[House Hearing, 108 Congress]
[From the U.S. Government Publishing Office]
STRENGTHENING THE LONG ARM OF THE LAW: HOW ARE FUGITIVES AVOIDING
EXTRADITION, AND HOW CAN WE BRING THEM TO JUSTICE?
=======================================================================
HEARING
before the
SUBCOMMITTEE ON CRIMINAL JUSTICE,
DRUG POLICY AND HUMAN RESOURCES
of the
COMMITTEE ON
GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTH CONGRESS
FIRST SESSION
__________
OCTOBER 1, 2003
__________
Serial No. 108-128
__________
Printed for the use of the Committee on Government Reform
Available via the World Wide Web: http://www.gpo.gov/congress/house
http://www.house.gov/reform
______
U.S. GOVERNMENT PRINTING OFFICE
92-899 WASHINGTON : DC
____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512�091800
Fax: (202) 512�092250 Mail: Stop SSOP, Washington, DC 20402�090001
COMMITTEE ON GOVERNMENT REFORM
TOM DAVIS, Virginia, Chairman
DAN BURTON, Indiana HENRY A. WAXMAN, California
CHRISTOPHER SHAYS, Connecticut TOM LANTOS, California
ILEANA ROS-LEHTINEN, Florida MAJOR R. OWENS, New York
JOHN M. McHUGH, New York EDOLPHUS TOWNS, New York
JOHN L. MICA, Florida PAUL E. KANJORSKI, Pennsylvania
MARK E. SOUDER, Indiana CAROLYN B. MALONEY, New York
STEVEN C. LaTOURETTE, Ohio ELIJAH E. CUMMINGS, Maryland
DOUG OSE, California DENNIS J. KUCINICH, Ohio
RON LEWIS, Kentucky DANNY K. DAVIS, Illinois
JO ANN DAVIS, Virginia JOHN F. TIERNEY, Massachusetts
TODD RUSSELL PLATTS, Pennsylvania WM. LACY CLAY, Missouri
CHRIS CANNON, Utah DIANE E. WATSON, California
ADAM H. PUTNAM, Florida STEPHEN F. LYNCH, Massachusetts
EDWARD L. SCHROCK, Virginia CHRIS VAN HOLLEN, Maryland
JOHN J. DUNCAN, Jr., Tennessee LINDA T. SANCHEZ, California
JOHN SULLIVAN, Oklahoma C.A. ``DUTCH'' RUPPERSBERGER,
NATHAN DEAL, Georgia Maryland
CANDICE S. MILLER, Michigan ELEANOR HOLMES NORTON, District of
TIM MURPHY, Pennsylvania Columbia
MICHAEL R. TURNER, Ohio JIM COOPER, Tennessee
JOHN R. CARTER, Texas CHRIS BELL, Texas
WILLIAM J. JANKLOW, South Dakota ------
MARSHA BLACKBURN, Tennessee BERNARD SANDERS, Vermont
(Independent)
Peter Sirh, Staff Director
Melissa Wojciak, Deputy Staff Director
Rob Borden, Parliamentarian
Teresa Austin, Chief Clerk
Philip M. Schiliro, Minority Staff Director
Subcommittee on Criminal Justice, Drug Policy and Human Resources
MARK E. SOUDER, Indiana, Chairman
NATHAN DEAL, Georgia ELIJAH E. CUMMINGS, Maryland
JOHN M. McHUGH, New York DANNY K. DAVIS, Illinois
JOHN L. MICA, Florida WM. LACY CLAY, Missouri
DOUG OSE, California LINDA T. SANCHEZ, California
JO ANN DAVIS, Virginia C.A. ``DUTCH'' RUPPERSBERGER,
EDWARD L. SCHROCK, Virginia Maryland
JOHN R. CARTER, Texas ELEANOR HOLMES NORTON, District of
MARSHA BLACKBURN, Tennessee Columbia
CHRIS BELL, Texas
Ex Officio
TOM DAVIS, Virginia HENRY A. WAXMAN, California
J. Marc Wheat, Staff Director and Chief Counsel
Nicholas Coleman, Professional Staff Member and Counsel
Nicole Garrett, Clerk
Tony Haywood, Minority Counsel
C O N T E N T S
----------
Page
Hearing held on October 1, 2003.................................. 1
Statement of:
Fox, James, district attorney, San Mateo County, CA,
representing the National District Attorneys Association;
Daniel J. Porter, district attorney, Gwinnett Judicial
Circuit, Georgia; and Teri March, widow of Los Angeles
County, CA Deputy Sheriff David March...................... 64
Witten, Samuel, Deputy Legal Advisor, Legal Bureau, U.S.
Department of State; and Bruce Swartz, Deputy Assistant
Attorney General, Criminal Division, U.S. Department of
Justice.................................................... 12
Letters, statements, etc., submitted for the record by:
Cummings, Hon. Elijah E., a Representative in Congress from
the State of Maryland, prepared statement of............... 111
Deal, Hon. Nathan, a Representative in Congress from the
State of Georgia, prepared statement of.................... 9
Fox, James, district attorney, San Mateo County, CA,
representing the National District Attorneys Association,
prepared statement of...................................... 66
March, Teri, widow of Los Angeles County, CA Deputy Sheriff
David March, prepared statement of......................... 84
Porter, Daniel J., district attorney, Gwinnett Judicial
Circuit, Georgia, prepared statement of.................... 73
Souder, Hon. Mark E., a Representative in Congress from the
State of Indiana, prepared statement of.................... 4
Swartz, Bruce, Deputy Assistant Attorney General, Criminal
Division, U.S. Department of Justice, prepared statement of 29
Witten, Samuel, Deputy Legal Advisor, Legal Bureau, U.S.
Department of State, prepared statement of................. 15
STRENGTHENING THE LONG ARM OF THE LAW: HOW ARE FUGITIVES AVOIDING
EXTRADITION, AND HOW CAN WE BRING THEM TO JUSTICE?
----------
WEDNESDAY, OCTOBER 1, 2003
House of Representatives,
Subcommittee on Criminal Justice, Drug Policy and
Human Resources,
Committee on Government Reform,
Washington, DC.
The subcommittee met, pursuant to notice, at 10:10 a.m., in
room 2154, Rayburn House Office Building, Hon. Mark E. Souder
(chairman of the subcommittee) presiding.
Present: Representatives Souder, Deal, Ose, Carter, Clay,
Sanchez, Ruppersberger, Norton and Bell.
Staff present: J. Marc Wheat, staff director and chief
counsel; Nicholas Coleman, professional staff member and
counsel; John Stanton, congressional fellow; Nicole Garrett,
clerk; Tony Haywood, minority counsel; and Jean Gosa, minority
assistant clerk.
Mr. Souder. The hearing will come to order. Good morning,
and thank you for coming.
Today our subcommittee will address the status of the
extradition process, an area of growing concern for lawmakers
and law enforcement officials throughout the United States. The
extradition process, which is governed by a series of bilateral
treaties between the United States and various foreign
countries, is intended to ensure that criminals cannot escape
justice by fleeing from one country to another. Under an
extradition treaty, the new host country will arrest the
fugitive and return him to face trial. Recent developments have
put strains on the extradition process, however, hindering or
sometimes completely impeding the ability of law enforcement to
bring criminal fugitives to justice.
The most significant problem with the extradition process
today is the conditions imposed by foreign nations on
extradition. This problem is not new. For many decades now
certain nations that ban the death penalty within their own
borders have refused to extradite any criminal who can face the
death penalty in the United States. Other countries refuse to
extradite any fugitive who is convicted in absentia.
Prosecutors in the United States have generally dealt with this
problem by agreeing to seek life imprisonment instead of the
death penalty, or by agreeing to hold a retrial.
In October 2001, however, the Mexican Supreme Court issued
a decision banning the extradition of anyone facing life
imprisonment without the possibility of parole on the grounds
that the Mexican Constitution gives all criminals the right to
be rehabilitated and reintegrated into society. Thus, no matter
how heinous the crime or how dangerous the criminal, Mexico
will refuse to extradite anyone facing life imprisonment, which
in most of our States is the minimum punishment for first-
degree murder. If Mexican authorities officially refuse an
extradition request, they will then proceed to prosecute the
fugitive under their own law, which often results in much
lesser penalties. American prosecutors thus face a dilemma.
They must either agree to charge a murderer with manslaughter
or another lesser offense that does match the seriousness of
the crime, or they must trust to the Mexican justice system.
Many prosecutors have simply refused to request extradition
under such conditions, preferring to hope that the fugitive
will sneak back into the United States and be apprehended.
The case of Deputy Sheriff David March illustrates this
problem. Deputy March, a 7-year veteran of the Los Angeles
County Sheriff's Department, was murdered while making a
routine traffic stop in April 2002. His suspected killer,
Armando Garcia, a Mexican national and violent drug dealer who
had been deported three times from the United States,
immediately fled to Mexico. Mexican authorities have refused to
extradite Garcia on the grounds that he faces, at a minimum,
life imprisonment.
The case of Deputy March and others like it has spurred
calls from the administration to put pressure on the Mexican
Government to renegotiate its extradition treaty with the
United States. Deputy March's widow Teri has actively
campaigned for justice for her husband and similar victims of
fugitive killers. This is indeed not an isolated case. The Los
Angeles District Attorney's Office estimates that over 200
murder suspects in Los Angeles County alone have fled to
Mexico. In response, several Members of Congress have offered
legislation calling for changes to the existing extradition
treaty.
Other issues surrounding the extradition process must also
be examined by Congress. For example, in March 2002, the
Justice Department Inspector General released a report
criticizing the Criminal Division's Office of International
Affairs, the main Justice Department agency responsible for
extradition matters, for its management of extradition cases.
Questions have also been raised about how vigorously other
Federal agencies with potential influence are pursuing
extradition cases.
This hearing will address all these difficult issues as
well as legislative and other potential solutions. We are
pleased to be joined by representatives of the two Federal
agencies primarily responsible for managing the extradition
process, the U.S. Department of Justice and U.S. Department of
State. From the Justice Department we welcome Mr. Bruce Swartz,
Deputy Assistant Attorney General at the Criminal Division; and
from the State Department we welcome Mr. Samuel Witten, Deputy
Legal Advisor at the Department's Legal Bureau.
Given the impact that extradition has on local law
enforcement and victims of crime, it is especially important
that we hear from local representatives. Representing local law
enforcement officials, we are pleased to be joined by the
Honorable James Fox, District Attorney for San Mateo County,
CA, representing the National District Attorney's Association;
and the Honorable Daniel J. Porter, District Attorney of the
Gwinnett Judicial Circuit in Georgia. We are also especially
honored to be joined by Mrs. Teri March, the widow of Deputy
Sheriff March, who has worked so tirelessly to raise the
awareness of this issue and to get justice for her husband.
I thank everyone for taking the time to join us this
morning, and I look forward to hearing your testimony.
[The prepared statement of Hon. Mark E. Souder follows:]
[GRAPHIC] [TIFF OMITTED] T2899.001
[GRAPHIC] [TIFF OMITTED] T2899.002
[GRAPHIC] [TIFF OMITTED] T2899.003
Mr. Souder. I will now yield to our Congresswoman Sanchez
for an opening statement.
Ms. Sanchez. I don't have an opening statement.
Mr. Souder. Thank you.
Congressman Deal, our vice chairman of the committee, for
an opening statement.
Mr. Deal. Thank you, Mr. Chairman, for holding this hearing
on one of the most serious problems facing law enforcement in
this country. Our Nation is one that is built on the rule of
law. Throughout our history, we have generally avoided
vigilante justice, mob rule, and the overthrow of government
that has plagued other nations because we've maintained a
system of criminal justice that, despite its imperfections, has
been sustained by the confidence of the American people that
their government can maintain law and order and punish criminal
conduct.
Today we will hear from witnesses who will document a
serious flaw in our system. Although the problem of bringing
criminals to justice within our country is an ongoing battle,
today we will hear from prosecuting attorneys and the widow of
a slain police officer about the even greater challenge of
bringing a criminal to justice when they flee our borders and
find refuge in another country, especially Mexico.
The problem of extradition is certainly one that involves
many nations, but it is primarily a problem with Mexico, a
nation that has millions of its citizens who are illegally in
our country. While many of us are seriously concerned about
Mexico's encouragement of actions that will foster more illegal
immigration, today we will focus on the most serious failure of
the Mexican Government, its uncooperative attitude and policies
relating to the extradition of individuals who have committed
murders, operated major drug activities and other felonious
acts within the United States and have fled to Mexico for safe
haven. These are not crimes committed on our citizens within
the borders of Mexico; these are crimes committed in the United
States and which should be prosecuted in the United States.
Today we will hear about restrictions on extradition
relating to treaty agreements and judicial opinions of the
Mexican Supreme Court, but we will also hear about the legal
barriers that prevent the U.S. prosecutors from obtaining
justice in some of the most serious criminal cases in our
country. Unlike Colombia that expedites extradition of alleged
criminals to the United States for prosecution, Mexico
continues to resist such efforts. Colombia has recognized that
extradition to the United States is one of the most effective
deterrents it possesses in fighting organized drug activities.
By taking the opposite position, Mexico is rapidly becoming a
safe haven for organized crime.
Mexico's refusal to be a good neighbor in the prosecution
of dangerous felons should be the first reason for the United
States to resist expanded immigration rules and an open border
policy. It is my opinion that any country that refuses to
extradite a criminal who executes a police officer in the
performance of his duties on American soil does not deserve to
be given favorable trading status or any other position of
preference in its dealings with the United States. In light of
Mexico's change in position that will not allow the extradition
of anyone facing life in prison without parole, this
administration should immediately renounce the existing
extradition treaty and demand that anyone who enters our
country and commits a serious felony will face the same
punishment as our own citizens would face for the same crime.
It is a double insult to the American people for someone to
enter our country illegally, kill one of our citizens, then
flee across the border and have his government refuse to allow
him to be prosecuted using the excuse that our courts may
impose too harsh a sentence.
