[Congressional Record Volume 149, Number 161 (Friday, November 7, 2003)]
[Senate]
[Pages S14275-S14278]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SENATE CONCURRENT RESOLUTION 79--EXPRESSING THE SENSE OF CONGRESS THAT
THE PRESIDENT SHOULD SECURE THE SOVEREIGN RIGHT OF THE UNITED STATES OF
AMERICA AND THE STATES TO PROSECUTE AND PUNISH, ACCORDING TO THE LAWS
OF THE UNITED STATES AND THE SEVERAL STATES, CRIMES COMMITTED IN THE
UNITED STATES BY INDIVIDUAL WHO SUBSEQUENTLY FLEE TO MEXICO TO ESCAPE
PROSECUTION
Mrs. FEINSTEIN (for herself, Mr. Brownback, Mr. Nelson of Florida,
Mrs. Hutchison, Mr. Bingaman, Mr. Domenici, Mr. Kyl, Mr. Campbell, and
Mr. Hatch) submitted the following concurrent resolution; which was
referred to the Committee on Foreign Relations:
S. Con. Res. 79
Whereas, under the Extradition Treaty between the United
States of America and the United Mexican States, signed at
Mexico City May 4, 1978, and entered into force January 25,
1980 (31 UST 5059) (hereafter the ``Extradition Treaty''),
Mexico has refused to extradite unconditionally to the United
States fugitives facing capital punishment;
Whereas the Mexican Supreme Court ruled in October 2001,
that life imprisonment violates the Constitution of Mexico,
and Mexico has subsequently repeatedly violated the
Extradition Treaty by refusing to extradite unconditionally
criminals who face life sentences in the United States;
Whereas numerous individuals have committed serious crimes
in the United States, fled to Mexico to avoid prosecution,
and have not been brought to justice in the United States
because of Mexico's interpretation of the Extradition Treaty;
Whereas these individuals include the persons responsible
for the April 29, 2002, murder of Deputy Sheriff David March,
the July 17, 2000, killing of Officer Michael Dunman, the
August 29, 1998, murder of 12 year old Stephen Morales, the
April 9, 1999, attempted murder of Anabella Van Perez and the
subsequent August 26, 1999, murder of her father, Carlos
Vara, and the December 22, 1989, murder of Mike Juan;
Whereas attorneys general from all 50 States, the National
League of Cities, and numerous elected officials,
municipalities, and law enforcement associations have asked
the United States Attorney General and the Secretary of State
to address this extradition issue with their counterparts in
Mexico;
Whereas United States Government officials at various
levels have raised concerns about the extradition issue with
their counterparts in Mexico, including presenting a Protest
Note to the Government of Mexico objecting that Mexico's
interpretation of the Extradition Treaty is ``unsupported by
the Treaty'' and effectively ``eviscerates'' it, with few
positive results; and
Whereas the Extradition Treaty, as interpreted by Mexico,
interferes with the justice system of the United States and
encourages criminals to flee to Mexico; Now, therefore, be it
Resolved by the Senate (the House of Representatives
concurring), That it is the sense of Congress that the
President should address Mexico's failure to fulfill its
obligations under the Extradition Treaty between the United
States of America and the United Mexican States, signed at
Mexico City May 4, 1978, and entered into force January 25,
1980 (31 UST 5059), by renegotiating the treaty or taking
other action to ensure that the possibility that criminal
suspects from Mexico may face capital punishment or life
imprisonment will not interfere with the unconditional and
timely extradition of such criminal suspects to the United
States.
____
Mrs. FEINSTEIN. Mr. President, I rise to submit S. Con. Res. 795, a
Senate concurrent resolution calling upon the President to address
Mexico's failure to fulfill its obligations under the U.S.-Mexico
Extradition Treaty, which entered into force in January 1980. I am
delighted that Senators Brownback, Bill Nelson, Hutchison, Bingaman,
Domenici, Kyl, and Campbell join me in submitting this resolution.
Specifically, this resolution calls upon President Bush to
renegotiate the Extradition Treaty or take other actions to ensure that
the U.S. can extradite serious criminals back to the U.S. for
appropriate prosecution and punishment.
In my view, this treaty--at least as interpreted by Mexico--is simply
not working as intended. While the U.S. is currently attempting to
extradite hundreds of fugitives from Mexico, since 1996, Mexico has
sent back only a relative handful every year. For example, in fiscal
years 1996 through 2002, Mexico only extradited an average of 14
individuals to the U.S. each year. Even worse, Mexico's recent
interpretation of this treaty has effectively eliminated our ability to
extradite persons charged with serious crimes who flee to Mexico to
avoid prosecution in the United States.
