Foreigners on America's Death Rows: The Legal Combat Over Access to a Consul by John Quigley

Abstract

Reviewed by: Foreigners on America's Death Rows: The Legal Combat Over Access to a Consul by John Quigley Sandra Babcock (bio) John Quigley, Foreigners on America's Death Rows: The Legal Combat Over Access to a Consul (Cambridge, 2018), ISBN 9781108428231, 282 pages. Had it not been for the persistence of capital punishment in the United States, Article 36 of the Vienna Convention on Consular Relations (VCCR) would likely have remained an obscure treaty provision, little known and honored in the breach throughout the country. After all, the treaty generated little controversy in the two decades after the US Senate gave its advice and consent to ratification. Dedicated largely to the functions and immunities of consular posts, the treaty contains only a few provisions bearing on the rights of detained individuals. Article 36, however, provides that detained foreign nationals have the right to communicate with consular officials and to have consular posts notified of their detention—and further stipulates that the authorities must advise detained nationals of those rights "without delay."1 As of 1993, no US scholars—with the sole exception of Luke T. Lee2—had written about the implementation of Article 36 with respect to detained foreign nationals.3 In the early 1990s, a series of capital cases changed all that. In Foreigners on America's Death Rows, John Quigley has meticulously documented the slow awakening of US-based litigators to widespread violations of Article 36 in the cases of foreign nationals sentenced to death in the United States. Written in a style designed to be accessible to practitioners unfamiliar with international law, the book provides an exhaustive analysis of the diplomatic debates over the text of Article 36, the intent of the drafters, and the often-flawed analysis of the text by US courts. Professor Quigley has actively participated in litigation in both domestic and international courts over violations of Article 36. The book effectively combines scholarly research with the insights he has gained over decades of engagement in the cases of foreign nationals on death row. It is essential reading for any practitioner, scholar, or jurist grappling with the interpretation of Article 36. If the US Supreme Court ever grants certiorari to decide whether individuals have enforceable rights under the treaty (a question it has thrice refused to address directly), judicial clerks will be reaching for Foreigners on America's Death Rows to inform their bench memos. Along with Professor Quigley and a handful of other lawyers, I have been litigating violations of the Vienna Convention in capital cases for over two [End Page 1003] decades. In 1992, I became the first lawyer to litigate an Article 36 violation in a capital case. I was counsel to the Government of Mexico in Avena and Other Nationals (Mexico. v. United States) in the International Court of Justice4 and have been involved in the US Supreme Court cases of Medellín v. Texas5 and Sanchez-Llamas v. Oregon6 as well as dozens of other cases in state courts—many of which are discussed in Foreigners on America's Death Rows. I thought I would have little to learn from Quigley's text, but I was wrong. The brilliance of Foreigners on America's Death Rows derives from Quigley's synthesis of diplomatic archives and legal records to support his argument that the rights enshrined in Article 36 are integral to the fairness of criminal prosecutions. As I read through it, I kept wishing that Professor Quigley had published the text before the litigation in Avena, and before the US courts adopted a series of poorly reasoned decisions denying individual remedies for violations of consular rights. The material on which he based much of the book did not yet exist, but it is hard for the informed reader to escape the sense of opportunities lost. Part I of Foreigners on America's Death Rows grounds the reader in the longstanding custom of consular assistance and its eventual codification into Article 36. The first chapter describes the evolution of consular practice in the United States under customary law. Focusing on intervention by US consular staff in support of Americans detained abroad, Quigley uses historical examples...