Also, it is alarming to learn from the Justice Department's
Inspector General's report of last year that the Criminal
Division's Office of International Affairs has not been as
vigilant as it should be in pursuing extradition cases. This
must be corrected. I recognize that most nations, including the
United States, have reservations about subjecting their
citizens to extradition to other countries where the system of
justice differs from nation to nation. However, there is a
clear difference between a case of a citizen who enters another
country in a legal status, where his native country consents to
his leaving and the host country consents to his entry through
a visa or other immigration program, and someone who enters the
host country without its consent. Many of the cases that
confront our prosecutors fall in the latter category.
I believe the United States should insist that all
extradition treaties distinguish between these categories, and
those who have entered another country without the consent of
that country should always be extradited back to face criminal
charges and should not receive the same protection as a citizen
who entered legally. This should apply to citizens of the
United States who enter other countries illegally as well as
the citizens of other countries who enter the United States
illegally. To do otherwise is to place the country of which the
fugitive is a citizen in the position of ratifying the initial
crime of illegal entry and aiding and abetting the alleged
criminal in the subsequent crime that was committed in the host
country by extending the accused the same protection as other
citizens who travel to other countries in a legal status.
Once again, Mr. Chairman, I thank you for holding this
hearing, and I look forward to the testimony and the proposed
solutions to this intolerable state of affairs.
[The prepared statement of Hon. Nathan Deal follows:]
[GRAPHIC] [TIFF OMITTED] T2899.004
[GRAPHIC] [TIFF OMITTED] T2899.005
[GRAPHIC] [TIFF OMITTED] T2899.006
Mr. Souder. Congressman Ose, do you have an opening
statement?
Congressman Carter, any opening comments?
Mr. Carter. No.
Mr. Souder. I would like to ask unanimous consent that all
Members have 5 legislative days to submit written statements
and questions for the hearing record, and any answers to
written questions provided by the witnesses also be included in
the record. Without objection, it is so ordered.
I also ask unanimous consent that all exhibits, documents,
and other materials referred to by Members and the witnesses
may be included in the hearing record; that all Members be
permitted to revise and extend their remarks. Without
objection, it is so ordered.
Our first panel today is from the administration. We
welcome Mr. Bruce Swartz of the Justice Department, Mr. Samuel
Witten of the Department of State.
It is our standard practice to ask witnesses to testify
under oath. If you will stand and raise your right hands, I
will administer the oath to you.
[Witnesses sworn.]
Mr. Souder. Let the record show that both witnesses
responded in the affirmative.
Thank you both for coming today. And, Mr. Swartz, I think,
if you will start, and you are recognized for 5 minutes.
Mr. Swartz. Mr. Chairman, with your permission, if Mr.
Witten could begin by discussing the overall extradition
program, and I will return to address the problem of Mexico in
particular.
Mr. Souder. OK. We will recognize Mr. Witten first.
STATEMENTS OF SAMUEL WITTEN, DEPUTY LEGAL ADVISOR, LEGAL
BUREAU, U.S. DEPARTMENT OF STATE; AND BRUCE SWARTZ, DEPUTY
ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION, U.S. DEPARTMENT
OF JUSTICE
Mr. Witten. Thank you, Mr. Chairman. Mr. Chairman, and
members of the committee, I am pleased to appear before you
today to testify on the subject of strengthening the long arm
of the law: How are fugitives avoiding extradition, and how can
we bring them to justice? With your permission, I will submit
my prepared testimony for the record and summarize the
testimony here.
The Department of State appreciates this opportunity to
discuss international extradition. The growth in transborder
criminal activity, especially terrorism, violent crime, drug
trafficking, and the laundering of proceeds of organized crime,
has confirmed the need for increased international law
enforcement cooperation, including the essential tool of
extradition. In my testimony I will highlight our efforts to
modernize our extradition treaty relationships and highlight
the key problems we face internationally. Mr. Swartz will
discuss in detail our recent interactions with Mexico, which I
understand is of particular interest to the committee.
Although nations have no general obligation in
international law to extradite, the practice, of course, has
become widespread, and there now exist hundreds of treaties
around the world relating to international extradition. Because
of the many unique national legal systems around the world, no
single set of rules governs the process of international
extradition, and the conditions under which extraditions are
granted and may be granted vary among countries.
The international extradition process inherently involves
the laws of two countries, as the opening statements have
reflected, the country requesting extradition and the country
where the fugitive is located. The process of extradition can
be challenging, time-consuming, and sometimes frustrating. Most
extraditions to and from the United States take place pursuant
to bilateral extradition treaties. In recent years, the State
and Justice Departments have made a concerted effort to expand
and modernize our extradition treaties in order to make the
extradition process work more efficiently and effectively. In
many cases we've replaced older treaties with new, updated
treaties, with improvements such as replacing the list of
extraditable offenses with a more comprehensive regime of dual
criminality. We have also entered into new extradition treaties
with partners such as Philippines and South Korea.
Since 1990, we've negotiated and signed nearly 30 new
extradition treaties that have improved this framework.
Improvements include, where possible, providing for the
extradition of nationals, smoothing the procedures for
extradition, clarifying the standard of proof in extradition,
specifying applicable statutes of limitations, and limiting the
political offense exception to extradition, and addressing
other issues.
At this point we have extradition relationships with well
over 100 countries around the world. Pursuant to this network
of treaties, our requests have resulted in return to the United
States for trial and punishment of persons charged with or
convicted of the widest variety of crimes, murder, terrorism,
white collar crimes, narcotics trafficking, and others. Some of
our recent extraditions have included the extradition from
France of James Kopp, who murdered abortion doctor Bernard
Slepian in Buffalo, NY, and was convicted of murder this year
in New York; Ira Einhorn, who murdered his girlfriend in
Philadelphia and was returned from France and convicted last
year for murder in Philadelphia; and, from Guatemala, of Milton
Napoleon Marin Castillo, who was charged with committing a
double murder in Ann Arbor, MI.
While there have been successes, the existence of an
extradition treaty, even a modern one, does not ensure that all
will always go well. In fact, because of differences in legal
systems, the extradition process is neither simple nor without
frequent delays. Mr. Swartz will go into detail about the
assurances question that the committee has raised; I will just
mention briefly in the time allotted several issues that we are
also working on. One is the issue of extradition of nationals.
The United States asks all of our treaty partners to
extradite their nationals to the United States for crime--or
for punishment as we would extradite our nationals in
appropriate circumstances to other governments. This issue is a
complicated one for many countries, and we have made some
progress, but not as much as we would like. A number of our
treaty partners in Europe and Latin America still cannot
extradite nationals. Our major successes in the most recent
years have been with South America. Our recent treaties with
Argentina, Bolivia, Paraguay, and Peru all provide for
extradition of nationals.
We have made other gains in terms of working with foreign
countries on their domestic laws, permitting them to extradite
where the discretion is given to them. The Dominican Republic
is one example. They have repealed their law prohibiting
extradition of nationals, permitting extradition to the United
States of Dominican nationals on such offenses as murder and
narcotics trafficking. After many years of discussion, both
Mexico and Colombia have been extraditing nationals to the
United States, Mexico under the U.S./Mexico bilateral treaty,
and Colombia under the authority of its domestic law.
And another continuing problem alluded to by the committee
with which Mr. Swartz will deal with is death penalty and life
imprisonment assurances. This has become of particular concern,
as you noted, with Mexico. The Mexican Supreme Court ruling of
October 2001 on life imprisonment has presented major
challenges to the United States and also to Mexican officials.
I can assure the committee that this is a major concern to the
State Department at the highest levels. We continue to strongly
believe and communicated firmly to the Mexican Government that
the Mexican Supreme Court opinion should be revisited so that
our extradition relationship is not subject to this additional
burden. Both the State Department and the Justice Department,
including the Attorney General and Secretary Powell, have
engaged the Mexican Government on this issue. We continue to
press for the Mexican Government to seek the reversal of this
decision and, at a minimum, reduce its adverse impact for as
long as it is in effect.
In summary, Mr. Chairman, we have had some successes in
this area. We face many challenges. Needless to say, the system
of international extradition would work more effectively for
the United States if all nations had the same Constitution,
laws and policies that we do. Of course, this is not the case,
and because this is not the case, our task to which we are
fully committed is to make the process work as smoothly and as
efficiently as possible.
We appreciate the committee's interest in these important
issues, and I will be happy to address any questions the
committee may have. Thank you, sir.
Mr. Souder. Thank you for your testimony.
[The prepared statement of Mr. Witten follows:]
[GRAPHIC] [TIFF OMITTED] T2899.007
[GRAPHIC] [TIFF OMITTED] T2899.008
[GRAPHIC] [TIFF OMITTED] T2899.009
[GRAPHIC] [TIFF OMITTED] T2899.010
[GRAPHIC] [TIFF OMITTED] T2899.011
[GRAPHIC] [TIFF OMITTED] T2899.012
[GRAPHIC] [TIFF OMITTED] T2899.013
[GRAPHIC] [TIFF OMITTED] T2899.014
[GRAPHIC] [TIFF OMITTED] T2899.015
[GRAPHIC] [TIFF OMITTED] T2899.016
[GRAPHIC] [TIFF OMITTED] T2899.017
Mr. Souder. Mr. Swartz.
Mr. Swartz. Thank you, Mr. Chairman.
Mr. Chairman, members of the subcommittee, thank you for
the opportunity to discuss with you today the important issue
of the obstacles we face to our extradition practices in the
United States.
Mr. Witten. Mr. Chairman, is his mic on?
Mr. Swartz. Thank you, Mr. Chairman. As I said at the
outset, let me thank you again for the opportunity to discuss
this important issue.
The Department of Justice, along with the Department of
State is committed, fully committed to the return to the United
States of every fugitive who has broken the laws of the United
States. That is true regardless of whether or not the offense
is a Federal offense, a State offense or a local offense. But,
Mr. Chairman, as you and other members of the subcommittee have
noted, and as my colleague from the State Department has also
noted, we do face serious obstacles to extradition in many
circumstances. Two of those obstacles were mentioned in the
opening statements of the committee, the death penalty and life
imprisonment.
As the subcommittee is aware, many nations throughout the
world now forbid the death penalty. And, again, Mr. Chairman,
as you pointed out, that is a matter that we have had to deal
with for some period of time in our extradition practice. We
have over time evolved a process for dealing with that issue.
Our extradition treaties almost invariably in cases of
countries that forbid the death penalty do not bar extradition
in capital cases, but rather permit the country from which
extradition is being sought to demand assurances that the death
penalty will not be imposed, or, if it is imposed, will not be
executed.
When the United States receives such a request for
assurances, we coordinate closely with the prosecuting
authorities, State or Federal, to determine whether they are
willing to grant such assurances.
While this process is frustrating, it reflects not only the
increasing trend among countries toward the abolition of the
death penalty as a sanction under their domestic law, but the
extent to which those abolitionist views have been extended
either as a matter of law or of policy to refusing to take any
action, including granting extradition that could still
facilitate the imposition of the death penalty by another
country.
The death penalty assurance regime thus for many years has
provided a mechanism for reaching some accommodation of widely
divergent national views on capital punishment, while
permitting extradition and trial of accused murderers to
proceed, albeit at the cost of sacrificing the maximum
punishment for such crimes.
But while over the course of years we have been able to
work with the regime of the death penalty, we now face a
disturbing growth in demands for similar assurances with
respect to life imprisonment or a maximum term of years of
imprisonment. Some countries are now refusing to extradite
fugitives absent assurances from the United States that they
will not face life imprisonment or in some cases even some
other maximum term of years deemed inappropriately lengthy. As
has been discussed, Mexico, of course, requires such an
assurance as a result of a decision of the Supreme Court in
Mexico.
But before turning to Mexico, I must note that there are
other countries who have sought assurances as to sentences of
imprisonment, although for a variety of reasons that we will
discuss today, the problem in Mexico is a more severe one.
Colombia, which as has been noted already this morning is
one of our best extradition partners, seeks an assurance as
well regarding life sentences. But we have been able to arrange
to give assurances that have proven workable in terms of the
nature of the charges that are frequently presented in Colombia
cases. Spain and Venezuela have also sought assurances as to
nonimposition of life imprisonment. And Costa Rica has sought
assurances that neither life nor a sentence in excess of 50
years will be imposed.
I should add parenthetically, it is not only with regard to
the United States that such assurances have been requested.
France, for instance, has received in the past requests for
imprisonment guarantees from Portugal in a case involving a
serious criminal.
These developments are of great concern to the Department
of Justice as well as to the Department of State. We believe
for international extradition to work, there must be a certain
degree of deference to the criminal justice systems and the
punishments of the country seeking return of a fugitive. From
my perspective, to the extent that countries' due process
guarantees are deemed insufficient, the solution is not to
enter into an extradition treaty; rather than to try to
interpret that treaty in a way that prohibits, in essence, the
return of a fugitive.
But, as we have encountered with Mexico, in some
circumstances the issue is presented not by our executive
branch partner, but by the judiciary in other countries. As the
subcommittee is aware, in October 2001, a decision of the
Mexican Supreme Court concluded that life assurances would be
requested--life imprisonment assurances would be requested with
regard to extradition. This has to be seen, of course, in terms
of our larger extradition relationship with Mexico, which has
included increasing number of extraditions in the past years,
including extraditions of nationals for some serious crimes. In
addition, the total number of fugitives returned by Mexico to
the United States well exceeds the total number of extraditions
because, particularly in recent years, Mexico has frequently
exercised its authority under its immigration laws to deport
American citizen fugitives who are in Mexico illegally.
For example, the FBI and the U.S. Marshal Service at our
embassy report a total of 57 fugitives deported to the United
States to date in fiscal year 2003. Among those deported were
Andrew Luster, the Max Factor perfume heir and convicted serial
rapist; Ronald Samuels, who is alleged to have hired three
separate killers to murder his ex-wife, leaving the victim a
paraplegic; and William Edminston, wanted for a $25 million
bankruptcy fraud.
Also on the positive side, our law enforcement agencies
have been able to work more closely with their Mexican
counterparts, including on fugitive cases. Indeed, our ability
to track fugitives, which is the prerequisite for seeking any
return, has been significantly increased thanks to the
Congress's approval in February 2003 for the establishment of a
field office for the U.S. Marshal Office in Mexico City.