This interpretation has jeopardized the safety of both American and
Mexican citizens, undermined the integrity of our criminal justice
system, denied basic rights and closure to crime victims, and allowed
serious felons to escape just punishment. The result is that Mexico is
becoming a safe haven for hard-core criminals. If you steal a car in
the U.S., Mexico will return you to face prosecution and punishment. If
you kill the driver, Mexico will protect you.
The problem in a nutshell is that, since October 2001, Mexico has
read the U.S.-Mexico Extradition Treaty as barring the extradition to
the United States of anyone who faces a potential life term. In other
words, if a person commits a serious crime in the U.S.--one that could
subject them to a maximum life term--and heads south, Mexico will
refuse to extradite that person to the U.S. to face prosecution and
punishment in this country.
While it has been difficult to determine the full scope of the
problem, I am informed by prosecutors in California that, as a result
of Mexico's interpretation of the Extradition Treaty, there are as many
as 350 people who have committed murder and other serious crimes in
California who have either not been extradited or have been effectively
rendered non-extraditable.
[[Page S14276]]
These 350 people have thus escaped appropriate prosecution and
punishment under California law. Many of these people are living free
and unpunished in Mexico. In some cases, we even know where they are.
Let me quote from a recent Santa Barbara News Press article: A half
dozen people wanted in the slayings of Santa Barbara residents are
believed to be living free in Mexico. Santa Barbara police detectives
even know where three of them live. But there's not much they can do
about it. ``If I had unfettered access to the proper investigative
tools and contacts, we could have them in custody in a matter of
days,'' said Detective Tim Roberts . . . ``But that's not the case.''
Let me give you an example of another especially heinous case.
On April 29, 2002, Armando Garcia, a Mexican national who had been
previously charged in the U.S. with two counts of attempted murder,
allegedly shot and killed, execution-style, 33-year-old Los Angeles
County Deputy Sheriff David March during a routine traffic stop in
Irwindale, CA. Garcia then fled to Mexico, where he remains a free man.
Los Angeles District Attorney Steve Cooley has not formally requested
Garcia's extradition because he says that there is no point. Mexico
will demand that Cooley promise that Garcia will not receive life in
prison for his crime--a promise that cannot be made because in this
country sentences are up to a judge to set, once a person has been
convicted of a crime. The results is that Garcia remains at large in
Mexico.
And earlier this year there was a horrific case in Santa Cruz
implicating the Extradition Treaty. Miguel Ramirez Loza, 27 years old,
allegedly attacked his 17-year-old girlfriend in an abandoned preschool
building, slashing her throat and then spitting on her. As his
girlfriend lay dying, he then raped the victim's 17-year-old friend.
Loza's girlfriend was in a coma for months after the crime and just
recently died.
Loza is now in Mexico and is apparently in a Mexican jail as a result
of a stabbing in Mexico unrelated to the Santa Cruz incident. However,
according to Santa Cruz District Attorney Bob Lee, Loza cannot be
extradited for the murder and rape in California because of Mexico's
interpretation of the Extradition Treaty.
It is true that Mexico does sometimes prosecute individuals in Mexico
who committed crimes in the U.S. under Article IV of its Criminal Code.
But often Mexico fails to do this. And, in any event, there is no
substitute for extraditing the person to the United States.
There are credible reports that defendants in Mexico sometimes buy
their acquittals. And, at least by U.S. standards, Mexican standards of
justice can be quite low. Trials often take place with no testimony and
no witnesses. Victims and their families are not invited or consulted.
And sentences--often reduced on appeal--frequently bear little
resemblance to those authorized by U.S. sentencing laws.
Not surprisingly, according to an article in the Las Vegas Review-
Journal, ``More than a dozen prosecutors in Nevada, California and
Arizona who were interviewed for this story criticized Article IV as an
ineffectual alternative to extradition.'' One prosecutor, Jan Maurizi
of the Los Angeles District Attorney's Office, stated that she ``sent
demands to the Mexican government asking what happened to 97 Article IV
cases that have seemingly disappeared from the justice system. Mexico .
. . never responded. But from others we've talked to in unofficial
channels, it's clear the vast majority of them are grossly inadequate
sentences. Most of them, nothing happens.''
Another prosecutor, Val Jimenez, the special agent supervisor of the
Foreign Prosecution Unit at the California Attorney General's Office,
has mentioned one recent case where a defendant ``got 20 years for
doing a homicide, appealed, and he was out in 18 months.'' And even if
defendants were convicted, they may not serve real time. It was not
until last year that Mexico finally tore down the infamous La Mesa
State Penitentiary in Tijuana. La Mesa was a place where prisoners were
free to purchase $25,000 townhomes with cell phones, tiled bathrooms,
Jacuzzis, microwaves, computers, DVD players, and guard dogs such as
Rottweilers. One murder in the prison was committed with a Uzi.
