Wednesday, August 06, 2008

Medellin postscript

By a 5-4 vote, the Supreme Court allowed Jose Medellin's execution to move forward last night despite opposition from the World Court and the Bush administration.

I hope Medellin's death will bring the victims' family closure - whatever that means. But since his execution cannot bring back their lost loved ones, I doubt seriously those painful memories are "closed" for the victims' family and friends any more this morning than at this time yesterday. Such indescribable loss can never be cured IMO via mere retribution, however satisfying the idea may seem to contemplate. The promise of "closure" to me is one of the cruelest aspects of the modern death penalty advocacy - executions may accomplish many things but "closure" for victim families is rarely one of them. Some tragedies just haunt you forever.

Given that the only possible enforcement for Vienna violations would be action by the United Nations Security Council, in which the United States has a veto, it's hard to predict what will happen going forward. The legal debate over Medellin may end here for now, waiting to be renewed the first time some American is held incommunicado overseas and our government complains their Vienna rights were violated.

You can almost hear future officials from some corrupt government telling the United States "I'm sorry Mr. Ambassador ... local authorities made the decision to violate your citizens' rights, so even though we have a treaty saying she could speak to the consulate, they didn't tell her she could do so and we have to abide by their decision. Our hands are tied." That's essentially what last night's SCOTUS decision said to the rest of the world. "We may enter treaties, but we'll pick and choose when we will abide by them.

In what strikes me as an oddity, the SCOTUS majority offered an unsigned per curiam opinion while we're treated to four different dissents (see the opinions here). Though we obviously know which five approved of the opinion, apparently nobody wanted their name on this one.

The court had held 6-3 earlier this year that Texas was not bound by the Vienna Convention - a 45 year old treaty guaranteeing foreign nationals arrested will be told of their right to notify their country's consular authorities - because Congress had not passed enabling legislation. Justice John Paul Stevens sided with the majority in the earlier ruling but switched to a dissent because he felt Texas has not lived up to its responsibility. This paragraph of Stevens' summed up my own views on the question:
As I explained in my separate opinion in March, the cost to Texas of complying with the ICJ judgment “would be minimal, particularly given the remote likelihood that the violation of the Vienna Convention actually prejudiced” this petitioner. 552 U. S., at ___ (slip op., at 5) (STEVENS, J., concurring in judgment). “On the other hand, the costs of refusing to respect the ICJ’s judgment are significant. The entire Court and the President agree that breach will jeopardize the United States’ ‘plainly compelling’ interests in ‘ensuring the reciprocal observance of the Vienna Convention, protecting relations with foreign governments, and demonstrating commitment to the role of international law.’ ”
The most interesting and extensive dissent came from Justice Breyer, who was also part of the earlier minority on Medellin:
In my view, several factors counsel in favor of delay. First, since this Court handed down Medellín, Mexico has returned to the ICJ requesting this Nation’s compliance with its international obligations; and the ICJ has asked that the United States “take all measures necessary to ensure that [the Mexican nationals] are not executed” unless and until they “receive review and reconsideration consistent” with the ICJ’s earlier Avena decision. See Request for Interpretation of the Judgment of 31 March 2004 in the Case Concerning Avena and Other Mexican Nationals (Mex. v. U. S.), 2008 I. C. J. No. 139, ¶80 (Order of July 16).

Second, legislation has been introduced in Congress seeking to provide the legislative approval necessary to transform our international legal obligations into binding domestic law. See Avena Case Implementation Act of 2008, H. R. 6481, 110th Cong., 2d Sess. (2008) (referred to committee, July 14, 2008).

Third, prior to Medellín, Congress may not have understood the legal need for further legislation of this kind. That fact, along with the approaching election, means that more than a few days or weeks are likely necessary for Congress to determine whether to enact the proposed legislation.

Fourth, to permit this execution to proceed forthwith places the United States irremediably in violation of international law and breaks our treaty promises.

Fifth, the President of the United States has emphasized the importance of carrying out our treaty-based obligations in this case; this fact, along with the President’s responsibility for foreign affairs, makes the Executive’s views of the matter pertinent.