But despite these positive developments, the fact remains
that the Mexican Supreme Court's October 2001 decision barring
extradition in life sentences cases has constituted a serious
setback to our bilateral extradition treaty relationship. The
court, notwithstanding the arguments of the Mexican Government
to the contrary, ruled that extradition of a person from Mexico
who faced life imprisonment would violate the Mexican
Constitution's barring cruel and unusual punishment. The result
has been severe. Since October 2001, extradition has been
denied in 19 cases in whole or in part because of our inability
to provide assurances. But the impact goes beyond the number of
cases, since these are some of the most serious cases that we
face.
Finally, even where prosecutors may believe that limiting
the availability of a life sentence is worth the opportunity to
bring a defendant to trial, providing guarantees may prove
difficult in the context of life sentences in a way that is not
the case in death penalty situations. As my colleague Mr.
Witten has pointed out, both the State Department and the
Justice Department up to and including the Attorney General and
Secretary of State have repeatedly engaged the Mexican
Government on this issue. We have made sustained and continuous
efforts to have the Mexicans seek the reversal of this decision
or, at a minimum, reverse its adverse effects. We understand
that the Mexican Ministry of Foreign Relations and the Mexican
Attorney General's Office have filed a petition with their
Supreme Court seeking reconsideration of the October 2001
decision. We will continue to press on this issue.
At the same time, as we have noted already, this is not
simply a question of political will on the part of the
executive branch of the Mexican Government. Our extradition
relationships, unlike the other aspects of our law enforcement
relationships, are not simply executive to executive.
Extradition, because in almost every case it involves judicial
involvement, also involves an independent branch of government.
This complicates tremendously our relations not only with
Mexico on extradition, but other countries as well.
Notwithstanding this, we remain committed to push forward
on this issue, to work with this committee, to work with
Congress generally, and to attempt to find solutions for this.
As my colleague Mr. Witten noted, Ira Einhorn was returned to
the United States after 20 years of efforts on the part of the
Office of International Affairs of the Department of Justice
and our colleagues in law enforcement. It is exactly that
commitment and dedication that we bring to every extradition
case, and we will continue to do so.
Thank you again for your time. I look forward to answering
any questions.
[The prepared statement of Mr. Swartz follows:]
[GRAPHIC] [TIFF OMITTED] T2899.018
[GRAPHIC] [TIFF OMITTED] T2899.019
[GRAPHIC] [TIFF OMITTED] T2899.020
[GRAPHIC] [TIFF OMITTED] T2899.021
[GRAPHIC] [TIFF OMITTED] T2899.022
[GRAPHIC] [TIFF OMITTED] T2899.023
[GRAPHIC] [TIFF OMITTED] T2899.024
[GRAPHIC] [TIFF OMITTED] T2899.025
[GRAPHIC] [TIFF OMITTED] T2899.026
[GRAPHIC] [TIFF OMITTED] T2899.027
[GRAPHIC] [TIFF OMITTED] T2899.028
[GRAPHIC] [TIFF OMITTED] T2899.029
[GRAPHIC] [TIFF OMITTED] T2899.030
[GRAPHIC] [TIFF OMITTED] T2899.031
[GRAPHIC] [TIFF OMITTED] T2899.032
[GRAPHIC] [TIFF OMITTED] T2899.033
[GRAPHIC] [TIFF OMITTED] T2899.034
Mr. Souder. I would like to ask just a couple of basic
questions before we get into some of the meat of the
questioning. One that I am a little confused about, I just want
to clarify--it could be relatively short answers; either of you
can respond. When you say life imprisonment, some of these
countries were 50 years, 30 years, Venezuela was 30, Portugal
20. Is that first sentence, or is that combined? For example,
aggregate.
Mr. Swartz. Mr. Chairman, as to some of those countries,
that is the aggregate sentence. That is, that person cannot be
sentenced beyond that term of years.
Mr. Souder. And do the extradition treaties vary by, for
example, if it was a U.S. citizen hiding out there like
Einhorn? And what if they had been hiding--first off, if it's a
U.S. citizen that flees across the border--let me give you a
couple examples. A citizen flees across the border; clearly, a
U.S. citizen only. A U.S. citizen flees across the border,
stays in, say, France for an extended period of time, gets
citizenship there, becomes dual even though the reason they
became dual is they fled the United States. A third would be an
illegal resident in America who therefore is a national of
another country who commits a crime here, say a murder, and
flees back to, say, Mexico or Colombia. A fourth would be what
many people are, are dual nationals; in other words, they could
be a citizen in the United States and a citizen of Venezuela,
of Colombia, of Mexico. Could you kind of go through a little
bit how the extradition treaties vary in those different
classes?
Mr. Witten. Mr. Chairman, our treaties typically don't
distinguish between the responsibilities of the state with
respect to extradition of nationals except insofar as some of
our treaties do have language that permit the executive
authority of the requested state--that is, the state where the
fugitive is located--not to extradite its nationals. In some
cases, the language varies, so it's more or less discretionary
on the part of the request of state; in some cases it's more
mandatory on the government than not.
Where the nationality does become very relevant would be,
for example, Mr. Swartz mentioned some of the deportations.
Extradition is obviously very important, and it's a way that we
get lots of fugitives from countries around the world, but
quite a few countries do have flexible immigration statutes. So
Mexico, for example, was able to send Mr. Luster back over the
last several months to the United States, not through a formal
extradition process involving judicial challenges and appeals
and so forth, but through their immigration process. That's one
way that the treaties were distinguished.
You gave the example, Mr. Chairman, of a fugitive fleeing
one country, becoming a national of the other. I think the
extent to which that country would view that person as its
national would probably vary. If you will remember, in the
Scheinbein case--this is the famous case several years ago
where the fugitive left Montgomery County, MD and went to
Israel--there was extensive litigation within the Israeli
judicial system about whether at the time the murder was
committed Mr. Scheinbein was a national of Israel. And at our
request, the Israeli Government litigated affirmatively that
said that he was not entitled to the protection of Israel's
nationality law. And in a split decision, the Israeli Supreme
Court ruled that there was sufficient contacts with Israel to
permit the Israeli Government--or to require the Israeli
Government to withhold extradition.
So it becomes a very case-by-case basis, depending on the
national laws of the country involved and what other options
might be available by way of working outside of the extradition
process.
Mr. Souder. Mr. Swartz, did you want to comment?
Mr. Swartz. I would add simply that, Mr. Chairman, under
some circumstances, regardless of the nationality of the
fugitive sought, the country may require the same type of
assurances before the individual is returned. Einhorn would be
an example of an American citizen as to whom the death penalty
assurances were sought.
Mr. Souder. From my visits in Central and South America, it
seems to me, though, the intensity is a lot greater on
nationals.
Mr. Witten. The issue of extradition of nationals, this
hemisphere is split. In South America, there are several
countries that have abandoned the protection of nationals that
we have mentioned, Peru, in my testimony and some--Peru and
Paraguay, for example. In some cases in Central America,
typically nationals are not extradited under the domestic
Constitutions or laws of the respective countries. Mexico, as
we mentioned, does extradite its nationals. Dominican Republic
does. In Europe, typically the countries--civil law countries
do not extradite their nationals.
Mr. Souder. I'm going to yield, if it's OK, to Ms. Norton
next, because she had a time problem.
Ms. Norton. I want to thank Ms. Sanchez for allowing me to
go out of turn. I'm ranking member of a committee that will be
meeting shortly.
I have some questions particularly involving the
complications here between international law and criminal law,
and I understand the difficulties you have.
Victims here want justice. I am just amazed at the Einhorn
case and how long it took to get the kind of justice, always
relative in international terms, it seems to me you could have
gotten 20 years ago.
Let me ask this question. Our criminal laws are
particularly harsh when measured by other democratic countries.
You say many countries don't have the death penalty. Most
countries don't have the death penalty. I do understand that we
are negotiating against a world consensus on issues like that.
I'm puzzled by your notion, one of you talked about the,
``inability to provide assurances.'' Revisit the Mexican
Supreme Court decision, we would like them to revisit that
decision. You know, I try to think we are dealing with
sovereign nations. Hey, revisit the Supreme Court decision of
the United States. I tell you one thing, there are a number of
Supreme Court decisions of the United States I would like to
see revisited. And when my country in response to another
sovereign nation asks that, then I will understand how
reciprocity works here, because I don't see reciprocity here.
We are dealing in other countries with things that are
sacrosanct to us, their Constitution, where you know good and
well there is no ability on the part of the Supreme Court or
any other court to change what the law requires. We are not
dealing with legislative changes. We are dealing with sovereign
nations which have independent judiciaries, which are something
we prize more than we prize anything else in our Constitutional
system. We are dealing with publics who feel as strongly about
their sanctions as we do about ours; for example, about the
death penalty, to take an example.
Now, let me ask you a question based on a real case. The
Einhorn case, and the notion that we kept that family waiting
almost a quarter of a century is outrageous. And why did we
keep them waiting? Because in a case where it was as almost as
clear as any case you have seen that this man was guilty,
apparently we were unwilling to negotiate the question of the
death penalty. What happened finally? We finally did negotiate
that question; Einhorn came back here; he's convicted.
I don't know if these decisions are made by individual U.S.
Attorneys, the main Justice gets into it, if there are
negotiations between our State Department and our main Justice,
but I would like some insight into the process you go through.
I'd particularly like to know, if you are seeking justice for
victims here, why you don't negotiate with sovereign nations
knowing full well in many of these cases that there are not
changes they can make any more than there are changes you can
make in our own country; why we are insistent, for example, in
death penalty cases that, I'm sorry even in the Einhorn case,
we are going to keep you waiting for two decades. Why not
simply negotiate, bring back, get some measure of justice for
these victims? And what is the process you use, and why does it
take so long, particularly when you fold, as you ultimately did
in the Einhorn case?
Mr. Swartz. Thank you.
The issues that you have raised do go to the heart of the
problems we face in this regard. As you note, we are dealing
with sovereign nations, and frequently, as I noted in my
opening statement, with the judicial systems of sovereign
nations rather than the executive branch. Notwithstanding that,
we have found over the years that by continuous discussion with
the executive branch of other countries, Mexico being one, it
is possible to present, not in a way that suggests that they
have to adopt our system, but in a way that suggests that there
are things to be learned from our system, approaches that we
believe are appropriate, including, as an example that my
colleague noted, the extradition of nationals, an issue that we
have pressed repeatedly in our treaties, and in some cases we
have led other countries to change their Constitutions.
Ms. Norton. Did you really think in the Einhorn case that
his open and notorious living in France that you were going to
be able to get France to do something about the death penalty?
Mr. Swartz. No. In the Einhorn case, as you note, there was
extensive delay. Part of that delay, of course, was simply
locating Mr. Einhorn. He had been successfully--he fled
apprehension and had evaded our detection. When he was located
in France in 1997, the issue was not simply the one of the
death penalty, but, as you recall, the trial in absentia. And
as a result, there needed to be legislation in Pennsylvania
that made it possible for him to be retried. That was the
critical issue.
As to the broader question you raised, and a very serious
one, as to how the decisions are made as to whether or not
assurances should be given, that is a matter that is primarily
in the hands of the local prosecutors or the Federal
prosecutors as the case may be to consider what the various
options are.
Ms. Norton. Is it the local U.S. Attorney or is it main
Justice?
Mr. Swartz. Well, we certainly consult in the case of
Federal cases with the U.S. Attorney as to the various options
that are available, and we provide, again, the same advisory
service for the local and State prosecutors that face this
issue. In the final analysis, the decision has to be made,
unless it's a case, of course, being prosecuted by the main
Justice Department, as to a weighing up of these factors.
Usually we are able to reach a common view. But, as you say, in
some circumstances, certainly in the death penalty context, it
is well recognized now that in most cases we will have to give
a death penalty assurance if we hope to have the individual
extradited. That does not rule out the possibility that we
might be able to apprehend the individual in another country or
have the individual deported. So there are factors to be
weighed.
Ms. Norton. Thank you, Mr. Chairman.
Mr. Souder. And I think it's important to point out for the
record here, we are not talking about changing the laws of
other countries in their countries; we are talking about
whether American law can be enforced--whether American citizens
are going to be subject to different laws of the United States
than those who have fled our country and noncitizens being--
having the same laws applied to them. And it's a very difficult
international question, but it's a question of whose
sovereignty applies when it happens on your soil.
Judge Carter.
Mr. Carter. Thank you, Mr. Chairman. I have a limited
amount of experience with Mexican justice, having gone down in
either 1978 or 1979 to try to get two U.S. citizens out of a
Mexican jail in Puerto Vallarta, Mexico. The jail clothes that
they wore in that jail were their underwear, the prison cell
was a courtyard the size of this room with an open sewer in the
middle, and the bath was a fire hose that was squirted on them
once a day. And so I can understand why they would think that
50 years in prison would be cruel and unusual punishment. We
really felt like 30 days in that jail was cruel and unusual
punishment.
There is a difference. Mexico, for instance, does not have
habeas corpus rules. You can be held indefinitely in Mexico
prisons without the right of talking to counsel, nor without
any right to bond.
So to compare American justice with Mexican justice is a
strange comparison, in my opinion. And I personally experienced
and witnessed that, and I can tell you that that's cruel and
unusual punishment.
And as we negotiate, does anyone ever negotiate in light of
our prison standards of our United States? When we talk to
these folks about their policies on extradition, do we also
present to them our prison standards? Because I'm fairly
confident that our prison standards are at least better than
any in the Central and South America, certainly equal to those
that are in Europe. Is that ever any part of the negotiation
process when we are looking at these things?
Mr. Witten. In the course of negotiating an extradition
treaty, we would have a general discussion of all aspects of
the legal, judicial, penal systems. The issue of the conditions
of confinement in another country would come up in a particular
context I should highlight for you.
We have noted that we have 100 and some extradition
treaties at this point. There are a number of countries with
which we don't have extradition treaties because these are
reciprocal treaties, and they would require us to extradite
into a foreign government's judicial and penal system. In some
cases we haven't negotiated a treaty just because in the triage
of things it's more important to update the U.K. Treaty or
Canada treaty where there is lots and lots of fugitive traffic.
