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| Get notified! |
| By Sarah Etter, News Reporter |
| Published: 03/12/2007 |
Although recent headlines surrounding foreign nationals in the United States have centered on illegal immigration, many local jails and corrections agencies might be overlooking an important part of this issue known as consular notification and access.
This process applies to all foreign nationals who are in the U.S., even those with permanent residency (i.e. green card holders). In fact, many agencies are holding foreign nationals but might not even know it. Foreign nationals, and consular notification and access, can impact corrections in a big way if proper procedures aren't followed. If a corrections agencyfederal, state or localoverlooks this important step in the criminal justice process, litigation could result and even hinder our government's ability to help American citizens in trouble in other countries. Corrections.com had a few questions for Jamie Lawrence, a public affairs specialist for the U.S. Department of State, about what consular notification and access entails and how agencies can follow proper procedure. Corrections.com: What is consular notification and access? Lawrence: In a nutshell, consular notification refers to the process of informing a foreign government about the arrest or detention of a national of that country. The right to consular notification is contained in treaties that the U.S. has signed with countries around the world. Any time a foreign national is arrested or detained, it is mandatory that we inform them of their option to communicate with consular officials and to ask if they want their consulate notified. If a foreign national requests consular notification, the competent U.S. authorities must make notification without delay. The Vienna Convention on Consular Relations is the multilateral treaty that contains consular notification provisions. We also have bilateral treaties with certain countries that require law enforcement and corrections officials to make consular notification in every case, regardless of a person's wishes. These countries include China and the United Kingdom. Foreign consulates also have the right to visit or otherwise communicate with the [foreign national] while they are in detention. This process is called consular access and is particularly important for corrections officials to understand. CC: What are the basic requirements? Lawrence: The basic requirements of consular notification are fairly simple. We're not burdening people with a huge procedure. Essentially, these individuals must know that they have the option of communicating with their consular officials and having those officials notified of their arrest and detainment. For some countries, individuals must have their consulates notified, whether they want to or not. Additionally, the consulate must be notified in the case of the death of the foreign national. Our recommendation is that every law enforcement and corrections agency ask the question “Are you a U.S. citizen,” at intake. The real issue here is that you need to know nationality when someone is arrested and detained. If you don't know someone's a foreign national, you can't cover all the bases. We do lots of outreach to corrections officials because we need them to work as backstops in case the proper procedures are not followed by law enforcement officials at the time of arrest. By the time a prisoner reaches corrections officers, they may have been incarcerated for years without anyone knowing that they are a foreign national. We recommend corrections agencies ask the consular notification question at the point of intake for anyone determined to be a foreign national. CC: These seem like pretty simple procedures, so why is it so important to communicate this process? Lawrence: It's not that people don't want to follow these rules. Once they know how easy and simple this is, they are very willing to do it. They understand that not only is this the law as a treaty signed by the government, but it also helps us protect American citizens. If we treat foreign nationals with respect in America, our citizens abroad are more likely to receive the same treatment. We have a gigantic country; there are something like 18,000 different jurisdictions in the U.S. Each jurisdiction may have different policies and procedures. It's difficult to reach out to all of them. The U.S. has not been historically great about complying with consular notification and access requirements. In some cases, we've received diplomatic complaints saying we're not living up to our treaty obligations. CC: What if consular notification is ignored? Lawrence: Some cases in which consular notification procedures were not followed have resulted in litigation, both in the International Court of Justice and U.S. Supreme Court. The legal questions surrounding this issue are complex, but the basic argument is over whether or not a treaty like the Vienna Convention on Consular Relations can create an individual legal right in the United States. By following the procedures, and documenting that notification was made, law enforcement and corrections officials will help avoid legal challenges. CC: What else can facilities do to make sure their bases are covered? Lawrence: The best way to promote awareness of this issue is to write it down. We want them to have a policy, a standard operating procedure about consular notification and access. There is a consular notification and access standard for accreditation by the Commission on Accreditation for Corrections Standards, but not every jail and prison in the U.S. applies for accreditation or has this standard down in writing. Unless you put a policy in writing, however, there is no way we can make sure we're living up to our obligations. Our office can help out any jail or prison if they need to draft such a policy. We also provide many excellent training resources. We've sent out 1.2 million pieces of training material since 1998. We produce a 72-page training manual for law enforcement and corrections officials. We have a pocket card that we want officers to carry with them at all times. On the back, there are two statements you can read to a foreign national, one for those who have the option of having their consulate notified, and one for those from the mandatory notification countries I talked about before (those countries, by the way, are also listed on the card). We also produce a CD with a whole host of information. All the agencies have to do is touch base with us and we can help them. Everything we produce is free of charge and can be ordered from our website. Related resources: The U.S. Department of State Consular Notification and Access Page Free consular notification resources for corrections agencies |
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