. 4 It is thus broadly viewed as enforceable in US courts. Nevertheless, due to the intricacies of the doctrine of self-execution, sovereign states are better placed than the individual prisoners themselves to secure the protections that the Vienna Convention provides to prisoners. 5 Furthermore, even sovereign states will not be able to obtain the Vienna Convention's protections for the most unfortunate prisoners-those whose initial criminal prosecutions have already run their full course and who have exhausted all linear appeals. However, in each jurisdiction where such a foreign defendant has been denied the protections of the Vienna Convention, this article provides the home country of such defendant with a means of assuring that no further denials of that sort take place.

This article posits the use of an "Article 36 Injunction," named for the provision of the Vienna Convention that requires the consular notice at issue in Medellin. This article will explain how and why a prisoner's home state can obtain a federal injunction against the authorities of any US jurisdiction that has denied Article 36 protections, thus prohibiting further denial of protections under the Convention.16 Such an injunction will avoid the restrictions of the Eleventh Amendment, and can thus have the broad, indefinite, and prospective effect of guaranteeing future compliance with the Vienna Convention in each enjoined jurisdiction.

A disadvantage of this approach is that it does not apply to current prisoners (including those on death row) who, having experienced their full trials and all linear appeals, have failed to raise the Vienna Convention issue. 7 Prospective application, which is necessary to avoid the effects of the Eleventh Amendment, precludes the availability of the proffered injunction for these prisoners. The major focus of this article, however, is the continuing availability of international law, namely, the Vienna Convention protections under Article 36. The approach advanced in this article should be sufficiently useful in a broad variety of prospective cases, such that its inability to assist in these especially unfortunate cases should not detract from the significance of the approach.

In order to fully appreciate the basis of the Article 36 Injunction proposed in this article, it is necessary to be familiar with the Vienna Convention as a whole. Accordingly, Part I of this article begins with a description of the text and purposes of the Vienna Convention as an entire document. After an overview of the whole treaty, more particular attention is given to Article 36 and its relationship to the treaty in general. Next, Part II of this article details the structure of the Medellin Maze. It will consider, in turn, each possible strategy that has been attempted by a foreign prisoner or home country to secure Article 36 protections, and each strategy that could be attempted in light of judicial and academic discussions up to this point. But even though there have been and could be many such strategies, the impact of the Medellin case, as well as other lines of federal case law, have erected substantial barriers to each of them. It will, thus, be shown that each of these strategies leads to a Dead End in the Medellin Maze.

Some of these barriers have been clearly established by the Supreme Court or other federal courts in Medellin and other cases. These Dead Ends are impregnable. Other possible Dead Ends have not yet been definitively created as such by the Supreme Court, and strategies to circumvent them may technically remain available for prisoners, home countries, and others mindful of their interests. With respect to these potential strategies, this article takes the position that there are substantial, well-developed areas of federal constitutional law that are also likely to result in the erection of Dead Ends. This article does not denominate these strategies as Dead Ends out of a conviction that they are legally invalid. Rather, this article calls these strategies Dead Ends based on a strong suspicion that the federal courts (and the Supreme Court in particular) will erect doctrinal barriers against them in the future. This would be the case even if what academics would consider the "best" view of the relevant doctrines would not, in fact, result in a Dead End.

This article then returns to the Vienna Convention in Part I1. This time, the review focuses on the precise provisions and formulations from the Vienna Convention's text that lay the groundwork for the Article 36 Injunction. Finally, Part IV advocates use of the Injunction, and demonstrates why its issuance would be consistent with the Eleventh Amendment.

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