The conditions of confinement could certainly be a factor and
have been a factor in some cases where we have considered
whether we are comfortable entering into an extradition treaty
with a foreign country.
When we enter into an extradition treaty with a country
that has prison conditions that aren't as up to the U.S.
standards, which as you indicate would be common, the treaty
itself wouldn't contain language on that because it's not a
framework to dictate within the context of the treaty what the
judicial system, the penal system would be, but certainly it's
a part of the general discussion. And in cases where we have
worked affirmatively with other countries to upgrade their
legal-judicial-penal systems, it certainly would be a part of
the bigger picture.
Mr. Swartz. If I might add as well, in this particular case
involving Mexico and the Supreme Court's decision, the
Mexicans' report relied not on our prison conditions, but
rather on the notion that a life sentence was impermissible in
any set of circumstances since it allegedly did not recognize
the possibility of rehabilitation. For that reason, we have
been able, working with the Mexican Government, to establish
that in cases where we can establish that parole is a
possibility even under life sentence circumstances, we have
been able to secure extradition. But I should stress that our
Mexican executive branch counterparts have not suggested that
this has anything to do with our prison conditions and, indeed,
argued strongly against the decision of the Mexican Supreme
Court.
Mr. Carter. And it is the--only the life without parole
situation you are talking about. For instance, in Texas a life
sentence or any amount of sentence above 60 years is 60 years
for the basis of parole. And so the ploy of the prosecutors is,
don't give him life, give them 60 years, which is life. It's a
lack of parole that's the issue.
Mr. Swartz. And, in fact, we have been able under some
circumstances such as that to have been able to secure
extradition, formalistic as it may sound. Even lengthy terms of
60 years, we believe, are permissible and would be a basis for
extradition. The problem we face is that the sentencing
structure of many States in particular require either life
imprisonment or death as the punishment for particularly
serious crimes. So with that structure in place, and without a
parole system in place, and the Federal Government no longer
has a parole system as well, we don't have the flexibility that
might be in place in Texas or other States.
Mr. Carter. I know my time has expired, but may I ask one
more question, Mr. Chairman?
Mr. Souder. Yes. Go ahead.
Mr. Carter. Do you request that they be held by Mexico, for
instance, until the process of extradition is completed; in
other words, be incarcerated until they have completed the
extradition process? Is that request routinely made?
Mr. Witten. Yes, sir.
Mr. Carter. Then it would be cruel and unusual punishment
just to spread out the hearing, I promise you. Thank you.
Mr. Souder. Mr. Ruppersberger.
Mr. Ruppersberger. First, a couple things. The issue
really, the biggest problem we have, I think, basically from
the testimony is with Mexico. And it seems to me that it's the
issue of their Supreme Court, and their Supreme Court is
overriding anything that is being done in the legislative or
with the administration. Are we doing anything--maybe more from
a State Department point of view. What are we doing to try to
overcome that? Are we getting anywhere? What tactics are we
using? Do we have any leverage at all with respect to that
issue?
Mr. Witten. Mr. Swartz will supplement, but the United
States is working in closely with the executive branch. The
executive branch of the Government of Mexico would like to see
this decision reconsidered. As we understand it, the equivalent
of the Justice Department of Mexico has filed with the Supreme
Court a formal request that this decision, which was an
interpretation of the Constitution, be revisited. So, yes, we
are working closely with them. And the State Department and
Secretary Powell has raised this issue. Our Ambassador to
Mexico, Ambassador Garza, has raised it repeatedly. And Mr.
Swartz will indicate that the Justice Department is not only
raising it at the Attorney General level, but actually working
hand in hand with the Mexicans in connection with revisiting
this.
Mr. Swartz. And in that regard, thanks again to the funding
that Congress has provided, we do have a Federal prosecutor
that works out of the U.S. Embassy in Mexico City that has been
working on this issue. In addition to seeking rehearing, we, as
I noted, have tried to think of ways in which we can deal with
this issue insofar as the Court opinion remains as it now
stands, including dealing with the issue of parole, making that
point that parole is a sufficient basis even where a life
sentence is imposed, and working with their foreign ministry
which controls the extradition process in certain respects to
ensure that courts, lower Mexican courts, do not invoke this
principle in inappropriate cases.
Mr. Ruppersberger. What's the history of that Supreme
Court? Is it just traditionalist? Has it any ties to
unfavorable individuals? What's the background? And we can talk
about this all the time. Are the courts pretty strong in their
positions? Where are we with respect to that? Or do you not
want to get into that, probably?
Mr. Witten. Mr. Ruppersberger, we don't have that kind of
detailed information about the makeup of the individual judges
on the Supreme Court. We do know that this decision was not
anticipated by the Mexican Government when it was reached. We
know that they are working closely with us to try to have it
revisited, but we don't have any basis to make any further
judgments about the particular judges involved and so forth.
Mr. Swartz. I should add as well that the Mexican Supreme
Court, in a decision favorable to the United States in January
2001, shortly before the decision we've talked about here, made
clear that nationals, citizens of Mexico, could be extradited
to the United States, clarifying an issue that had blocked some
of our prior extraditions. So it has been a mixed series of
results from the Mexican Supreme Court.
Mr. Ruppersberger. Other than Mexico, what other countries
do we have issues with? Are there any other countries that have
this same requirement as far as life imprisonment or death
penalty?
Mr. Witten. Yes. Mr. Ruppersberger, there have been quite a
few cases, particularly in Europe, France, Germany, in other
countries that have abolished the death penalty domestically.
But also, their judiciaries or other appropriate authorities
have interpreted their Constitutions or other fundamental law
as precluding the ability of their executive branches to
extradite to a system where capital punishment is possible.
Mr. Ruppersberger. We are in a new era; and not only do we
have a lot of issues with respect to drugs, but also with
respect to terrorists. So it seems to me that there is going to
be a lot of activity in this regard. What about some of the
countries where we might have issues with respect to terrorism?
Are there any countries now that are out there where we might
have some problems you could address?
Mr. Swartz. In terms of the death penalty, that issue will
remain even with terrorism cases. We have certainly seen in
occasions that we will be required to give death penalty
assurances even in terrorism cases. So that is a continuing
issue.
With regard to life imprisonment assurances, while we have
seen that, not simply from Mexico, but, as I noted in my
opening statement--but from other countries such as Colombia,
Venezuela, Spain, the issue has not come to the fore so much in
those countries simply because of the volume of Mexican cases
and the proximity to the border between the United States and
Mexico.
Mr. Ruppersberger. OK.
Mr. Souder. Will you provide the committee with a list of
countries and number of pending cases that are stalled, not
pending cases that are moving through, so we can get some kind
of scale of which countries?
And then you said in Colombia, I believe, that they are
looking at making some changes in their Constitution?
Mr. Witten. I can't hear you.
Mr. Souder. That in the case of Colombia, you said they are
looking at a Constitutional change there, so you could note
that. But if you could give us like with Mexico, Spain,
Venezuela, how many cases of extradition are stalled, not how
many do you have out there that are working their way through a
normal process.
Mr. Swartz. Mr. Chairman, certainly----
Mr. Souder. And you can submit that for the written record.
Mr. Swartz. Yes. It was with particular focus on countries
in which there have been assurances requested with regard to
life imprisonment, or in terms of years?
Mr. Souder. Extradition requests that are stalled. In other
words, if they are in the process, and they are moving through
on a normal basis, we don't need to know how many extradition
requests we have outstanding. And then we can zero in on how
much of this is Mexico, how much of it is other places, what
other countries there are. You have hit the high ones here
today, I assume.
Mr. Swartz. Certainly. We will certainly attempt to do
that.
One of the issues, of course, in terms of stalling is, as
the subcommittee is well aware--is that the judicial process
themselves oftentimes permit a defendant in many countries, and
sadly to say in the United States as well, to delay his or her
execution.
Mr. Souder. By stall, I should say policy stalling as
opposed to--in other words, not something that is playing out
its normal course as anything would play.
Mr. Deal.
Mr. Deal. Thank you, Mr. Chairman.
I would like to ask at the outset, in the 100 or so
treaties that we have negotiated with other countries, does the
United States put a reservation in those treaties that we will
not extradite U.S. citizens back to another country under any--
or do we put any conditions on that?
Mr. Witten. The United States has, as a matter of policy
through its history, extradited U.S. nationals to other
governments, and our treaties come in several varieties on the
extradition of national points. One of them would be that the
executive branch of the requested state may in its discretion
deny extradition if required by its laws to do so, and that
would be a typical European-type framework.
Mr. Deal. No. I'm talking about from the U.S.' point of
view. Do we not, in fact, make our citizens subject to
extradition back to these countries under almost--with almost
no conditions attached, whereas they put conditions on the
extradition back to our country?
Mr. Witten. The United States does extradite its nationals
under these treaties, and we advocate that all countries do so.
Mr. Swartz. Mr. Congressman, it is the case, however, that
in some circumstances the United States has reserved the right
to seek death penalty assurances itself with regard to
extradition of citizens or others from the United States.
Mr. Deal. But that would only be in cases where their law
provides a death penalty and ours would not for the same
circumstances. That's traditionally been the Far Eastern
countries; has it not?
Mr. Swartz. That is correct.
Mr. Deal. Where their sentences are harsher than ours.
Mr. Swartz. That is correct. But, yes.
Mr. Deal. So, let me give you a hypothetical that would
hopefully never, ever happen, and forbid it to happen. A
Mexican national comes illegally across the border of the
United States, assassinates the President of the United States,
and retreats to Mexico. Am I to understand that, under the
current state of affairs with Mexico, that individual could not
be extradited back to the United States to face a capital
felony punishment, nor could he be extradited back unless we
would give assurances that he would face a sentence of less
than life without parole? Am I correct?
Mr. Swartz. Yes, Mr. Congressman. Unfortunately, under that
hypothetical he would not be extradited without a death penalty
guarantee, which would be true in many circumstances in many
countries across the world, with the added problem that there
would also be a life imprisonment assurance requested.
Mr. Deal. What has happened with Mexico, then, is that the
original treaty between the United States and Mexico has now in
part been abrogated by this Supreme Court decision of the
Supreme Court of Mexico by placing these additional conditions
on it; is that correct?
Mr. Swartz. Mr. Chairman, as has unfortunately been the
case in other countries where judicial decisions have been
rendered, the treaty has, to this extent, been altered. That
is, the United States now has to find, if it wants to extradite
these individuals, some means of providing assurances that are
now, according to the Mexican Supreme Court, required by the
Mexican Constitution.
Mr. Deal. In a few minutes we will hear from the widow of
Officer March, who was literally executed by a career criminal,
illegally in our country, who retreated back across to Mexico
and has been refused to be extradited back to the United
States.
Now I would like to hear publicly the explanation from our
State Department and the Department of Justice as to why the
state of affairs, which in my opinion is intolerable, has been
allowed to continue and what your proposed solutions are.
Mr. Witten. Mr. Congressman, as our testimony reflects and
as my comments reflected, the State Department and the Justice
Department share your view that this situation must be
corrected. Because it is a judicial matter, we are working with
the Mexican executive branch to see if this decision will be
revisited. There is currently at our request and at the request
of the senior officials of the Government of Mexico, a petition
to reopen this issue. It was an interpretation in October 2001
of a Constitutional provision of the Mexican Constitution. And
we totally agree that this decision should be reversed.
Mr. Deal. Is the man being incarcerated while these
decisions are being reviewed, or is he running free?
Mr. Swartz. My colleagues note that there is not yet a
request for extradition that has been made in this case.
Mr. Deal. So there is no process whereby, short of asking
for extradition, that we could request that the individual be
arrested and held pending that decision; is that correct?
Mr. Swartz. Provisional arrest is usually preceding to an
extradition request. I should add, if I may, Mr. Congressman,
that we fully recognize the human dimension of this and the
tragedy involved and we would like to extend our condolences,
if I may, to the widow of Deputy Sheriff March. The reason that
we pursue these cases, I want to make clear, is not simply
because it's our job but, we recognize, bringing these people
back to justice. Your frustration is our frustration in this
regard and it is a frustration shared by our colleagues in the
executive branch of the Mexican Government as well. We are
trying to think through what kind of solutions we can have
here, assuming the decision is not reversed on the hearing.
Mr. Deal. Well, I think as both of you recognize, we can
talk about the Ira Einhorn cases all we want to. Those are the
rare cases that get the publicity. We're going to hear from
witnesses in just a few minutes of--in my small county in north
Georgia--of some four separate murder cases, including a
driveby shooting at the local Burger King where they fled back
across the border.
The problem is the magnitude of the number of cases coming
out of Mexico. And as you probably will know and these
prosecutors will tell you, they don't have the resources to
pursue these cases by way of extradition. And what is the
process, the Article 4 trial process, whereby everything has to
be transcribed and shipped to Mexico and they will have a
trial? And is that a preliminary to even deciding to extradite?
Do you have to go through that first?
Mr. Swartz. No. That is the alternative.
Mr. Deal. That is the alternative, where they don't
prosecute if we were to decide to let them prosecute. And if we
let them prosecute, we are bound under double jeopardy
provisions from ever retrying that individual, even if they
come back in our country; is that generally true?
Mr. Swartz. Only California has the prohibition against
retrial, but our view would be aside from that situation, as
different sovereigns we could retry the matter.
Mr. Deal. It is my understanding that Mexico is requiring
as a condition for proceeding with the Article 4 trial that we
agree, regardless of what the state law might be in the
jurisdiction where the crime was committed, that we agree as a
condition for that going forward that there would be no
retrial; is that incorrect?
Mr. Swartz. We would have to check on that.
Mr. Deal. I am very concerned that the magnitude of this
problem is such that most local jurisdictions can never handle
it on their own. Has there been any suggestion that the
Department of Justice be beefed up in a greater magnitude to
assist these local jurisdictions who are the primary
prosecutors in most of these cases, to assist them in
facilitating extradition requests? A small county would be
bankrupted. If we were to pursue extradition in just one of the
four cases, we're going to hear from one of the witnesses in my
county, it literally would jeopardize the possibility of
bankrupting my county's treasury to pay for that. Has there
been any suggestion that Congress needs to do something to
assist the Justice Department in that regard?