Sixth, different Members of this Court seem to have very different views of what this case is about. In my view, the issue in this suit—what the majority describe as the “beginning premise”—is not whether a confession was unlawfully obtained from petitioner. Cf. ante, at . Rather, the question before us is whether the United States will carry out its international legal obligation to enforce the decision of the ICJ. That decision requires a further hearing to determine whether a conceded violation of the Vienna Convention (Texas’ failure to inform petitioner of his rights under the Vienna Convention) was or was not harmless. Nor do I believe the majority is correct insofar as it implies that Congress has had four years to consider the matter. See ibid. (“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 Medellín v. Texas”). To the contrary, until this Court's decision in Medellín a few months ago, a member of Congress might reasonably have believed there was no need for legislation because the relevant treaty provisions were self-executing. It is not realistic to believe Congress could act to provide the necessary legislative approval in
only a few weeks’ time.
Breyer's final point - that people disagree what the case is really about - strikes me as a fundamentally true statement not just about the court but the public debate surrounding the whole case. Like Breyer, I was startled to see the majority's reference to challenging the confession as the only valid reason to allow review of the consular notification requirement. That's not correct at all from my perspective, and clearly Breyer's - the reason to hold such a hearing is because the United States agreed to abide by the treaty, not because of any specific aspect of Medellin's case in particular.

This sets an odd precedent going forward - that states are not bound by federal treaties without specific enabling legislation. I wonder how many other treaties this might implicate where states are now free to violate agreements the President entered into on the nation's behalf? What does it mean when the federal government undertakes international treaty obligations that states intentionally violate? Given the Supemacy Clause, it's hard for me to understand how a single state can initiate such a dispute with foreign nations in violation of treaties that the US Consitution makes "the supreme Law of the land."

Finally, Julian Ku over at Opinio Juri identified an oddity in Texas' final pleading to SCOTUS in which the Lone Star State promises to give future defendants hearings as mandated by the ICJ, but out of "comity" not because of any legal obligation. Ku notes:
it is not clear from the brief whether Texas is also undertaking to give the type of “review and reconsideration” required by the ICJ. I have to assume that there is some difference between what Texas thinks “review and reconsideration” means via the Vienna Convention, and what the ICJ thinks, since it is executing Medellin with the claim that he got all the review and reconsideration required. But plainly, the ICJ does not believe Medellin’s habeas hearing satisfies the “review and reconsideration” requirement. And since the ICJ is the institution that basically invented this requirement, why shouldn’t their views on what “review and reconsideration” means prevails?
I agree with Ku that when Texas promised "review and reconsideration," they weren't remotely promising to comply with the ICJ ruling but with their own Texas version of cursory review to be pulled out of the black-robed behinds of the Court of Criminal Appeals at some future date. IMO we shouldn't read too much into this promise.

This was a bizarre and complex case: I can't think of a single other instance where a state's actions violated a US treaty and it was allowed to stand by the federal courts at the end of the day. Yesterday's execution and the subsequent treaty violation it spawned will be the subject of intense debate and international controversy for many years, I'm sure, plus one suspects it may also show up as the topic of more than a few exam questions about international law.

See more coverage compiled at the Stand Down blog.


TxBluesMan said...

I can think of one immediately where, although SCOTUS ruled in favor of the treaty, the Federal government acted anyway in contravention of the treaty - the removal of the Five Civilized Tribes on what is commonly called the Trail of Tears...

I'm sure that I could provide examples where treaties with the Native American tribes were violated and the courts took no action.

Anonymous said...

Andrew Johnson, the dude on the twenty dollar bill, was famous and even POPULAR for breaking treaties with the Native people...

Anonymous said...

the cost to Texas of complying with the ICJ judgment "would be minimal, particularly given the remote likelihood that the violation of the Vienna Convention actually prejudiced" this petitioner.

Justice Stevens is wrong. The cost to Texas wouldn't be minimal if the Congress passed a retroactive law providing treaty enforcement while Texas was still in the process of re-trying the Medellin case. It would be a huge loss to Texas and to Texans not to have been able to inject that gang-banging maggot Medellin with a little crime vaccine.

Thank dog for the good folks at TDCJ who worked late last night making sure Medellin got the cure.

Anonymous said...

