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Senate Concurrent Resolution 79

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Location: Washington, DC

SUBMITTED RESOLUTIONS: 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.

[CQ Editor's Note: In the paragraph above, the Congressional Record provided an incorrect bill number for H. Con. Res. 795. The correct bill number is H. Con. Res 79.]

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.

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.

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.

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.

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