Mr. Swartz. I am pleased to say that Congress has acted in
this regard to increase funding for our Office of International
Affairs which is the critical component in this regard. You
noted in your opening statement there had been criticism in a
prior Inspector General's report. I am pleased to say that
report has now been closed, with the acknowledgment that we
have made significant changes. And it is largely to my
colleagues here, the Director of the Office of International
Affairs, Molly Wurlow, and Mary Rodriguez who handles the
Mexico account--and I can say handles it really tirelessly--to
try and push this forward.
Certainly we are there not simply for Federal cases but for
State and local cases. As a result of our experience, we have
tried to think through additional ways in which we can be of
service to State and local offices and try to expand that
relationship. As you know, in the past, we have had on occasion
State and local prosecutors at the Office of International
Affairs. Funding issues precluded that program from continuing.
We do have training programs that are open and that we have
tried to extend to State and local prosecutors. And we are now
thinking through how we can create a network in the
jurisdictions that have these cases that communicate with our
office regularly, where we can keep them updated on these
issues.
Mr. Deal. Thank you, Mr. Chairman.
Mr. Souder. Ms. Sanchez.
Ms. Sanchez. Thank you, Mr. Chairman.
Obviously the problem that we have been presented with
today is complex and it again stems from the idea of sovereign
nations and their proper constitutions and their judicial
interpretations of those constitutions. And it is a problem,
clearly, in a number of very serious cases. I just wanted to
ask for clarification. I am correct in saying that extradition
in this particular case, the March case, there has been no
request for extradition? Is that correct?
Mr. Swartz. That is correct, because we have to work
through these various issues.
Ms. Sanchez. So there has not been an official request for
extradition to the United States for him to stand trial. Short
of extraditing folks for crimes that carry the maximum
penalties in the United States, is there a mechanism for
perhaps extraditing folks to stand trial for crimes that may
carry a term--consecutive terms of years? Might that not be
one, albeit not perfect solution, but way to try to increase
the number of folks that are extradited back to the United
States?
Mr. Swartz. Yes, Ms. Sanchez. That has been the process--we
have been able to succeed with regard to Colombia which
requires life assurances. We have been imposing lengthy terms
of years. But again, the problem is in large part driven by the
nature of the crimes and where State and local governments, or
even the Federal Government, have no option but to charge a
death penalty or life imprisonment, it becomes much more
complicated.
That suggests that there may be legislative fixes. There
are sometimes circumstances in which prosecutors can think
creatively about a different charging scheme. And as I
mentioned, in States that have parole, there is also an option
to say--even with an extremely lengthy sentence, which in
essence a life sentence--as long as there is the possibility of
parole, extradition may be possible.
Ms. Sanchez. So that avenue is available, sort of a
creative solution to the problem. In terms of our executive
branch and our President who has the power to negotiate these
treaties, to your knowledge, is there anything being done by
our executive branch in the form of President Bush in terms of
discussions or work through diplomatic means or the Justice
Department to try to work through this problem with the Mexican
department?
Mr. Witten. Secretary Powell and Attorney General Ashcroft
have discussed this and corresponded about this repeatedly with
counterparts in Mexico. And Ambassador Garza, as its
representative to Mexico, has discussed this, as I understand
it, with everybody from President Fox to the Cabinet officials
that are the counterparts to our State and Justice Departments.
Ms. Sanchez. So those discussions are ongoing?
Mr. Witten. Yes.
Ms. Sanchez. There has not been an acceptable resolution to
the problem. Thank you. I yield back the remainder of my time.
Mr. Souder. Did you say that in Mexico they have the
ability to do consecutive sentences like Colombia, or they do
not?
Mr. Swartz. My understanding is that in Mexico a sentence
even up to 60 years may be a permissible sentence simply
because it is not in terms a life sentence.
Mr. Souder. Can you have multiple sentences?
Mr. Swartz. I would have to check on that, Mr. Chairman.
Mr. Souder. Mr. Bell.
Mr. Bell. Thank you, Mr. Chairman, and thank you all for
your testimony. Representative Deal was talking about the
magnitude of the problem. I wanted to get a little firmer
handle on just what the magnitude is. Actually I was not here,
I think you all may have talked about the number of cases that
we face right now. Do you all have that number?
Mr. Swartz. In Mexico, Mr. Congressman, we have had 25
fugitives extradited this year--in 2002--which was a record. To
date we have had 23 extradited. But critically we have had 19
refusals on the life assurance issue either because we couldn't
provide the assurance or because the assurance was found to be
inadequate.
And as I mentioned in our opening statement, those numbers
don't totally capture the problem because while the number of
people extradited has been important and these are important
cases, some of our most serious cases are among the 19.
Mr. Bell. And those are just the numbers with Mexico,
correct?
Mr. Swartz. Correct.
Mr. Bell. As far as with other countries, France or
Germany, much smaller numbers?
Mr. Swartz. That's correct. Overall I believe it has been
266 fugitives in the last year returned to the United States.
Mr. Bell. And if you were trying to look at a growth
pattern for this particular problem, has it gotten worse in
recent years, more people fleeing, or is it staying fairly
consistent over the last 5 to 10 years?
Mr. Witten. The problem--I mean over the years, the problem
has grown with the growth of transnational crime. With Mexico
these issues have become blockbuster issues. The extradition of
multinationals was a huge bilateral issue into the late
nineties and into this year. And we have had few successes in
the mid-nineties, for example, in terms of returns of Mexican
nationals. The January 2001 Supreme Court decision facilitated
that so we had a bump up in extraditions from Mexico.
In terms of absolute numbers, in terms of over the years,
we could certainly put together numbers dating back several
years at least on the growth of our extradition request. I
think there has been some growth over each of the last several
years.
Mr. Swartz. And as my colleague points out, it is certainly
the case that as crime is increasingly transnational and as
crimes can be committed remotely, without entering the United
States, we fully expect this to be a problem that increases
rather than decreases.
Mr. Bell. How long have we been engaged in negotiations
with the Mexican authorities to try to change their extradition
policy?
Mr. Witten. Well, it's a continuous process with such a
busy relationship. As I mentioned, in the nineties--that was
before this life imprisonment decision came down in January
2001--a huge amount of our dialog with Mexico dealt with
Mexican nationals, because they typically would not extradite
their nationals absent extraordinary circumstances. The Mexican
Supreme Court liberalized that in January 2001. And the
executive branch of Mexico now has much greater flexibility
than it did before that ruling. So now that issue is somewhat
better and now we have a new, harder issue in a way--not
harder, but different issue, and that is life imprisonment
without parole. And it's continuous.
Mr. Swartz. We have worked with Mexico since the date of
that decision in October 2001 to try and see what can be done
about it.
Mr. Bell. In terms of trying to change the policy, is it
your opinion that we're on the right track or can greater
pressure be brought to bear on the Mexican authorities?
Mr. Witten. Well, the posture now is we can be--it's hard
to say how optimistic it's realistic to be. We know their
executive branch is trying to get this October 2001 decision
revisited. They disagreed with it at the time it came down.
They argued against it in the pleadings.
It's hard to tell, Congressman, because as was noted by
several members of the committee and by us, the Mexican Supreme
Court is independent of the executive branch. They interpret
the Constitution. It's not merely a matter of interpreting an
act of their legislature. They interpret the Constitution in a
way that is not favorable to extradition of life imprisonment
without parole. So our hope is that the Supreme Court accepts
the executive branch's ruling. And right now we're in a wait-
and-see period. And in the meantime, Mr. Swartz and his many
colleagues at Justice are working with Federal and State
prosecutors to cope and do the best we can until the situation
is clarified.
Mr. Swartz. Even if the decision at the Supreme Court
proves to be unfavorable, as Mr. Witten noted, we will try and
find alternatives. But we recognize in the context of
extradition of nationals that it's an issue that we will
continue to push. Even in countries--with all due respect to
their sovereignty--that have Constitutional bars on extraditing
of nationals, we continue to present in a manner we believe
respects their system, the importance of moving forward on
that, and we will continue to press the importance of this
issue.
Mr. Bell. Basically since it's a court decision in Mexico
and not a political decision in Mexico, it's very difficult to
bring pressure to bear and get them to change the decision.
They're going to have to work it through their court system; is
that correct?
Mr. Swartz. That's correct.
Mr. Souder. It's important for the record to point out that
the 19 cases, while very severe, is nothing. In other words,
the Los Angeles--as I pointed out, the Los Angeles District
Attorney's Office says he has 200 murder suspects that have
fled to Mexico. Doesn't mean that they are pending extradition,
but it does mean, in fact, people are increasingly realizing
that the lack of extradition means that it is relatively safe
to kill policemen in the United States and relatively safe if
they can get across the border.
This committee has held multiple hearings on the southern
border. Congressman Deal and I spent 3\1/2\ days on the Texas
border. And we could see all kinds of groups moving back and
forth, the water littered with inner tubes where people had
stacked up as people moving back and forth across the border.
When we did a hearing in southern Arizona, you could see
multiple groups, totally unintimidated by the Border Patrol,
walking back and forth across the border. One guy had done it
two times a year for 8 years, probably walking to a job in
Indiana, because we really haven't worked out our legal
residency type things. But our borders are extremely porous.
And if indeed people can figure out that they aren't going to
be held accountable and even put in prison in these other
countries if no request has been made, that we have a gigantic
problem.
Furthermore, this committee has been told by multiple
prosecutors, in addition to the Los Angeles District Attorney,
that they don't bring it up anymore, because as Congressman
Deal pointed out, in Georgia that case probably isn't showing
up as an extradition case because they know nothing is going to
happen.
Then we have this double standard that if an American
citizen kills a policeman, if an American citizen does
something, they have a totally different legal standard in
America, that if you can somehow get to Mexico afterwards--
which is unfair to those who actually try to become legal
residents in the United States, become American citizens, it
means their liability is different than somebody else.
And this is a huge dilemma. Because if in fact these
nations don't change some of these extradition policies, what
it means is we have to watch our border going both directions,
because we will have no choice down by Los Angeles or in other
parts but to look at the people going back the other direction
to make sure they aren't fleeing crimes in the United States.
And if they're not on a watch list in the United States, then
we have a double border problem, because we can take action
here in the United States if in fact we can't work it out with
other countries, but it would cripple our economy to do so.
And both of us need to understand, the United States and
Mexico, that we have an incentive to try to work these policies
out whether or not it's in the Constitution or whether or not
some judge decided something, because our nations are so
interactive right now, particularly along in the border. But in
Indiana or Georgia, we wouldn't have our industries functioning
if we didn't have some kind of flexible border.
But to the degree that people think they can commit
terrorist acts in the United States and kill American citizens
and somehow get off just because of this lack of an extradition
treaty, we have a huge problem. This isn't just a little
problem; because, as we are increasingly finding, some of the
terrorist risk people are also moving through the Bahamas,
Mexico, and other places where we don't have as much Border
Patrol as we have at our airports or other things like that.
Mr. Swartz. Mr. Chairman, I couldn't agree more. This is a
tremendous problem. And as you say, the 19 doesn't fully
capture in terms of the number of cases, many of which have not
been brought. We have more than 300 extradition cases. But
beyond that, as you note, in many circumstances the decision
has been made that it does not make any sense to try to seek
extradition at this time. Perhaps we will locate the individual
back in the United States or there will be some other means of
obtaining the defendant.
But we have, exactly along the lines you suggested, pressed
with Mexico that they do not themselves want to become a safe
haven for these individuals because these people will be
committing crimes in Mexico as well. I think our executive
branch counterparts recognize that. But as we've discussed
earlier, it's one of the issues we'll continue to press, no
matter how the Supreme Court decides this issue in Mexico.
Mr. Souder. Any other questions or comments? Mr. Deal, do
you have any?
Mr. Deal. Yes, Mr. Chairman. I did not want us to leave the
impression that the response to Mr. Bell's question of the 25
that were extradited is anywhere close to the number. And I
believe you indicated just a minute ago you had some 300
extradition requests. You obviously have made significant
progress because the IG report of 2002 indicated there were
2,500 outstanding extradition cases. Am I to understand that
you have now eliminated that 2,500 number down significantly?
Mr. Swartz. One of the things we have done in terms of
responding to the Inspector General's report was to go through
the various outstanding cases, not just for Mexico but for all
of our countries, to try and eliminate cases that no longer
seemed to be in any way a request for extradition or in which
we no longer had reason to believe the individual was even in
the country. This is our best estimate of now pending live
extradition cases with Mexico, 303--2,500 for the entire world;
300 with Mexico.
Mr. Deal. Does any other country come close to having the
number of 300?
Mr. Swartz. Colombia is the only other country that comes
close.
Mr. Deal. But they are more cooperative.
Mr. Swartz. They are cooperative in large part because so
far, at least with one or two current issues, we have been able
to structure the sentences in a manner that meets their request
for life assurances.
Mr. Deal. Now, it would seem to me that since the
Department of State has the jurisdiction in dealing with other
countries, do we give any consideration in negotiating any
other agreements with other countries as to whether or not
their extradition treaties are favorable or unfavorable to us?
For example, with regard to establishing quotas for a number of
their citizens that are allowed into our country, is the fact
that they are cooperative or uncooperative a factor in those
determinations?
Mr. Witten. I think there are a couple of parts to that
question. One is the direct link between extradition and other
aspects of the relationship. The other is--let me start with a
different part of it, sir. Extradition is one part, as Mr.
Swartz has mentioned, of the overall relationship with Mexico.
We have cooperation that is hampered, hopefully just for the
time being, with Mexico. They are cooperating in other matters,
investigations, prosecutions and information sharing on other
matters.
So one aspect of the question would be is extradition--and
the problem that we're currently having on life imprisonment,
does that so taint the entire law enforcement relationship that
we would say that the law enforcement relationship is so
crippled that you take it to the next step: Would the law
enforcement relationship relate to other issues, be they
economic issues trade matters, other immigration matters? And I
don't think we are at that point.