"I hope Medellin's death will bring the victims' family closure - whatever that means."

No you don't. The rest of your post makes clear that you barely care.

Writing the above statement at the top of that post is like when somebody says "I don't mean to be rude but..." and then they proceed to be rude anyway.

Anonymous said...

Screw the Mexican government, they outright encourage their citizens to break our immigration laws. Even the supposedly "pro-USA" leaders like Vicente Fox do it.

Also their local governments are corrupt and helping sneak drugs into the USA so they have no business complaining about the actions of our local governments. I'd bet a dollar to a donut that Washington has a more positive influence over what happen in on Austin than Mexico DF has on Monterrey.

/just sayin'

Anonymous said...

Even when inmates or their families are absoultely aware of the possiblity of foreign nationals being transfered home, and apply through the correct channels to do so, Gov Perry still wont sign the paperwork. There are plenty of inmates in TDCJ right now who could be sent to their country of origin, and not all of them are Mexican.

Anonymous said...

Sorry, I can't muster much (actually ANY) sympathy for Medellin. His lawyers were trying a stall tactic 4 years AFTER the fact. The SCOTUS ruled and justice was served.

Anonymous said...

So someone who brutally killed someone was in turn killed. Throw in all the extra drama u like but the outcome was just.

Having worked with someone who had a family member who was murdered, and then having seen that murdered executed, i can tell you it WAS a closure for them. revenge probably, but closure non the less.

Anonymous said...

You're absolutely pathetic--with your smarmy condecension about closure and retribution.

Anonymous said...

Your continued analogy of this factual scenario: "some American is held incommunicado overseas and our government complains their Vienna rights were violated.
You can almost hear future officials from some corrupt government telling the United States "I'm sorry Mr. Ambassador ... local authorities made the decision to violate your citizens' rights, so even though we have a treaty saying she could speak to the consulate, they didn't tell her she could do so and we have to abide by their decision. Our hands are tied"
with the actual facts of this case is so absurd and intellectually lazy that it makes it extrememly difficult to take anything you say seriously.

Anonymous said...

Charles Kiker here:

Well Scott, you have been thoroughly anonymously skewered. I suppose it's easier to attack someone anonymously. That's something I don't like about these blogs. I can see TYC or TDCJ employees needing the security of anonymity. But no one should be attacked anonymously like you have been in this post. But I guess if you don't mind then neither should I.

I will agree with your attackers that if anyone deserved the death penalty it would be Medellin. But honoring the treaty would not have had a 2% chance of avoiding the death penalty.

But as I have said before, this case was not really about the merits or demerits of the death penalty, but about treaty obligations. Beyond that, it was about Texas. Texas said, in effect, "We are not subject to the United States government." The U.S. did not break the treaty; it was Texas. If Texas wants to thumb its collective nose at the U.S. government, the next time Cornyn, Hutchison, Thornberry et. al. bring home some pork, just send it back.

Anonymous said...

We do not teach people that it is wrong to kill by killing.


Anonymous said...

Who cares? Thats not the point. The point is you get what you deserve. If you kill somebody we kill you back. No "higher" justification is required.

Gritsforbreakfast said...

Bluesy and 10:47, good points - perhaps I should have said "modern" treaty.

Rev. Kiker, most of those anonymous comments you're reacting to are the same person coming back over and over. It's not like THAT many people abuse comment privileges. Anonymous cowards and blowhards are annoying but at the end of the day don't bother me much. The protections for state employees and others similarly positioned via anonymity to me makes it worth putting up with it. It's not worth responding to, though.

Finally, to the person who wrote "If you kill somebody we kill you back." That's not true. In 2007, 849 people were sent to TDCJ on homicide convictions. Only 14 were death sentences. If what you say were true, IMO it would substantially change the balancing calculus in this case. It just isn't.

dudleysharp said...

The execution of Jose Medellin: Texas fulfilled their obligations
Dudley Sharp, Justice Matters, contact info below

The only treaty violation was that Texas failed to notify the rapist/torturer/murderer, Jose Medellin, "you can contact your consulate if you wish", as per the Vienna Convention (1963) (1).

That statement is to be given to a foreign national upon detention on foreign soil.