The U.S.-Mexico Extradition Treaty provides that neither country is
bound to deliver up its nationals for extradition. It further provides
that where the offense for which extradition is sought is punishable by
death, a country may refuse to extradite unless the country seeking
extradition assures that it will not impose the death penalty. Under
the Treaty, the death penalty is the sole punishment for which
assurances may be required. For decades, Mexico has extradited suspects
to California and other states without inordinate problems. Then, in
October 2001, the Mexican Supreme Court ruled that life imprisonment
violates the Constitution of Mexico and extended this interpretation to
the Extradition Treaty. Specifically, the Court decided that Mexico
could no longer extradite a fugitive who is subject to life
imprisonment with or without the possibility of parole, unless
assurances are given that guarantee a determinate term of years.
Here is what the Mexican Supreme Court said in Opinion No. 125/2001,
which is about a half-page long: [T]he punishment of life imprisonment
is considered an unusual penalty and is prohibited by . . . article 22
of the [Mexican Constitution], inasmuch as it departs from the
essential purpose of the penalty, which is the rehabilitation of the
offender to incorporate him/her into society. It is, therefore,
unquestionable that the requesting [i.e., extraditing] State must bind
itself not to impose the penalty of life imprisonment, only another
less serious punishment.
Article 22 of the Mexican Constitution prohibits ``[p]unishment by
mutilation and extreme cruelty, branding, flogging, beating with
sticks, torture of any kind, excessive fines, confiscation of property
and any other unusual or extreme penalties. . . .''
In light of the fact that the Extradition Treaty prohibits Mexico
from extraditing criminals to the U.S. unless the U.S. agrees to waive
the death penalty, it is interesting to note that Article 22 of the
Mexican Constitution specifically allows the death penalty for ``high
treason committed during a foreign war; parricide; murder that is
treacherous, premeditated, or committed for profit; arson; abduction;
highway robbery; piracy; and grave military offenses.''
So, in other words, according to the Mexican Supreme Court, the
Mexican Constitution allows the death penalty for highway robbery in
Mexico but, should an American criminal murder a police officer in
California and then flee to Mexico, Mexico will refuse to turn this
person over to the U.S. if he would face either the death penalty or a
possible life term.
In my view, this makes no sense. However, Mexico as a sovereign
nation is free to interpret its domestic law as it sees fit. I do not
quarrel with their interpretation of their own law. But I do question
whether Mexico can unilaterally rewrite the U.S.-Mexican Extradition
Treaty. And that is exactly the effect of its interpretation of the
Treaty as barring extradition to the U.S. of any alleged criminal who
faces a possible life term. In fact, Mexico's interpretation of the
Treaty is unsupported by and inconsistent with the Treaty's language,
purpose, structure, and history. It is also conflicts with the Vienna
Convention on the Law of Treaties, which states that a treaty shall be
interpreted ``in accordance with the ordinary meaning to be given to
the terms of the treaty in their context and in light of its object and
purpose.''
As the U.S. State Department has made clear in a Protest Note to the
Mexican Government after the October 2001 decision, [R]equiring
assurances for a punishment other than the death penalty is unsupported
by the Treaty, which provides the substantive extradition requirement.
. . . To give [the Treaty] the reading Mexico has given it eviscerates
the Treaty, for such a reading would disregard the substantive
exceptions found in Articles 5 through 9, and would permit each Party
to refuse each other's extradition requests based on its domestic law
on sentencing, which could be changed unilaterally at any time, even if
that change rendered the law inconsistent with the Treaty.
[[Page S14277]]
Moreover, Mexico's interpretation of the Treaty has made it
effectively impossible to extradite from Mexico individuals who commit
murder or other serious crimes in California and many other States. In
California, for example, over 40 different crimes are punishable by
possible life sentences and neither a judge nor a prosecutor can give
assurances of a determinate term for these crimes. As a result,
Mexico's policy encourages people committing serious crimes in
California to flee to Mexico and escape just punishment. Indeed,
individuals in the United States with a criminal history have a
perverse incentive to kill an arresting police officer and head for
Mexico rather than face possible prosecution and imprisonment in the
United States.
Given Mexico's interpretation of the Treaty, the only way to
extradite a Mexican national charged with a ``life'' crime is to seek
extradition on reduced charges punishable by a determinate sentence.
