A Fate Better Than Death

By ANDREA SACHS.

There are few more likely candidates for capital punishment than Charles Ng, 30. The former U.S. Marine was charged in 1985 in California with a string of 13 murders involving torture and sexual abuse. But for the past six years, state officials have been frustrated in their desire to try Ng -- and possibly send him to the gas chamber on conviction. Reason: he fled to Canada in 1985, where he was apprehended but has managed to avoid extradition. His last line of defense is based on the harsh punishment he might face in California for his alleged crimes.

Last week lawyers for Ng and Joseph Kindler, a convicted Pennsylvania murderer who also escaped to Canada, appeared before seven justices of the Canadian Supreme Court at hearings in Ottawa. The court will rule whether the two men should be handed over to a jurisdiction where they could be executed. Canada abolished the death penalty in 1976; under a treaty with the U.S. ratified the same year, Ottawa has the option of refusing to transfer anyone unless the U.S. agrees in advance that the accused will not face death. So far, Canadian authorities have not sought those promises in the Ng and Kindler cases; the defendants' lawyers want the court to order Canada to do so. "Technical distinctions such as borders have little relevance when human life is at stake," argues Julius Grey, Kindler's lawyer. "Canada should not be party to anything to do with capital punishment."

If the Supreme Court agrees, it will be the latest instance of a growing problem for the U.S. justice system: most Western democracies have shunned the death penalty and are increasingly reluctant to be involved with it in any fashion. "We can't get most people back anymore from Europe, Canada and various other countries," says Richard Lillich, a professor of law at the University of Virginia. "In a substantial number of cases, we're going to find it exceedingly difficult, if not impossible, to get extradition for capital murder." The problem may grow larger as more and more U.S. jurisdictions apply capital punishment, which is legal in 36 states.

Extradition, the transfer of an accused person from one nation to another to face criminal charges, has always been based on voluntary agreements, which can contain explicit exceptions. Most nations, for example, will not extradite suspects accused of "political crimes." The U.S. will not extradite in some cases in which the defendant is a political refugee, cannot get a fair trial or is likely to be tortured.

The charge of murder, however, is particularly sensitive, since it is universally regarded as among the worst of crimes. In 1989 the U.S. received a rare rebuff from the European Court of Human Rights in the case of Jens Soering, who was arrested in Britain after murdering his girlfriend's parents in Virginia in 1985. Eventually 18 Court of Human Rights judges unanimously upheld Soering's claim that his extradition would breach the European Convention on Human Rights, which forbids "cruel and unusual punishment." The judges felt that the prohibition would apply to any circumstances in which Soering might be found guilty and have to await execution on death row.

U.S. officials eventually guaranteed that Soering would not face the death penalty; he was returned to the U.S. last year and sentenced to life in prison. Last November a similar commitment was made in the case of Charles Donald Short, a U.S. Air Force sergeant stationed in the Netherlands, who had allegedly murdered and dismembered his wife in 1988. Dutch justices cited the same convention before Short was handed over to U.S. authorities.

In Canada groups such as Amnesty International have been arguing against Ng's return, but 100,000 Canadians have written to the government to insist that he be sent home. Says George Bears, a director of Victims of Violence, an advocacy group: "If Canada doesn't return Ng to the U.S. unconditionally, then Canada's status as a haven for capital-murder cases will be guaranteed." Concurs Bill Domm, a Member of Parliament: "We should not be judging the American justice system." In the U.S., argues Ward Campbell, a California deputy attorney general, "we have a system for capital punishment that gives the defendant unparalleled procedural protection." In fact, California has not executed anyone for 24 years. Mass murderers Charles Manson and Juan Corona were sentenced to death, but their sentences were commuted to life in prison.

Some countries, on the other hand, have shown that they can overlook the death penalty even while they officially decry it. Mexico and the U.S., for example, have an extradition treaty similar to the U.S.-Canada pact. But in 1989, Mexican authorities received no guarantees of mercy from the U.S. before swiftly deporting Ramon Salcido, 29, who had escaped to Mexico after a killing spree in California. Last December, Salcido was convicted on seven counts of murder and sentenced to death. He has appealed and is in San Quentin Prison. In his case, Mexican officials felt that good cross-border relations were more important than worries about one man's possible fate.

With reporting by Michael Brunton/London and Caroline Mallan/Ottawa