Friday, December 02, 2005

Is Life Imprisonment an "Unusual" Punishment?

For the last several years Mexico had certainly thought so. But on Tuesday, Mexico’s Supreme Court decided to lift a ban on extradition of persons who would be subject to life imprisonment, reversing an earlier 2001 decision that had found such extraditions violated the prohibition on “unusual penalties” in Article 22 of the Mexican Constitution. As a result of the 2001 decision, hundreds, if not thousands of fugitives had been able to avoid extradition because U.S. prosecutors could not give assurances that life imprisonment was off the table or were unwilling to press lesser charges that did not involve such a penalty. I find the Court’s decision to reverse its earlier ban interesting for international lawyers on no less than three levels.

First, it opens the door to resolving a nascent treaty dispute over whether Mexico could deny extradition of U.S. nationals on the basis of the potential life imprisonment sentence to be imposed. Under Article 1 of the 1978 U.S.-Mexico Extradition Treaty, Mexico agreed to extradite to the United States persons charged with 31 named offenses (e.g., murder, robbery, fraud) which are punishable by not less than one year in prison. Article 8 makes an exception, however, for capital punishment cases, such that Mexico would not have to extradite someone who would be subject to capital punishment, unless it receives assurances from the United States that the death penalty would not be imposed, or, if imposed, not executed. Those assurances, however, by their terms only extend to capital punishment cases, not life imprisonment. Separately, under Article 9, Mexico does not have to extradite its own nationals, provided it submits their case to its competent authorities for purposes of prosecution. Thus, even though Mexico could argue the treaty allowed it to decline extradition of its own nationals whether or not life imprisonment was at issue, it did not seem to have a textual claim for doing so for non-Mexican nationals, even if its Constitution required such a result. The Court’s recent decision, however, removes this problem and should ensure Mexico can more fully comply with the treaty.

Second, the fact that for four years Mexico did not extradite persons who faced possible life imprisonment, reminds us that the United States is not the only state to take a dualist stance on the relationship between international and domestic law. In the United States, the Supreme Court has made it clear that treaties cannot contradict the Constitution. Mexico’s treatment of the life imprisonment question suggests it takes a similar approach. Even though the Extradition treaty required Mexico to extradite non-nationals for life imprisonment offenses, such extraditions did not take place given the finding of a constitutional prohibition.

Finally, the decision could also suggest an easing of tensions in the longstanding dispute over the legality of various U.S. law enforcement activities vis-à-vis Mexico and Mexican nationals. Mexico’s earlier objections have been well publicized, from its outrage over the U.S. abduction of Dr. Alverez-Machain to its more recent efforts in the Avena case and elsewhere to obtain new trails for Mexican nationals on death row who had not received consular notification under Article 36 of the Vienna Convention on Consular Relations. Combined with President Bush’s earlier decision on the Avena case, Tuesday’s court decision suggests that conditions may now be more favorable to greater law enforcement cooperation between U.S. and Mexican officials.

I would be interested in whether readers have alternative perspectives on this issue as well as the underlying "why" question – why did the Court change its opinion after only 4 years? Was it influenced by the fact that its prior interpretation had put Mexico in breach of at least some of its treaty obligations? Could the reluctant shift in the U.S. position on consular notification and the death penalty have influenced the Mexican Supreme Court to soften its own stance? Or, could the court be responding to different pressures, namely the recently enacted State Department Appropriations Bill, P.L. 109-102. Section 583 of that Act prohibits (subject to waiver) certain financial assistance to any “country with which the United States has an extradition treaty and which government has notified the Department of State of its refusal to extradite to the United States any individual indicted for a criminal offense for which the maximum penalty is life imprisonment without the possibility of parole.” Congress clearly had Mexico in mind when it passed that law. So, I wonder how much Mexico’s Supreme Court had that bill in mind when it decided that life imprisonment isn’t such an “unusual" punishment after all.

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