But this would mean treating more harshly those who commit a crime and
remain in California than those who commit the same crime and flee to
Mexico. This is not only unfair and a blow to the integrity of our
criminal justice system. But it also just encourages criminals to flee
to Mexico to reduce their potential punishment.
Moreover, it is unclear exactly what assurances will suffice. In at
least one Federal major narcotics trafficking case, a Mexican court
determined that a twenty-year sentence was ``cruel and unusual'' and
thus unconstitutional. And some Mexican courts have ruled that only a
judge can give sufficient assurances--a legal impossibility under
California's judicial system.
Mexico's interpretation of the U.S.-Mexico Extradition Treaty has
unquestionably had a particularly harmful effect on my home state of
California. I would like to commend the Los Angeles District Attorney
Steve Cooley and Deputy District Attorney Jan Maurizi for their work in
identifying cases of individuals who have committed murder and other
serious crimes in California who have either not been extradited or
have been effectively rendered non-extraditable. As I noted before,
there are at least 350 such cases just in my home state. Many district
attorneys do not keep adequate records of which suspects fled to
Mexico, which cases are potentially extraditable, and which cases have
been or could be subject to Article IV prosecution.
In fact, when we asked the National Association of District Attorneys
to conduct a survey of how many cases have been affected by Mexico's
interpretation of the Treaty, it received responses from only 17
jurisdictions, and much of this information was anecdotal. This survey,
though, does demonstrate that the problem caused by Mexico's
interpretation of the Extradition Treaty also afflict a number of other
states. Based on the information we received, there are at least 60
cases around the country outside of California--and this number
probably grossly understates the problem. These cases are in Arizona,
Florida, Hawaii, Nevada, New York, Oregon, Tennessee, Texas, and
Washington. These numbers, though, do not tell whole story. In every
case, there is a horrible crime, a victim, a shattered family, and a
horrible injustice.
I have already discussed a couple of specific criminal cases
implicating the U.S.-Mexico Extradition Treaty. But now I would like to
talk about four more. In every case, the perpetrator of a heinous crime
has escaped appropriate punishment because of Mexico's interpretation
of the U.S.-Mexico Extradition Treaty.
In August of 1999, Daniel Perez, a Mexican national, was convicted in
absentia in Los Angeles County by a jury for the crimes of attempted
first degree murder, use of a firearm, espousal battery, kidnapping,
false imprisonment and stalking his estranged wife.
Perez and the 21-year-old victim, Anabella Vera, were separated. They
met at a pizza place. After kidnapping her at gunpoint and terrorizing
her for two hours, Anabella finally convinced Perez that she would
return home with him. Perez then drove Anabella to her car. After
Anabella tried to drive away from him, Perez chased her in his car,
ramming her vehicle and forcing her to run red lights. Ultimately,
Anabella became stuck in traffic and, in a desperate bid to save her
life, abandoned her car and tried to flee. Perez then caught Anabella
at a gas station and shot her in the head. Miraculously, she survived.
During the trial and while out on bail, Perez drove to Fontana, CA to
the home of Anabella's father, who had been a key witness against
Perez. In front of Anabella's siblings, Perez shot and killed
Anabella's father. Perez then allegedly fled to Mexico, where he is
still at large.
Perez was sentenced in absentia in Los Angeles County for attempted
murder to a term of 33 years to life, plus an additional life term. In
addition, the San Bernardino County District Attorney's Office has
charged Perez with the murder of the victim's father and the special
circumstances of killing a witness. These charges carry a potential
punishment of life in prison without the possibility of parole or, if
it is not waived, the death penalty. Because Mexico does not recognize
convictions in absentia, my understanding is that Mexico will neither
extradite Perez for attempted murder nor prosecute him under Article IV
of the Mexican Federal Penal Code.
Alvara Luna Jara has been charged with the special circumstances
murder of 12-year-old Steven Morales and the attempted murder of three
others. On August 29, 1998, Steven was playing with several other
children in front of their apartment, near three members of a local
sheet gang. As Jara drove by, he and the three gang members exchanged
hand gestures. Jara then extended his arm out of the car window and
fired three rounds into the crowd, killing Steven with a gunshot to the
head. Jara then fled to Mexico. If convicted in the United States, Jara
could face life without possibility of parole or, if it is not waived,
the death penalty. However, while Jara is not a Mexican national, the
Mexican government has refused to deport him because his parents are
Mexican nationals. After this refusal, Los Angeles District Attorney
Cooley began formal extradition proceedings. However, because of
Mexico's interpretation of the October 2000 Mexican Supreme Court
decision, Cooley never submitted the formal request.
