Consular Rights of Non-Citizen Criminal Defendants

Given the current political climate, protecting the rights of non-citizen criminal defendants is certainly not a popular activity.  However, and as many judges and elected representatives have repeatedly stated, our judicial system (federal and state) is supposed to be a model of fairness for other countries, particularly those where there are no meaningful due process rights or protections.  Our tradition provides that any criminal defendant – even one who is in the United States illegally – is still entitled to due process.

To help ensure this, there is a procedure which really should be utilized in most, if not all, criminal cases where the defendant is not a US citizen.  International treaties provide that a non-citizen criminal defendant must be allowed to speak to a representative of his country’s consulate to seek whatever assistance the consulate can offer.  This was a major issue in the case of Ruben Cardenas, who was executed last night in Texas.

Cardenas was arrested over 20 years ago for the murder of his teenage cousin.  Following hours of questioning by law enforcement, he admitted to sneaking into his cousin’s through a window.  He also confessed to kidnapping, raping and killing her, and leaving her body near a canal.  He was not given an attorney until 11 days after his arrest, and his defense counsel claimed that his confession was coerced and other evidence in the case was problematic for different reasons.  Representatives of the Mexican government and the United Nations all tried to stop the execution, providing this case with international visibility.  The execution was carried out despite numerous appeals that raised the deprivation of consular rights, as well as other issues.

Pursuant to the 1963 Vienna Convention on Consular Relations, foreign arrestees must be informed that they can contact their country’s consulate while they are being detained to discuss their situation.  Cardenas is not the first foreign defendant in the United States who did not receive notice of his consular rights.  In 2004, the United Nation’s International Court of Justice found that the United States had violated this treaty requirement with over 50 Mexican citizens awaiting execution, including Cardenas.  The UN court ruled that all cases had to be reconsidered prior to execution.  In 2008, however, the United States Supreme Court ruled that the treaty imposed obligations on the federal government, but required nothing from the individual states.

Our Supreme Court’s position on this issue is problematic for several reasons.  First, in many such cases, we are dealing with defendants who have absolutely no familiarity with our system of Government, including our court system.  Further, many of these defendants do not speak English.  For those that do, English may not be their first language.  Additionally, many of them are uneducated and/or illiterate.  In this light, it is difficult to understand how these defendants can defend themselves in any meaningful way against criminal charges in one of our courts.  Accordingly, allowing them the opportunity to speak to a consular representative about their case and their charges helps protect their due process rights, as well as the integrity and reputation of our judicial system.

Another issue to remember is that advising non-citizen criminal defendants of their consular rights is easy and inexpensive.  They can be informed of it at a first appearance before a judge and, if they decide to exercise the right, a consular representative can meet with them wherever they are being held.

I have only been in the courts of one New Jersey county where appears to be taken seriously.  I have heard prosecutors in Somerset County (not exactly a defendant-friendly place) state on the record at either a first appearance or arraignment that a foreign criminal defendant has been advised of their consular rights.  Assuming they still do it there (and even if they don’t), other counties can certainly follow suit.  Notwithstanding the Supreme Court’s holding as to a state’s obligations in this area, advising foreign criminal defendants of their consular rights may just be the right thing to do.

James S. Friedman, is a criminal defense attorney based in New Brunswick, New Jersey.  Mr. Friedman represents criminal defendants in all state and federal trial courts in New Jersey and New York City.



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