On November 14, 2003 a Federal Court of Appeals decided that neither the Extradition Treaty between the United States and Colombia nor the United States Attorneys office could prevent a Federal judge from sentencing an extradited Colombian to life imprisonment. In previous cases, the United States government pledged that it would not allow extradited defendants to receive life sentences. But yet in 2002 Alex Restrepo was sentenced to life imprisonment in the Southern District of New York after being extradited from Colombia for his participation in several robberies, one of which resulted in the death of a retired police detective. Before Colombia granted Restrepo’s extradition, they sought assurances that their national would not be subject to a life sentence. The United States responded by issuing this diplomatic note:
“Should Mr. Restrepo be convicted of the offenses for which extradition has been granted, the United States executive authority (the prosecutor), will not seek a penalty of life imprisonment at the sentencing proceedings in this case. The government of the United States also assures the government of Colombia that should the competent United States judicial authority nevertheless impose a sentence of life imprisonment against Mr. Restrepo, the United States executive authority (the prosecutor) will take appropriate action to formally request that the court commute such sentence to a term of years.”
On the strength of that “assurance” Colombia authorized Mr. Restrepo’s extradition. But in truth, a prosecutor cannot prevent a federal judge from sentencing a defendant to life in prison. The reason for this is because the U.S. is composed of three separate branches of government. Each branch operates independently and is often at odds with another. The United States Attorneys (the prosecutors) are part of the executive branch and the courts (the judges) are part of the judicial branch. So if the prosecutor, or “executive authority,” requests that a judge impose a non-life sentence, there can be no guarantee that this is what will happen, despite what Colombian law requires.
When Restrepo appealed his life sentence, he argued that the diplomatic note constituted an “absolute assurance” that he would not be sentenced to a life term. But the Court of Appeals determined that the note only said the prosecutor would do what it could to have a life sentence reduced to a term of years. A small consolation, less a guarantee.
This is an instructive case for Colombians fighting extradition. It clearly demonstrates that Colombian lawyers should be consulting U.S. defense attorneys while their clients are still in Colombia. Any U.S. criminal defense attorney would have known that the diplomatic note did not guarantee a non-life sentence. Colombian lawyers must argue that their government will not allow extraditions to take place until the U.S. proves that their “assurance” is absolute.
Unfortunately, President Uribe’s government cannot express surprise by the turn of events in Alex Restrepo’s case. There was a representation made by the prosecutor that the Colombian Government knew that the “assurance” was not actually a guarantee. If Columbia does not want its citizens to get life, they need to take a harder line on this condition.
One way the United States can guarantee that it will not impose a life sentence upon extradited Colombians is by indicting defendants with a narcotics charge that carries a maximum of forty years imprisonment. Such a charge exists, and a maximum of forty years would give the United States government the pound of flesh it seeks while also providing the Colombian government with the guarantee that it seeks. Unfortunately this will not help Alex Restrepo.