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July 22, 2013

ECHR on LWOP: guest post on what Vinter might mean for extradition to US

As noted in this post earlier this month, a landmark ruling from the European Court of Human Rights  involving UK nationals declared that LWOP sentences without any prospect of release amount to inhuman and degrading treatment of prisoners.  And, as discussed in this follow-up post, I am intrigued by what the decision in Case of Vinter and Others v. the United Kingdom (available via this link) could mean for sentencing law and practices in the US.

Helpfully, my OSU colleague John Quigley was kind enough to write up this thoughtful explanation of what Vinter could mean for US extradition practices:

For the United States, the significance of the case is that the European Court of Human Rights has previously ruled that an extradition request must be denied if the individual would be subjected in the requesting state to treatment or punishment that would violate Article 3 if carried out by a state party to the European Convention on Human Rights.  A few years ago, a man named Ralston Wellington was wanted in Missouri on a murder charge.  He had gone to the UK, and US authorities requested his extradition. He argued that he might be subjected to life without parole in Missouri and fought extradition on that basis, invoking Article 3.  Wellington was extradited in 2010, but only after the matter went up to the House of Lords, then the highest rung in the UK judicial ladder, where sentencing procedures in Missouri were analyzed in detail.

After the Vinter judgment, a person in Wellington’s situation would stand a better chance of avoiding extradition.  Given what the European Court said, as related above, if the US seeks extradition for surrender to the authorities of a state where a life sentence may be imposed, a UK court could find the person extraditable only if it appeared that a procedure would be available (and would be made known to the person at time of sentencing) to review the sentence, and that release would be a possibility as result of such review.

While the Vinter case concerned the UK, it would apply equally to all states that are party to the European Convention on Human Rights, currently numbering 47.  Thus, a fugitive from the United States in any of these 47 states of Europe could mount a challenge to extradition.

The likely outcome would be that prior to surrendering the individual, the requested state would require an assurance from the United States that the individual would not be sentenced to a life term that would violate Article 3 if imposed by a European state. The matter would be handled on the US side by the Department of State, which could decide against giving an assurance, in which case extradition would likely be denied, or decide to give an assurance, in which case a surrender would likely ensue.  If the prosecution were in a state of the United States, the Department of State would doubtless confer with the authorities of that state before deciding what to do.

If the Department of State were then to give an assurance, the individual would likely be surrender and transported to the state in question.  There it would be up to prosecuting authorities in the relevant county how to proceed.  In a case decided in 1989 by the European Court of Human Rights, the United States gave an assurance to the UK that an individual sought on a murder charge in Virginia (and at the time under arrest in London) would not be subjected to capital punishment.  Soering v. United Kingdom (also available on the European Court website).  The county prosecutor in Virginia had gained an indictment for capital murder, and that indictment was still in effect at the time of the surrender. The prosecutor subsequently dropped the capital specification.

What is not clear as a matter of US law is the situation that would obtain were a prosecutor to refuse to honor an assurance given by the Department of State.  Suppose the state prosecution continued, and a life sentence were imposed with no provision for a review or possible release.  Such a refusal would put the United States in violation of the international commitment it made to the requested state.  But it would not be the first time that state authorities in the United States put the federal government in violation of an international commitment with respect to the handling of a criminal case. See Medellin v. Texas, 552 US 491 (2008).  The US Attorney General would have a basis for suing the state to force it to honor the international commitment.  In all likelihood, the matter would be resolved such that the assurance would be honored.  But it is not obvious just how that would come about.

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July 22, 2013 at 11:39 AM | Permalink


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The oddity is the perverse incentives it creates. If you are a hard-core criminal Europe will protect you from those heathens in the USA.

Pull the trigger, hop a plane, get away with murder. Really stupid stuff IMO.

Posted by: Daniel | Jul 22, 2013 1:04:57 PM

Hmmmm. Perhaps Mr. Snowden should just plop himself down in, say, Berlin, and stick his tongue out at the US. I cannot imagine DOJ would give up the right to the death penalty or LWOP in his case.

Posted by: Allan | Jul 22, 2013 4:14:38 PM

1) How this problem will be answered by jurisdictions where lifers can't be paroled (ie Maine, La., Ill., Fl., S.D., Penn., Federal Government) ? Does the measures taken in the aftermath of Graham and Miller will be reused?

2) Will very long periodes before being eligible for parole (ie. 50 years to life) and determinate sentences (ie. 100 years) be considered in futures cases?

Posted by: visitor | Jul 22, 2013 5:31:49 PM

What you do is say, ok, then you guys get to keep him . . . .

Posted by: federalist | Jul 22, 2013 10:58:46 PM

@federalist and Daniel,

Thought it is not likely, I hope the E.Ct.H.R. will, in the extradition cases to come soon, give more weight to the right of the states to not be burdened of fugitive lawbreakers on their territories (so that they don't become criminal havens) than in the interests of such criminals.

Posted by: visitor | Jul 23, 2013 6:09:53 AM

I think that it will be a long time before this has any impact on extradition because the ECHR will apply a higher standard for extradition (see the whole of, but especially para 238. of the ECHR Abu Hamza judgment last year - http://www.bailii.org/eu/cases/ECHR/2012/609.html.

On a separate note, here was my take on the judgment and the practical effect - http://ukcrime.wordpress.com/2013/07/11/whole-life-tariffs-unlawful-vinter-v-uk-in-the-echr/

[as per your request, I'm a defence and prosecution barrister (trial attorney) in England]

Posted by: Dan Bunting | Jul 24, 2013 11:02:36 AM

how true Dan not to metion that more and more EU as well as other areas are learning something it took a long damn time for the american indian to learn.

When United States talks it is with a "forked tongue"

They have been caught now too many damn times saying one thing in that other jurisdiction to get control of the individual then once the individual is back in the states all that bullshit is forgotten!

Posted by: rodsmith | Jul 24, 2013 9:44:04 PM

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