NCJ Number
43117
Journal
Harvard Law Review Volume: 90 Issue: 7 Dated: (MAY 1977) Pages: 1500-1527
Date Published
1977
Length
28 pages
Annotation
CONSTITUTIONALITY OF A TREATY CLAUSE PROHIBITING COLLATERAL REVIEW OF MEXICAN CONVICTIONS IS CHALLENGED; ACCESS TO REVIEW MUST BE WAIVED AS A CONDITION TO TRANSFER TO MAKE THIS TREATY PROVISION VIABLE.
Abstract
IN THE SUMMER OF 1976, THE MEXICAN GOVERNMENT PROPOSED THAT MEXICO AND THE UNITED STATES STUDY TRANSFER OF PRISONERS. THE RESULTING TREATY BETWEEN THE UNITED STATES OF AMERICA AND THE UNITED MIXICAN STATES ON THE EXECUTION OF PENAL SENTENCES WOULD PERMIT SOME AMERICANS HELD IN MEXICAN PRISONS TO SERVE THE REMAINDER OF THEIR SENTENCES IN THE U. S., WITH THE SAME CHOICE TO BE GIVEN MEXICAN CITIZENS IN U.S. PRISONS. APPROVAL OF BOTH COUNTRIES WOULD BE NECESSARY. ONE CLAUSE OF THE TREATY PROHIBITS COLLATERAL REVIEW OF MEXICAN CONVICTIONS. THIS SEEMS TO DENY AMERICAN PRISONERS DUE PROCESS OF LAW UNDER THE BILL OF RIGHTS. ALTHOUGH IT IS PRACTICALLY AND POLITICALLY NOT FEASIBLE TO OVERTURN ALL MEXICAN COURT CONVICTIONS, IT IS ARGUED THAT SOME COURT SHOULD BE AVAILABLE TO HEAR AN AMERICAN'S DUE PROCESS CLAIM. CONSTITUTIONAL REASONING AND PREVIOUS EXPERIENCES IN INTERNATIONAL LAW ARE CITED TO SUPPORT THIS STATEMENT. THE ONLY POSSIBILITY UNDER THE PRESENT TREATY WORKING IS TO INSIST UPON A WAIVER OF THIS RIGHT FOR ALL AMERICAN PRISONERS REQUESTING TRANSFER TO U.S. PRISONS. SUCH WAIVERS SHOULD BE SIGNED IN FRONT OF AN AMERICAN OFFICIAL, DULY RECORDED BY AN AMERICAN COURT CLERK, AND BE OBTAINED WITH ADVISE OF COUNSEL. FINALLY, IT MAY BE PRUDENT FOR THE SENATE TO PASS A RESOLUTION INDICATING THAT ITS APPROVAL OF THE TREATY IS PREDICATED UPON THE ONSENT PROVISION INCLUDING A VALID WAIVER OF THE RIGHT TO REVIEW. THIS WILL PREVENT ANY FUTURE INTERPRETATION OF THAT APPROVAL AS SANCTIONING AN UNCONSTITUTIONAL DEPRIVATION OF ACCESS TO AMERICAN COURTS.