On May 7, 1988, Father Nicholas Aguilar Rivera, a Catholic priest,
was charged with 19 counts of child molestation. The day after he was
charged, Father Rivera fled to Mexico. Although the case was supposed
to be prosecuted promptly under Article IV, Mexican prosecutors failed
to submit the case for prosecution until 1995. The Mexican court
dismissed the matter as untimely and entered an acquittal. Now, both
countries are barred from further prosecution.
On May 17, 1998, Ruben Hernandez Martinez and Luis Castanon allegedly
broke into the Nashville apartment of Kelly Quinn and her roommate
after waiting for Ms. Quinn to return home. They then attacked her,
raping her continuously for hours. When they were done, they made Ms.
Quinn shower to remove any DNA evidence. However, Ms. Quinn was able to
conceal semen that was on her neck. Castanon was arrested and, on the
basis of fingerprint and serology evidence, convicted of aggravated
sexual assault. He was sentenced to 60 years. Martinez, whom Nashville
police believe committed several other rapes as well, fled to Mexico. I
am informed that, while Martinez has been in custody in a Mexico City
jail for over a year, Mexico has still refused to make a decision as to
whether they will extradite him.
The United States can and must retain discretion to prosecute and
punish its most dangerous and violent offenders who commit crimes in
the United States according to U.S. laws. Criminals should not be
allowed to escape justice in the U.S. for the price of a bus ticket to
Mexico.
I would now like read a letter I received from a youngster in
California about this problem. Here is what he says:
My mom is a deputy sheriff for Los Angeles. Every night she
goes to work. I say a prayer for her she will come home
safely. So far she has. Deputy March was not so lucky. I
wonder how his kids must feel not having a dad any longer.
Could you please help catch the man that killed Deputy March.
I listen to the radio a lot and they said the bad man that
did this is in Mexico and he is not in jail. Could you please
get him back here so my mom will be safer when she goes to
work.
[[Page S14278]]
Thank you.
It is unfortunate that we live in a country where we cannot assure a
youngster that the man who killed his mom's colleague won't come back
and hurt her too. That is why we need to pass this resolution now. That
is why we need the President to act.
I ask my colleagues for their support.
I also ask unanimous consent that an October 24, 2003 Resolution of
the International Association of Chiefs of Police be printed in the
Record.
There being no objection, the resolution was ordered to be printed in
the Record, as follows:
[Resolution From the International Association of Chiefs of Police,
Adopted Oct. 24, 2003]
Extradition of Criminal Suspects
(Submitted by the Executive Committee)
Whereas, the law enforcement profession has a compelling
interest in ensuring that individuals suspected of committing
crimes are not able to evade justice by leaving the country
in which the crime was committed; and
Whereas, in response to this problem, many nations have
established extradition treaties that allow for the return of
criminal fugitives to the country in which they are suspected
of committing crimes; and
Whereas, extradition treaties are political agreements
between nations; and,
Whereas, the International Association of Chiefs of Police
refrains from entering into political disputes between
nations unless an issue which clearly impacts the law
enforcement profession is involved; and
Whereas, these treaties form the backbone of international
law enforcement efforts and have allowed for the successful
apprehension and conviction of many fugitives over the years,
and
Whereas, the effectiveness of these treaties relies upon
the timely return of criminal suspects; and
Whereas, the terms of some extradition treaties have proven
to be too restrictive and have significantly limited the
ability of law enforcement agencies to bring a criminal
suspect to trial and have, in effect, allowed for the
creation of safe havens for criminal fugitives; and
Whereas, for example, the Extradition Treaty between the
United States of America and the United Mexican States allows
the United Mexican States to refuse to extradite criminal
suspects who face capital punishment for crimes committed
within the United States, and a recent decision of the
Mexican Supreme Court has unilaterally and mandatorily
extended that prohibition on life sentences, and
Whereas, it is clear that extradition treaties and
agreements that do not allow for the timely return of
criminal suspects or that condition their return on the
domestic sentencing laws of the requested state are an issue
that clearly impacts the law enforcement profession and it is
appropriate for the International Association of Chiefs of
Police to express the concern of the law enforcement
community in this matter and work to resolve this situation;
Now, therefore be it
Resolved, That the International Association of Chief of
Police calls on all nations to ensure that extradition
treaties serve only to guarantee that accused individuals are
provided with due process of law and not to provide criminal
suspects with a means of evading justice; and be it
Further resolved, That the International Association of
Chiefs of Police calls on the governments of the United
States of America and the United Mexican States to
renegotiate the extradition treaty so that the possibility of
capital punishment or life imprisonment shall not interfere
with the timely and unconditional extradition of criminal
suspects.
____________________