Medellin grew up in Texas, spent his later 15 years in Texas, prior to committing these heinous acts when he was age 18. He attended Texas schools. Texas did not know Medellin was a Mexican national. (2)

Medellin and his attorneys were never prevented from contacting his consulate. They were free to have contact with the consulate or consulate attorneys, whenever they so desired. They chose not to for 4 years. Their choice.

The US admitted its error, that it violated the VC, by not informing Medellin that he could contact his consulate. As a simple matter of practicality, who doesn't know they can contact their own consulate?

Again, there was never a refusal to allow such contact.

Some say that US citizens may be subject to additional abuse because of Texas' decision to execute this rapist/torturer/murderer. Why? Let's look at the abuse.

An equal "abuse" would be to arrest US citizens for just cause and fail to tell them "you can contact your consulate, if you wish to". While all citizens would like to get such notice and are entitled to it, did all countries, or any country, give such notification to all detained US citizens, since 1963? Of course not.

Texas didn't know Medellin was a Mexican national. Almost no US police officers had even heard of the Vienna Convention, prior to 1997. Were any police, anywhere in the world, aware of the Vienna Convention since 1963? Did they recite it when they didn't know the detainee was a foreign national? Of course not.

That said, they treaty should be honored and such notification should be given.

As the US never denied violating the notification provision, the real issue before the ICJ was "what remedy exists for that violation?" That issue is part of the Vienna Convention and has been addressed by the ICJ and all parties.

Both the ICJ and the VC instruct that the taking authority (Texas/US) should work within their own system of justice to find the legal remedy for that error.

Texas would have done so, even without the ICJ ruling. Texas provided extensive review of the notification issue, inclusive of oral arguments before the Texas Court of Criminal Appeals, wherein it was found that the lack of notification resulted in no harm to Medellin and that the execution should go forward.

Our treaty obligation was fulfilled.

Evidently, ICJ didn't like that result and demanded an additional, new hearing.

Texas said no, for three reasons. First, the ICJ's additional demand was unwarranted, both legally and practically. Secondly, the result would have been the same, as a matter of law. Thirdly, the legal process had determined that the ICJ did not have authority over Texas courts to force an additional hearing or any hearing. So, Texas says no to the ICJ and all other denouncers by not repeating a process that had already taken place.

Medellin was justly executed, based upon 15 years of extraordinary due process protections.

My opinion is that this case was brought, exclusively, as an anti death penalty cause, and, possibly, with a wee hint of anti-Americanism, and not as a principled stance in support of consular rights.

Fact: Mexico, intentionally, included only death penalty cases and avoided all other non death cases of detained Mexican nationals within the US.

Fact: Had this really been about consular rights and the honoring of treaties, Mexico would have filed ICJ lawsuits against every country that had violated the Vienna Convention, with regard to the detention of Mexican nationals. Mexico didn't.

Fact: Mexico only singled out the US, strictly avoiding non death penalty cases. The Vienna Convention applies to all cases of detention. Any lawsuit, based upon principle, would have been directed at all violators and for all cases. Mexico didn't do that.

Wouldn't we would all like to see what percentage of foreign nationals, detained in Mexico, since 1963, had been properly notified "you have the right to contact your consulate, if you wish." What do you think? 1%-5%? Maybe less?

NOTE: The Vienna Convention specifically states that it does not infer individual rights, but is to facilitate consular relations.

The only human rights violation in this case was the hour long gang rape/torture/murder of two wonderful girls, Elizabeth Pena, 16, and Jennifer Ertman, 14.

Remember them?

Take a look.

(1) Vienna Convention on Consular Relation (1963), Article 36, paragraph b, last sentence

(2) From a practical standpoint, is there no obligation on the part of the detained party to notify the authorities of their foreign national status? Or, are all the world's police supposed to be clairvoyant?

copyright 1999-2008 Dudley Sharp
Permission for distribution of this document, in whole or in part, is approved with proper attribution.

Dudley Sharp, Justice Matters
e-mail, 713-622-5491,
Houston, Texas

Mr. Sharp has appeared on ABC, BBC, CBS, CNN, C-SPAN, FOX, NBC, NPR, PBS , VOA and many other TV and radio networks, on such programs as Nightline, The News Hour with Jim Lehrer, The O'Reilly Factor, etc., has been quoted in newspapers throughout the world and is a published author.

