Was Humberto Leal’s Execution Legal?

I’ll give you the answer out front: yes and no. Now I’ll explain.

You might be aware of Texas’ execution of a Mexican national, Humberto Leal Garcia. When the United States Supreme Court denied a stay of his execution, it caused a brief media flurry. Here are articles from just a few of the organizations reporting on the matter:

The general theme is that Texas breached the Vienna Convention when it carried out the execution of Mr. Leal. The reason: the United States is a member of the Vienna Convention on Consular Relations, and all parties to that treaty have agreed that they will allow foreign nationals accused of crimes in their countries to have consular access. Article 36(1)(b) of the treaty defines a nation’s obligations, requiring that:

if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this subparagraph[ . ]

Put simply, in addition to the typical Miranda warnings that police must give to an accused, foreign nationals must also be informed that they have a right to consular access. Mr. Leal was never informed of his right to access. To that end, it is clear that Texas violated the treaty.

But it’s not that cut and dried.

This was not the first time Texas has failed to inform an accused. In Medellin v. Texas, 552 U.S. 491 (2008) (Medellin I), the United States Supreme Court dealt with this same general issue. Medellin is worth reading if you have the time because it actually covers a fair bit of explanatory ground, but the key holding for our purposes is that the Vienna Convention is not a “self-executing treaty” automatically enforceable against the states by the federal government. See 552 U.S. at 498-99. What does this mean?

With respect to American law, there are generally two types of treaties: those that are self-executing and those that are not. In other words, some treaties become binding upon the states as soon as the United States signs on to them. Most don’t—the Congress has to pass appropriate legislation making them binding on the states. Since the Vienna Convention was held to be non self-executing, the Court found that Texas was not bound by the treaty.

In Medellin v. Texas, 554 U.S. 759 (2008) (per curiam), the Court again dealt with the matter. This is a separate opinion, which typically is called Medellin II.  In this opinion, the Court rejected Medellin’s claim that his execution should be stayed due to future legislation not yet enacted. As the Court quoted in its order denying a stay for Mr. Leal, “Congress has not progressed beyond the bare introduction of a bill in the four years since the ICJ ruling and the four months since our ruling in [Medellin I].”  Leal Garcia v. Texas, 564 U.S. ____, ____ (2011) (per curiam) (quoting Medellin II, 554 U.S. at 760).

All of this established that, currently, the various states are not subject to the Vienna Convention on Consular Relations. Thus, a foreign national has no right to consular access in America. That’s US law, plain and simple, until Congress passes the appropriate legislation.

And that’s where Mr. Leal’s case comes in. In his request for a stay, he and the United States as an amicus argued that, because there is legislation currently pending to make the Vienna Convention binding on the states, his execution should be stayed until that legislation is passed. In a 5 to 4 per curiam order, the Court rejected that argument by saying

[i]t has now been seven years since the ICJ ruling and three years since our decision in Medellín I, making a stay based on the bare introduction of a bill in a single house of Congress even less justified. If a statute implementing Avena had genuinely been a priority for the political branches, it would have been enacted by now.

Leal Garcia, 564 U.S. at ____. The Court went on to reject the argument espoused by the United States government and Justice Breyer that executing Mr. Leal would put a serious strain on US-International relations:

Congress evidently did not find these consequences sufficiently grave to prompt its enactment of implementing legislation, and we will follow the law as written by Congress. We have no authority to stay an execution in light of an ‘appeal of the President,’ presenting free-ranging assertions of foreign policy consequences, when those assertions come unaccompanied by a persuasive legal claim. 

Id. at ____ (citation omitted).

Justices Breyer, Ginsburg, Sotomayor, and Kagan dissented. Writing on their behalf, Justice Breyer mostly took issue with the harm that proceeding with the execution might do to US-International relations. Yet, the more compelling argument (in my opinion at least) comes at the end of the dissent. Justice Breyer noted that the Court would “almost certainly grant the petition for a writ of certiorari, vacate the judgment below, and remand the case for further proceedings consistent with that law” when Congress passes the pending legislation. Id. at ____ (Breyer, J. dissenting).  Accordingly, a stay would be appropriate to “preserve . . . ‘potential jurisdiction.’” Id. (citing FTC v. Dean Foods Co., 384 U.S. 597, 603 (1966)). Indeed, Breyer argued well that “it is difficult to see how the State’s interest in the immediate execution of an individual convicted of capital murder 16 years ago can outweigh the considerations that support additional delay, perhaps only until the end of the summer.”  Id.

All of this is to say that Texas both did and did not violate international law. Based solely on the text of Article 36(1)(b), Texas clearly did breach the treaty. However, based on the United States Supreme Court’s precedent, this doesn’t matter because Texas wasn’t bound by the treaty. That’s where the real controversy lies. There is disagreement not only externally (i.e. the UN v. the U.S.) about whether states must follow the treaty but also internally (i.e. the Obama administration v. the Supreme Court). Whether this tension is resolved soon remains to be seen.

-Zachary Cloud

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