Death penalty proposal

[Sanford Levinson]

Carlow Vasquez writes:

>I wouldn't go so far as to say that the "the Clinton administration . . .
agreed that Virginia had no duty whatsoever to comply with the
international treaty."  The administration stressed that the states are
required to comply with the treaty and accordingly must inform arrested
persons of their right to consult with their consuls (which is what the
treaty expressly requires).  But the administration denied that Virginia's
violation of this provision required that Breard's death sentence be
vacated.  It argued that Breard had procedurally defaulted the treaty
claim, that vacation of a sentence is not an appropriate remedy under the
treaty (which does not expressly address remedies), and that, in any event,
the failure to provide the required notice was harmless error.  Although I
do not agree with those arguments, I wouldn't say that the administration
took the position that states need not comply with treaties.

He is, as a formal matter, completely correct, and my comment was
hyperbolic.  As a legal realist, though, I would still be willing to defend
the proposition that the practical import of the Administration's position
is that Virginia's compliance with the treaty is entirely discretionary in
the sense that no sanctions will apply if Virginia fails to observe the
treaty's terms.  And, of course, the Breard case was just one more
instance, going back to the glory days of the anti-Sandinista mining, of
the United States, both at the national and state levels, in effect
expressing utter disdain for the authority of international legal
institutions.  (I.e., the Administration could have argued a) that the
World Court was incorrect in believing that vacation of the sentence was
appropriate, etc., but b) that its issuance of the stay order until full
review nonetheless should be complied with.  The Supreme Court might well
have rejected this, given the current majority, but at least the
Administration would have maintained some honor in the international
community.

Sandy Leivnson