We have clearly a serious problem in this part of our
relationship. We're working on that problem in the way there
are other issues in the Mexican relationship that are beyond my
personal ability to discuss with you in any depth, that we are
also working on. It's a complicated relationship. It's a long
border. We have a lot of issues that need to be sorted out.
Mr. Deal. On a somewhat related issue, have there ever been
discussions about requiring nations to compensate each other
for the incarceration of their own nationals within the prison
system of another country? I think all of us know that on our
domestic side, a huge number of those who are in our Federal
prison system as well as in our State prison systems are
citizens of other countries, and they consume a huge amount of
revenue to keep them in our prison systems. Do we have any
system whereby we ask for reimbursement from other countries
based on the number of their citizens that are incarcerated in
our prison systems?
Mr. Witten. Sir, as you probably know, we have prisoner
transfer treaties with Mexico and a few other countries. There
are a dozen relationships like this around the world where if
the two countries agree, the person can serve the sentence in
their country of nationality. And we do have Americans returned
pursuant to these treaties. We sent nationals of foreign
countries back to their homes in appropriate cases.
Mr. Deal. If you could furnish us with information as to
the number of those cases and the countries involved in that.
Mr. Witten. That shouldn't be a problem. The criminal
division of the Justice Department administers the program, but
certainly we will give you information on the network of
treaties and how they work.
Mr. Deal. That's simply a matter of once they have been
convicted in the country, transferring them back to their
native country.
Mr. Witten. That is a part of your question. It's sort of
the quantity of people from other countries in our prison
systems. In terms of compensation, there's no international
agreement scheme for that, and I am not aware that we pay
compensation or receive compensation for the costs associated
with the custody of fugitives.
Mr. Deal. It is one of the largest unfunded mandates faced
by States and local governments for the failure of the Federal
Government to enforce its immigration laws. That is a huge cost
factor to local and State governments.
Mr. Swartz. To the extent we can work with any State or
local government in that regard, we do, as Mr. Witten
suggested, have an international prisoner transfer unit in the
Department of Justice that deals with these issues to try to
make sure that countries bear the cost of their own criminals
and to secure the return of U.S. citizens to serve their
sentences here.
Ms. Sanchez. I have a few followup questions and I will try
to be brief. Aside from extraditing suspects to the United
States or using the creative charging process in prosecuting
these individuals, what other remedies are available for trying
to bring these individuals to justice? And I am referring
specifically to efforts within the countries to which they fled
to perhaps try them and convict them and get them to serve a
term of years in those countries.
Mr. Swartz. Congresswoman, as many countries do have a
system in place that allows the possibility of trial of the
individuals in that country under some circumstances--Mexico
has such a system--the results have varied in terms of whether
or not they have been considered to be successful or not. It's
usually a difficult task to secure convictions in those cases.
It involves the Federal, State or local prosecutor in
presenting evidence in a remote location, oftentimes under
different rules.
So wherever possible, our argument has been--and it's been
key to extradition--that the individual should be tried and
sentenced in the jurisdiction in which the crime has been
committed. There are other alternatives, though, as you
suggest. We certainly sought deportation whenever possible, and
some countries have been willing to work with the United
States, in the absence of extradition treaties or in the
absence of deportation circumstances, to return or to make
individuals available to us. So we try to consider every
alternative in every case.
Ms. Sanchez. But that definitely is one of the options.
Mr. Swartz. That is one of the alternatives that is
considered.
Ms. Sanchez. And I want to clarify yet again. Obviously,
there have been discussions among our government and the
executive branch of the Mexico Government, who it appears to
me--and I want your confirmation of this--seem to be motivated
to try and address this problem.
My question is do you sense a reluctance on the part of the
executive branch who seems to be hampered by the independent
judicial interpretation of the constitution? Would you
characterize it as a reluctance on Mexico's part to try to
address this problem? Because I want to make sure that we're
clear with what efforts are being made on the Mexican
Government's part.
Mr. Swartz. The executive branch argued against this
decision before it was rendered and in fact, I believe, thought
that we would prevail on this issue. From the Department of
Justice point of view, we have not seen a reluctance to raise
this issue. I think that Mexico, on the executive side,
recognizes the importance of this issue to the United States
and recognizes the danger it poses to the people of Mexico by
having these fugitives consider Mexico to be a safe haven.
Regardless of their recognition, it remains a serious problem
for the United States.
Mr. Witten. Our embassy is working closely with the Mexican
executive branch. And I just want to echo Mr. Swartz's comments
that we do see a high level of motivation and cooperation, and
we're hoping this works out in a correct way.
Ms. Sanchez. Thank you.
Mr. Souder. Is the Mexican executive branch at all--have
you been able to pursue, or is there any legal ability to
pursue if an extradition request is made but is held up for
some reason, like through the courts, that they would put the
person in their prison?
Mr. Swartz. In some circumstances we request provisional
arrest of the individual pending extradition. We would hope in
the normal set of circumstances that individual would be held
pending extradition, but that doesn't always take place.
Mr. Souder. Wouldn't the executive branch have the ability
to impose an up-to-60-year sentence if it would be the
equivalent in the United States? Are there options for the
executive branch to work around in their domestic side if we
can't resolve in the court?
Mr. Swartz. That would involve a prosecution internally
within Mexico under Article 4 or otherwise, which might present
other issues. But there are certainly alternatives if we in the
United States are willing to go that route.
Mr. Souder. If their court blocks us, we have a big
problem. We either have to do something at the border or have a
legislative solution.
Mr. Swartz. I fully agree. If the court blocks us, we need
to think of some robust solution to this issue that allows us
to deal with it, not only case by case, but pass a plan to deal
with it.
Mr. Souder. One last question before we move to the next
panel. On the Colombia question, this committee--because of
narcotics focus, obviously, in addition to the many cases in
Mexico but particularly with Colombia--we want to make sure we
are kept informed on the extradition cases.
Last night when we met with President Uribe in bipartisan
leadership, there was a lot of consternation about the immense
difficulty when they are trying to negotiate peace treaties
with narco terrorists and particularly some of the paramilitary
leaders who are wanted on various serious charges in the United
States, can they in fact forgive those if they lay down their
arms? And this is another type of a realm, because in fact our
death penalty and penalties here has been one of the biggest
leverages we have in the battle in Colombia, because they are
so afraid of coming to the American judicial system.
On the other hand, we have to continue to make it clear to
Colombia that it does not mean all of a sudden we are going to
waive our American justice system because they have made a
guess at best that this person is going to cooperate for
awhile. And I think that President Uribe got that message last
night. And everybody listened to his dilemma that he's facing
in his country, but there is not a lot of patience when people
have been major narcotics dealers that have resulted in
thousands of deaths in the United States and around the world
that suddenly this is going to be waived. And I hope you will
continue to take that message back.
Mr. Swartz. Thank you. We will take that message back.
Mr. Souder. Thank you for being with us. We will probably
have additional written questions that we will send over in the
next few days. Thank you.
The second panel would now come forward and remain
standing. The Honorable James Fox, District Attorney, San Mateo
County California, representing the National District Attorneys
Association; the Honorable Daniel J. Porter, District Attorney,
Gwinnett Judicial Circuit, Georgia; Ms. Teri March, widow of
Los Angeles County California Deputy Sheriff David March.
[Witnesses sworn.]
Mr. Souder. Let the record show that each witness responded
in the affirmative, and appreciate you coming today and sharing
your testimony with this committee and being willing to be
subjected to our questioning.
We are going to start with Mr. Fox. You are recognized for
your opening statement.
STATEMENTS OF JAMES FOX, DISTRICT ATTORNEY, SAN MATEO COUNTY,
CA, REPRESENTING THE NATIONAL DISTRICT ATTORNEYS ASSOCIATION;
DANIEL J. PORTER, DISTRICT ATTORNEY, GWINNETT JUDICIAL CIRCUIT,
GEORGIA; AND TERI MARCH, WIDOW OF LOS ANGELES COUNTY, CA DEPUTY
SHERIFF DAVID MARCH
Mr. Fox. Thank you, Mr. Chairman and members of the
committee. My name is Jim Fox. I am the elected prosecutor for
the county of San Mateo in California, a position I have held
for the past 21 years. I am vice president of the National
District Attorneys Association. And on behalf of that
Association, I would like to express our gratitude for being
invited to share our comments with you today.
Up until the end of the last century, international issues
really were not of much concern with local prosecutors.
Obviously our country and our world have changed. My county
alone, I have three international airports within 25 miles of
my office. San Francisco International Airport is located
within my county. And so obviously the ability to travel
internationally has been tremendously increased. We are no
longer relegated to traveling by ship, and people can commit
crimes and be out of the country before the tape is even up
around the crime scene.
We have also, obviously, lengthy international borders with
both Mexico and Canada and people are relatively free to cross
those. So these are areas of concern.
The idea of citizenship has changed also. As you have
heard, there is a concept of dual citizenship. I myself am a
first generation American. Our youngest son has dual
citizenship with Ireland. That is something that is expanding.
In fact just this past week, the Philippine Government has
reestablished dual citizenship and is readmitting to
citizenship some of their former citizens who had become U.S.
citizens. Our country is incredibly diverse and we have one of
the largest Philippine communities in our county outside the
Philippines. Daly City is approximately 50 percent Filipino.
We try to protect our citizens and the concept of justice
obviously varies from country to country. You have heard
extensive comments already. What I would like to talk about is
what has occurred specifically in our county as a result,
perhaps, or maybe it was unrelated to the October 2001 decision
of the Mexican Supreme Court. In January, 3 months after that
decision, two Mexican citizens and two U.S. citizens
participated in a quadruple homicide in our county. It was drug
related. They basically executed four Mexican citizens. The two
citizens of the United States have been apprehended. One was 17
years of age. He is being prosecuted as an adult. The other was
21 years of age. They are both facing life without the
possibility of parole for a multiple homicide.
The two people who fled to Mexico, including the ring
leader, the one who orchestrated the whole thing, have
basically acquired immunity now. The ring leader was
apprehended in Sinaloa in April of this year and we were
informed only if we were willing to waive the sentence that is
provided for by California law would we ever be able to see
this individual back to receive justice in California. Well,
frankly, I think that's a serious question of equal protection.
Why should U.S. citizens who have been apprehended in our
country face a more severe penalty, life without the
possibility of parole, than the ring leader who orchestrated
the whole thing to receive a determinant sentence? I don't
think that's fair. So we chose not to pursue extradition and in
fact that individual is now living free in Senaloa. And if the
Mexican Government wishes to allow people to flee there, I
guess that's something over which we really don't have too much
control.
But the concern that I have is that Mexico does allow
extradition for a determinant sentence. And what I am
suggesting to you is that every peace officer in the United
States is at significant risk because of that policy. If an
individual in our county committed an armed robbery and used a
firearm, they would be facing a determinant sentence of up to
15 years. If they got to Mexico, Mexico could and would
extradite for the robbery. If, however, they were fleeing to
Mexico and an officer stopped them, that person has every
incentive to execute the police officer, because he will then
have immunity once he arrives in Mexico. So I think that it's
an intolerable situation.
I would suggest that there are some things that could be
considered, including in any future extradition agreements,
inclusion of a full faith and credit provision. Obviously, for
those countries that do not believe or do not recognize the
death penalty, that is certainly something that could be
conditioned as a waiver of the extradition, or pursuing the
extradition, that we would not seek the death penalty. But
frankly, I don't think it's fair to our citizens to have to
negotiate and say that we will give you a 30-year term so you
can come back. Whereas our citizens are facing life without the
possibility of parole.
I know there had been a position within the Department of
Justice, a liaison position, and we encourage that to be
reestablished because it does provide assistance. And we are
hoping there would be some efforts to provide training for
local prosecutors in these issues because they are significant
and they are complex.
On behalf of the local prosecutors of the United States, I
would like to thank you very much for allowing us to share our
comments. And we look forward to working with you, the State
Department, and the Department of Justice.
Mr. Souder. Thank you and your full statement will be in
the record and any additional materials you want to submit from
your Association.
[The prepared statement of Mr. Fox follows:]
[GRAPHIC] [TIFF OMITTED] T2899.035
[GRAPHIC] [TIFF OMITTED] T2899.036
[GRAPHIC] [TIFF OMITTED] T2899.037
[GRAPHIC] [TIFF OMITTED] T2899.038
[GRAPHIC] [TIFF OMITTED] T2899.039
Mr. Souder. Mr. Porter.
Mr. Porter. My name is Danny Porter. Normally I don't need
a mic, given my voice, but I am the district attorney of
Gwinnett County, GA, which is a suburban county on the
northeast side of Atlanta. I think the reason that I'm here is
that I was asked to be--given the nature of my county in the
year 2000, our immigrant population was really not even
countable on the census, or, excuse me, the 1990 census.
In the 10 years since 1990, Gwinnett County holds the
distinction of having the largest immigrant population in
Georgia which is one of the fastest States in population growth
of the immigrant population. We are also the adjoining county
to Congressman Deal's county of Hall County.
I am here to echo the things that Mr. Fox has said. I don't
normally have the luxury of looking at things from the
international scope. I am usually too busy dealing with victims
of violent crime and explaining to them the intricacies of
international extradition and why we cannot bring the person
who executed their loved one or hurt their loved one back to
this country to face justice. That is not to say we haven't had
successes. There are countries that have like minds and systems
that will work with the United States to prevent injustices,
and I think it's important that we put some of those examples
on the record and make this just not a hearing of condemnation.
A year ago, a minister on Grand Cayman Island, a music
minister, applied at a church and gave a false application. One
of the church members looked and became suspicious of the
person--of the minister--and looked on the Internet and found
local articles from a Gwinnett County newspaper where that
person was charged with child abduction, where he had left with
the mother of the child stealing those children from the
custodial parent and fled and was being searched for. That was
identified as the prospective music minister. The Cayman Island
authorities moved swiftly to secure the safety of those
children, to secure hearings. And with the cooperation of the
State Department and the work of the State Department, my
office was able to bring those children back and reunite them
with their custodial parent. I am confident without the efforts
of the Government of the Cayman Islands, those children would
have disappeared again and we would have had another year-long
or 2-year-long search for those children.
So there are successes. Canada, for instance, is one of
those countries that will move swiftly in child custody issues
and return children to their custodial parents, but Canada
won't extradite telemarketers. So the international field of
extradition is a mine field for local prosecutors. I think one
of the growing problems is the problem that has been addressed
in this hearing, and that is the problem of our relationship
with Mexico. And I think one of the things that the committee
has to realize is that part of that problem is, for instance,
in the examples that are given in my written testimony. I would
like to throw those out just a little bit.
It somehow is very difficult for a local prosecutor to
accept that in the Toombs County murder where that defendant
killed two persons, was tried and acquitted in an Article 4
hearing, he is now a booking officer in a Mexican prison. It is
somehow difficult to accept that a person who would commit
murder in our country is now part of the judicial system in
Mexico. It is difficult to accept that a person that I have to
make a decision where my defendant clearly murdered in front of
four eye witnesses another Mexican citizen, fled to Mexico, and
I have had to make the decision I am more likely to catch him
in Gwinnett County than I am to get him out of Mexico in the
judicial process.
It is very difficult as a local prosecutor to accept that
people are doing driveby shootings in neighboring counties, in
Congressman Deal's county, fleeing; and we as prosecutors
simply have to make the decision we are more likely to catch
them in the United States and bring them to justice than to
successfully bring them back from Mexico.
Even though there are clearly countries where we have a
cooperative relationship, where international extradition can
be a success, the problem with Mexico is growing. The problem
with Mexico is presenting a burden on the local level. And we
as prosecutors have to bring that not only to your attention,
but we have to ask for your help in training. I can tell you
the first time you ever have to do as a local prosecutor--the
first time you ever have to fill out the paperwork it begins,
and your education begins, and I don't think prosecutors should
have to fall in holes to learn. They should be taught. We
should have more input into decisions that are made at the
State Department level that have to do with our local cases and
our local concerns, and I think those are things Congress can
do something about.
Thank you on behalf of the working prosecutors, not that
Mr. Fox is not, but I am here to represent the
nonorganizational prosecutor. Thank you.
[The prepared statement of Mr. Porter follows:]
[GRAPHIC] [TIFF OMITTED] T2899.040
[GRAPHIC] [TIFF OMITTED] T2899.041
[GRAPHIC] [TIFF OMITTED] T2899.042
[GRAPHIC] [TIFF OMITTED] T2899.043
[GRAPHIC] [TIFF OMITTED] T2899.044
[GRAPHIC] [TIFF OMITTED] T2899.045
[GRAPHIC] [TIFF OMITTED] T2899.046
[GRAPHIC] [TIFF OMITTED] T2899.047
[GRAPHIC] [TIFF OMITTED] T2899.048
Mr. Souder. Ms. March. We appreciate you have come today
and we extend our sympathy to you. Your husband died, like many
other police officers around the country, trying to protect the
rest of us, and we appreciate your willingness as a spouse to
go through the sacrifices day to day, in addition to the
ultimate sacrifice, so American citizens can be safe. You are
going to get a national forum which in his memory raises some
of the concerns that you have been expressing over time.
Mrs. March. Thank you very much for giving me the privilege
to come here today. I think it is very important that we
remember that I am a real person. David's job and the oath that
he took was real. Armando Garcia and his evil acts are real,
and the safety of our community and the threat of it is real.
Imagine hearing that your husband was shot and killed. You
have to now plan your life for a future that wasn't in the
plans when you decided to get married. And then to hear that
there's not a lot that can be done. I heard that his killer
fled. I said OK. I know the great honors that I saw when they
buried my husband, everything from folding a flag to a fly
over. So I thought everybody was on my side to see this man
pay. They said that he had fled, and I thought we were going to
turn every rock over and find him. I later found out on the day
Dave was buried, we knew where Armando Garcia was. And then I
was introduced to words I never heard of, ``treaties,''
``Article 4s,'' ``corruption,'' ``bounty hunters.'' I didn't
understand. All I knew is that I had a dead husband and a
daughter to raise by myself.
When I learned of his criminal activity prior to my
husband's killing, I can understand why this guy did this, and
I feel like our system let him do it. He was deported three
different times for various drugs, concealing a weapon, and
other various things. This perpetrator has been doing crime
since youth. Prior to my husband's murder this gentleman, for
lack of better words, tried to kill two other people, and our
system just sent him back. They deport him. No punishment is
given, and he gets a little more brazen when he comes back.
My husband made a traffic stop at 10:30 a.m., this man
didn't want to have his freedom taken away. In a split second
he took my husband's life. He shot him in the chest, started to
walk away, and came back and executed him in order to finish
the job. That man is free. This man can kill again. This man
has said, I have killed one and I will kill more. I know that
our Sheriff's Department has gone to great lengths trying to
lure, trying to trick and trying to bring him back. Yes, we
have not filed for extradition. Would you trust Mexico? Would
you trust that they would do the right thing? I don't speak the
language. I don't get to testify. The witnesses don't get to
testify except on paper.
I want to see the eyes of the man that did this. I want to
see if he has any ounce of remorse. I want to know why. I
deserve to know why. You can put him away now. It is very
frustrating. Mexico has tried to work with me and wanting me to
go with an Article 4. Article 4 means he gets prosecuted down
there, and I cross my fingers that justice will prevail.
However, I have heard of horror stories. I have heard of
weekends in jail. I have heard of the injustice. I think
Mexico's completely jeopardizing and compromising our justice
system. If we give into Mexico and say OK, Mexico, do us right,
and they let us down, what are we saying to our law
enforcement? They are putting their lives on the line for us.
They take that badge and that oath so seriously, just as you
do. It is such an injustice what's happened, and it's a slap in
the face to me, it's a slap in the face to what my husband
stood for, and it's a slap in the face to law enforcement.
Our law enforcement need to know that we stand behind them
110 percent. We don't want this country to get more corrupt
because we don't stand behind our men and women who take the
oath to protect us. I feel it's only fair that justice is here.
This individual chose to leave Mexico, reside here in
California and take a life in California. He took my personal
hero, and I want to see him pay. I want him to be able to make
a phone call and see that he's in jail. I personally don't know
how to feel about the death penalty or life in prison. I just
know I don't want him to kill anymore, and his freedom allows
that right now.
We do have a petition in place that is organized by the
COPS organization, Concerns Of Police Survivors, pleading with
the Bush administration to acknowledge this problem that we
have. I have 6,000 signatures currently, and I know there's
going to be more to come. We don't want to see our police
officers die and then go unpunished by giving them a reward for
going to Mexico. We want to tell all criminals that you will
pay and we will go to the fullest length of the law to see that
justice will be done.
I thank you very much. I am going to stay strong and I'm
going to keep going out there and keep telling people what's
wrong with our system. In the meantime the only thing is that I
have advertised how to get away with murder. Please help me
change that, because I won't stop talking.
Mr. Souder. Thank you for putting a human face directly on
the problem.
[The prepared statement of Mrs. March follows:]
[GRAPHIC] [TIFF OMITTED] T2899.049
[GRAPHIC] [TIFF OMITTED] T2899.050
[GRAPHIC] [TIFF OMITTED] T2899.051
[GRAPHIC] [TIFF OMITTED] T2899.052
[GRAPHIC] [TIFF OMITTED] T2899.053
[GRAPHIC] [TIFF OMITTED] T2899.054
[GRAPHIC] [TIFF OMITTED] T2899.055
[GRAPHIC] [TIFF OMITTED] T2899.056
[GRAPHIC] [TIFF OMITTED] T2899.057
[GRAPHIC] [TIFF OMITTED] T2899.058
[GRAPHIC] [TIFF OMITTED] T2899.059
[GRAPHIC] [TIFF OMITTED] T2899.060
[GRAPHIC] [TIFF OMITTED] T2899.061
[GRAPHIC] [TIFF OMITTED] T2899.062
[GRAPHIC] [TIFF OMITTED] T2899.063
[GRAPHIC] [TIFF OMITTED] T2899.064
[GRAPHIC] [TIFF OMITTED] T2899.065
[GRAPHIC] [TIFF OMITTED] T2899.066
[GRAPHIC] [TIFF OMITTED] T2899.067
Mr. Souder. We hear stories, and one of the things that's
frustrating as a Congressman, you feel like Mr. Porter said,
not necessarily focused a lot on the international problems.
Sometimes it feels like we are trying to deal with
international problems in the big picture and miss the human
side of the cases that you deal with every day. And I think one
of the things that is important is to try to marry those two
things so we don't forget the human side. And also we realize
these things are incredibly complicated and difficult to work
through.
One question I had for Mr. Fox and Mr. Porter. Have you had
any successful cases of working with Mexico in an extradition
that you know of?
Mr. Fox. Mr. Chairman, there had been a few cases where we
did pursue the Article 4, but frankly those were cases that
were problematic at best in terms of the witnesses and whether
or not we felt that we would really be able to pursue it. There
were cases where Mexican citizens had been killed by Mexicans
in our county and they were interested in doing the Article 4
and we acquiesced. But frankly, that is a rarity because I do
not have that much confidence that even if there were to be a
conviction that there would be a sentence anywhere near what
California law provides for.
I would also like to expand a little bit--I know
Congresswoman Sanchez asked about the determinant sentencing.
In California we have indeterminate sentencing for second
degree murder, first degree murder; and then for first degree
murder with special circumstances, that is life without the
possibility of parole. Second degree murder is a sentence of 15
years to life. There is no way for us to get a murder
conviction. We can call it a manslaughter but the maximum
penalty for manslaughter is 11 years. So there are significant
issues in terms of trying to formulate a solution to the
problem so we can come up with a determinant sentence.
Mr. Souder. And 11 years could be parole.
Mr. Fox. Eleven years is the maximum term. They would get
out after having served 85 percent of that. They then would be
paroled but could only return for a year. It depends on how the
manslaughter was accomplished. If they used a firearm, then
there would be additional enhancements imposed.
Mr. Souder. Mr. Porter, do you have any experiences of any
successful cases; and another way to say that would be if you
did have any experiences--Ms. March raised a very difficult
question. And that is if, in fact, they are even convicted, do
they get not only a reduced sentence but dramatically reduced
sentences?
Mr. Porter. I never had a case successfully extradited from
Mexico to the United States to face charges. I had one case
prior to the October decision in which--prior to the life
sentence question, where Mexican authorities refused to
extradite a woman who was a party to a gang murder that
occurred in October 2000 in Gwinnett County, or 1999, basically
refused to extradite. We went through the process but they
would not extradite her. They said she was not significantly
involved in the murder. They essentially made a guilt/innocence
decision in the extradition hearing and would not bring her
back.
The most recent case that I have mentioned is the Pinion
case. That defendant is currently in jail for rape in Mexico
and they are moving forward with their charges, although the
legal office in Mexico City say they expect those charges to be
dropped. The Mexicans are willing to do an Article 4 hearing on
him but will not extradite him. And I made the decision that I
am not going to pay the $10,000 to translate my case to go
through the Article 4 hearing. So I guess being a lawyer, I
answered that in more words than I had to, but the answer is I
never had a successful extradition.
Mr. Souder. When you talk about you had one case that
didn't go well and you made another decision, what kind of
network, through your Association and others, does this spread
through district attorneys through the country that don't waste
the time or $10,000? Is there a pretty avid network?
Mr. Porter. Mr. Fox is vice president of the national
organization. He could probably address the national network. I
can tell you that Georgia district attorneys meet four times a
year as a group. We trade examples that are basically outlined
in my testimony that are all from Georgia. And I can tell you
that I got six pending murder warrants against Mexican
citizens, that I have no idea where those people are. The best
information we have is they fled back to Mexico, and I have no
expectations of being able to successfully bring them out of
Mexico. My best hope is they will be captured in the United
States. At this point I can tell you--our best information is
they fled to Mexico.
Mr. Souder. You are hoping they return.
Mr. Porter. I am hoping they return.
Mr. Fox. I am active in our State association. California
is fortunate is that we do adjoin Mexico. The Attorney
General's Office in our State does have full-time people who
liaison with the Mexican justice people. What you have heard
today, the biggest problem was not created by the executive
branch but by the judicial branch.
The National District Attorneys Association has discussed
this at some length because it is a matter of concern for all
prosecutors across the country. It is not unique just to
California or to the border States.
Mr. Souder. Ms. Sanchez.
Ms. Sanchez. Just a couple of comments on some brief
questions.
Mr. Fox, I don't disagree with you on the determinate
sentences; I am very well aware of that. It's frustrating for
me as a Member of Congress to sit here and understand that our
system is failing us, that there are these problems with
extradition. It's very clear from the testimony of Mrs. March
what the real human cost is. And there is not a person up here
that disagrees that you deserve to see justice served in this
case. I want you to know that. The problem is we are looking at
a flawed system, albeit something that we have very little
control over, and trying to think of creative ways to work
around that.
So my question with respect to trying to extradite instead
of--for crimes that serve the maximum penalty, which would be
the death penalty or life in prison, trying to find creative
ways that we can at least bring those individuals to some type
of justice, albeit imperfect justice, in the United States so
that they do serve their time.
And Mrs. March, I just really want to thank for your
presence and your courage here today, because you help
highlight, obviously, what is becoming an increasing problem,
again not just among the border States but among all of the
States, the United States. Your testimony here is invaluable
because it will help further highlight that problem and
hopefully bring about some type of discussion that can prove to
be fruitful in the future.
And, again, I just want to reemphasize this, because I
don't want people to get the misperception that the Mexican
Government, because of a lack of will on their part, is
allowing this to happen. It appears to me that they are trying
to work with law enforcement, they are trying to do the right
thing, but they again are hampered by an independent judiciary
branch that has made a Constitutional interpretation that
pretty much ties their hands. And I just want to reemphasize
the point that it appears that they are trying to be as
cooperative as they are, and as imperfect as it is, you know,
hopefully there may be something that can be done, either
through revisiting of their judicial interpretation or through
other means, to try to make sure that folks like Mrs. March
have their day in court and have the right to see the accused
answer for their actions and serve time for their crimes.
So I just want to thank all of you for being here this
morning and providing your testimony.
Mr. Porter. Congresswoman, if I might in response to your
statement, is I think that makes it more important that this
Congress act to fund those positions within the State
Department and within the Justice Department so that American
interests can be represented in these courts of foreign
countries in similar-type legal proceedings as the amicus brief
that's filed by different organizations in different cases. It
is not unusual for foreign governments, particularly in death
penalty cases, to file pleadings in those hearings. We should
be doing the same. We should be in Mexican courts fighting for
the decisions that we want on an amicus basis. And I think Mr.
Fox agrees with that.
Mr. Fox. Absolutely.
Mr. Porter. And we can only do that through the Justice
Department and the State Department.
Ms. Sanchez. Your point is well taken.
Mr. Souder. I wanted to tell Mrs. March, too, that we will
submit your full statement and supporting records in the
record, because you have detailed in addition multiple cases
that I asked earlier, dating back, by the way, to 19--it looks
like 79--in the one group of cases, and Senator Feinstein's
letter also has cases that go back into the eighties. And while
the court has certainly complicated matters for the new
administration in Mexico, which has made--President Zedillo's
and President Fox's administration's made more progress in the
judicial system than many, many decades before that.
Nevertheless, all the regional corruption that is around it in
different parts, and they have--intimidation that has occurred
to their attorney generals over the years, it is not just a new
problem, it's been systemic.
But we also have to recognize that, like Congresswoman
Sanchez is saying, that this particular government is making
progress; it's just really slow now that the court has set them
back again, and we have to figure out where we can bring the
maximum amount of pressure to bear. And your testimony today is
really helping to do that.
I want to thank Mr. Deal, who really brought this
committee's attention, as vice chairman of the committee. This
is one of the issues he wanted to focus on, and I will now
yield to him for some additional questions.
Mr. Deal. Thank you, Mr. Chairman. And I too want to thank
this panel for your attendance. And Ms. March, I thank you
personally because I know this is difficult for you to have to
relive this situation. Unfortunately, it is bad cases such as
yours that sometimes call the American people's attention to a
problem, and that it is of a magnitude that requires that the
problem be addressed. And that's the purpose of this hearing
today. And I thank you.
And I also want to thank the COPS organization that you
referred to for their efforts. I think that is the only way
that we educate the American public to the magnitude and the
degree of severity that this problem presents to our citizens.
And to Mr. Fox and to Mr. Porter, thank you both not only
for being here but for what you do every day and trying to
uphold the laws of our country and of our States. You do a
tremendous job. And Mr. Porter is a neighbor of mine, and I do
have a portion of the county that he serves in now. And he does
work with my son, who is the district attorney in our home
county, and so I get firsthand information as to the degree of
these problems.
And I think it's important that we point out that from a
prosecutor's standpoint, there are several options that they
choose, and extradition is probably the very last option that
they choose. Unfortunately, the option that many of them
choose, and unfortunately it is in the most severe cases, it is
that alluded to by Mr. Porter: We will take our chances that we
will catch him back in the United States, get him on our home
territory.
Now, the other option, one of them, has also been alluded
to, is that they will defer prosecution in lieu of deportation.
Unfortunately, as in the case of the perpetrator in the March
case, deportation is not a permanent solution. Our borders are
so porous, we do such a poor job in being able to apprehend
those who come across illegally, that deportation simply means
in some of those cases a way to avoid punishment in the United
States, to go home temporarily and then to return immediately
back to our soil. None of those are good solutions. And it all
goes back to the fact that we are in a situation where, in Mr.
Fox's testimony directly and in the March case in particular,
we have created and Mexico has created an incentive to kill
police officers, an incentive to not just burglarize the home,
but if they show up while you are there, kill them because you
might get sent back if all you are guilty of is burglary; but
if you kill them, your chances of getting sent back and charged
in the United States are almost nothing. Now, nothing could be
a worse signal to our neighbor to the south nor to the world
for us to allow that condition to continue.
As you heard in my opening statement, I made reference to a
suggestion that I think we should seriously pursue--and I know
that this is going to require decisionmaking at a level far
above that of this subcommittee. But I think there is a reason
to make a distinction when we relate country to country to
those citizens who have left our country legally and gone to
another country that has screened them and said, yes, we will
let you in, and vice versa. Here the tragedy is that in most of
the cases of which I am personally familiar, the individual has
already committed a crime, because they are not legally in our
country. And to make no distinction in the issue of extradition
between somebody who came into a country illegally, where the
country had no opportunity to screen them, versus a decision
where they did come in legally and the host country did screen
them, background check, criminal records, all of the like, the
perpetrator in the March case would never have passed that kind
of scrutiny to be legally admitted into our country. So when we
don't enforce our immigration laws, we invite that multiplicity
of criminal conduct.
And I just for one, think that if the Mexican Government--
and I do not wish to condemn them unduly. I think they are
trying to make progress. I commend them in the areas where they
have made progress. But, quite frankly, if they would spend as
much time and effort trying to get their extradition situation
and their cooperation and criminal prosecution straightened out
as they have spent trying to convince the banking and financial
communities in the United States to accept the Matricular
Consular cards, we would be much closer to a solution here.
So I don't want to condemn their efforts, but I want to say
I don't think they are making nearly enough. And they are our
neighbor to the south. As the old poem said, fences make good
neighbors. We can't build the kind of fences that we need. We
have already found out that we can't do that. But good
neighbors cooperate in the enforcement of basic criminal laws
and the administration of justice. And I think Mexico has a
long way to go in that regard.
I didn't ask you any questions. I do appreciate your
testimony. I think that hopefully this is the first step in
making not only this Congress but also the people of this
country more aware of the significance of this problem. And the
truth of the matter is, we are not really at the crest of that
hill. That hill gets bigger every day. The number of cases like
we are talking about here are going to get larger every year.
And if we really had true records, it wouldn't be 25 cases or
even 300 cases of extradition from Mexico, because most
prosecutors are realists. They know what their work demands
are, they know what their budgets are, and they are just not
going to spend time and effort and money where there is not
going to be a successful result in the long run. They can't
justify that.
Now, that is not to say the problem is not there. It's to
say the problem is there, and the problem has no good solution.
And I think it's up to this Congress to do what we can to try
to solve that problem. And it's only through the testimony and
the willingness of people like you who will step out, tell the
American people the truth, tell them the realities that we
sometimes don't want to listen to, that we have a chance to
begin to make progress.
So I do thank all of you personally and very much for your
testimony and your presence here today. And, Mr. Chairman, I
especially want to thank you and the staff of this subcommittee
for making this issue a matter of attention to the
subcommittee. It would be a whole lot easier sometimes just to
ignore these kinds of things and pretend that they are not a
problem and they don't exist.
I continue to have the feeling that this is the No. 1 time
bomb waiting to explode in this country. And in my part of the
world, as Mr. Porter's illustrations and even Mr. Fox's
illustrations were, to some extent, much of the crime committed
by Mexican residents has been crime against other Mexican
residents who are either here legally or, in most cases,
illegally. And those, unfortunately, have to be looked at in a
little different situation. They don't arouse the same kind of
local uproar. Not that we tolerate it, not that we like it. In
Mr. Porter's testimony, the cases that he alludes to in my
community, the driveby shootings, the bludgeoning deaths of
drug dealers, has pretty much been that kind of activity.
But wait until the victims are the victims like Officer
March. You wait until those cases begin to multiply, and I can
assure you that it will not be just a subcommittee of this
committee holding hearings, it will be somebody demanding that
somebody's head roll because they haven't done something at the
time they should have done to prevent it. I think we can
hopefully make some progress to avoid that time. Thank you very
much.
Mr. Souder. Thank you.
I have one additional question for Mrs. March. In your
testimony, you said that the murderer had been deported on
three occasions for drug charges and was wanted for two other
attempted murders. Why didn't INS tell you that they hadn't
held him? Did you ever get a chance to ask them that question
or did you ever get any answer back?
Mrs. March. Initially we just were told it was INS's fault.
They said, no, it's the Federal Government's fault. I just got
a lot of finger pointing. No one's taken any sort of
accountability. No one's tried to make their actions correct. I
think there is obviously a broken link in the system, and no
one's taking fault for it. I have no idea. And I feel like
somebody allowed this man to kill my husband.
Mr. Souder. One of the things that I would like our
subcommittee to do, and this isn't--we pretty much know the
answer to the question. And that is, that when we deport, our
information systems and our time or willingness to check
everybody out, we are just overwhelmed.
Mrs. March. I understand.
Mr. Souder. But this is an incredible flaw that, by the
way, was also a flaw in September 11 and it has to be fixed.
And I would like to find out for the record officially why INS
says they would have deported somebody who had drug charges and
was wanted for two other attempted murders, and whether they
just didn't have time to check it, whether the information
system didn't show because the murders were in other States,
whether the drug charges were insufficiently high and so we
just kind of pretend like they didn't happen. Because this is a
huge question.
I'm also on Homeland Security, and when we did our border
report, our understanding was--is that you have got deported if
your only--and weren't held if your only crime was illegal
citizenship, which, by the way, is also a crime. In other
words, entering illegally. But supposedly they were supposed to
be catching people and holding them if they had other charges.
So the question is, what is the breakdown or multiple
breakdowns in our system? And we know, in fact, we have a lot
of them, and we are trying to fix them. But I would like to
know, because this is a pretty extraordinary case, if it had
that many different charges.
Mrs. March. Well, it was kind of explained to me that
somehow the system failed. Evidently, you know, he would be
sent back and probably most likely not get any sort of
punishment in Mexico. The way they explained it to me was--and,
unfortunately, I think it's very true--is crime rises. And
unless you were able to look in a crystal ball, you wouldn't
have thought this guy would be possible for the crime that he
did. He--evidently, I guess, when my husband pulled him over,
he wasn't going to go to jail again and it didn't matter, he
was going to kill my husband, which he said he would do to his
prior friends--not him particularly, but any cop that pulled
him over.
So I think that was his initial plan to avoid the system. I
think he just got a little more courage along the way. And he
was probably at the bottom of the stack as far as high threat.
And, unfortunately, we don't have enough law enforcement to
keep up with the pace of the criminals.
Mr. Souder. If somebody is wanted for two other attempted
murders, we could keep track like that, you would think.
Mrs. March. Yeah. Well, those--actually those two attempted
murders weren't filed until after my husband was murdered. I
don't know why. He actually got over the border that night, and
they suspected he was going to, and I don't know why there
wasn't more attention toward the border. There is so many
things that I don't understand why it happened. And I can only
imagine it's so I could be here and speak for the other 300
families.
Mr. Souder. I don't know if you find this comforting or
more scary, but we have spent 2 years and we have held hearings
all across the north and south border, and I don't understand
either. So I don't know whether you find that encouraging or
discouraging.
Mrs. March. Well, you know what? I can see why people take
measures to hire, you know, bounty hunters. You don't feel like
the justice system is going to do what they need to do, and you
don't want him to keep on continuing to kill.
Mr. Souder. Well, we have an obligation, because that
system won't work either. And it is happening somewhat on the
southwest border. But all it is doing is complicating the
problem, as it has in Colombia and in other countries, because
pretty soon the bounty hunters decide they can do a rogue
business on their own as well, and then you have multiple
groups of terrorists.
We have an obligation to our citizens to do a better job,
which means we need, by the way, responsible immigration
policies that work, because we simply can't hire enough Border
Patrol people right now to protect that whole border. But we
have to take some action for narcotics reasons, for murder
reasons, for terrorist reasons, because the current system
isn't functioning, particularly if they won't extradite even if
they have them.
Mrs. March. They've left us no choice but to try to lure
him in, and that essentially gives him his freedom.
Mr. Souder. Well, thank you.
Mrs. March. We know exactly where he is at.
Mr. Souder. Well, we thank you for your testimony. I also
want to insert into the record Mr. Cummings' testimony right
after mine as the ranking Democrat.
Anybody else have any additional comments?
Mr. Fox. Thank you.
Mr. Souder. Thank you very much for coming today. The
subcommittee is now adjourned.
[Whereupon, at 12:29 a.m., the subcommittee was adjourned.]
[The prepared statement of Hon. Elijah E. Cummings and
additional information submitted for the hearing record
follow:]
[GRAPHIC] [TIFF OMITTED] T2899.068
[GRAPHIC] [TIFF OMITTED] T2899.069
[GRAPHIC] [TIFF OMITTED] T2899.070
[GRAPHIC] [TIFF OMITTED] T2899.071
[GRAPHIC] [TIFF OMITTED] T2899.072
[GRAPHIC] [TIFF OMITTED] T2899.073
[GRAPHIC] [TIFF OMITTED] T2899.074
[GRAPHIC] [TIFF OMITTED] T2899.075
[GRAPHIC] [TIFF OMITTED] T2899.076
[GRAPHIC] [TIFF OMITTED] T2899.077
[GRAPHIC] [TIFF OMITTED] T2899.078
[GRAPHIC] [TIFF OMITTED] T2899.079
[GRAPHIC] [TIFF OMITTED] T2899.080
[GRAPHIC] [TIFF OMITTED] T2899.081
[GRAPHIC] [TIFF OMITTED] T2899.082
[GRAPHIC] [TIFF OMITTED] T2899.083
[GRAPHIC] [TIFF OMITTED] T2899.084
[GRAPHIC] [TIFF OMITTED] T2899.085
[GRAPHIC] [TIFF OMITTED] T2899.086
[GRAPHIC] [TIFF OMITTED] T2899.087
[GRAPHIC] [TIFF OMITTED] T2899.088
[GRAPHIC] [TIFF OMITTED] T2899.089
[GRAPHIC] [TIFF OMITTED] T2899.090
[GRAPHIC] [TIFF OMITTED] T2899.091
[GRAPHIC] [TIFF OMITTED] T2899.092
[GRAPHIC] [TIFF OMITTED] T2899.093
[GRAPHIC] [TIFF OMITTED] T2899.094
[GRAPHIC] [TIFF OMITTED] T2899.095
[GRAPHIC] [TIFF OMITTED] T2899.096
[GRAPHIC] [TIFF OMITTED] T2899.097
[GRAPHIC] [TIFF OMITTED] T2899.098
[GRAPHIC] [TIFF OMITTED] T2899.099
[GRAPHIC] [TIFF OMITTED] T2899.100