A former opponent of capital punishment, he has written and granted interviews about, testified on and debated the subject of the death penalty, extensively and internationally.

Pro death penalty sites


www(dot) (Sweden)

dudleysharp said...


I fully agree with you on closure, as do most of the folks I have dealt with on the death penalty.

Dudley Sharp
Closure to what?
I know of no victim survivor who believes that the execution of the guilty murderer(s) brings closure to the emotional and/or psychological suffering  of that victim survivor for the loss of their innocent, murdered loved one(s). How could it?
I have never encountered such a person, in the many years I have been involved with murder victim survivors. Has anyone?
There are many victims survivors who claim they did find closure with the execution, although without important clarification.
Further inquiry would reveal the obvious: it is closure to the legal process, whereby execution is the most just sanction available for the crime and they are relieved that the murderer is dead  and can no longer harm another innocent - a very big deal.
Those are the real meanings of any closure expression.

Murder victim "Mary Bounds' daughter, Jena Watson, who watched the execution, said Berry's action deprived the family of a mother, a grandmother and a friend, and that pain will never go away."

"We feel that we have received justice," she said Wednesday after the execution. "There's never an end to the hurt from a violent crime. There can never fully be closure. You have to learn to do the best you can. Tonight brings finality to a lot of emotional issues." "

Ina Prechtl, who lost her daughter  Felecia Prechtl. to a rape /murder said,  after watching Karl Chamberlain executed: "One question I ask myself every day, why does it take so long for justice to be served?"  It took 17 years for the execution. ("Texas executes 1st inmate since injection lull", Jun 11, 2008, MICHAEL GRACZYK, Associated Press Writer, HUNTSVILLE, Texas)

Anonymous said...

that sure is a whiny blog / post you put together there Grits. sure hope you don't get made, take your ball and go home.

Anonymous said...

dudleysharp wins the internets!

Anonymous said...

How difficult would it be, at the start of any police interview, to tell the suspect a simple sentence:

"If you are a foreign national, you have the right to contact your Consular representative."

Wouldnt that just clear it all up?

Gritsforbreakfast said...

Dudley, first, thanks for your affirming sentiments on the closure question. Clearly LWOP provides the legal closure you speak of much sooner and more assuredly than a death sentence. Emotional closure is a phantom and its promise IMO is a cruel joke.

Otherwise, you and others like Judge Cochran on the CCA say Texas fulfilled its obligations, but that's not the same as saying they complied with the treaty. The State Department and the ICJ, which is the entity formally charged with interpreting the treaty agreement and deciding whether a violation occurred, both say Texas did not.

Indeed, once the ICJ ruled, that ship sailed as far as the international law implications. They're the ones who interpret the treaty. After that, the only question was whether Texas would be allowed to enact a punishment that made its violation irreparable, and that's what happened.

The irony: If four years ago after the first ICJ ruling Texas had just complied and held a hearing to evaluate the Vienna claim, Medellin would likely have been executed long before now. It's stubborn American exceptionalism that drug this thing out - a narcissistic belief that we're not bound by constraints we expect to apply to other nations - not Medellin's defense counsel as so frequently alleged on these strings.

Anonymous said...

Let me say first off that I am in favor of the death penalty. I also think that this Medellin came into our country illegally and killed, raped, and murdered upon his arrival. If this does not enrage people I don't know what would. I think that his death, was too easy. It fiercely upsets me that we that millions of question marks are allowed to cross our border unchecked. We don't know if they are criminals, foreign militants, foreign terrorists or narco terrorists, murders, rapists, jail/prison escapees, thieves, sick or contagious, or generally bad news. I think that most of this could be prevented but it is not. Well I digress.

However, it is my opinion that we as Americans should look at this case as if we had been the ones arrested. If we entered into a treaty that says that we will tell a guy (or gal) that he has the right to contact his consulate, then hand the guy a phone and tell him. I don't think illegal aliens should get special treatment but if we were arrested abroad what rights would you or I want? Anyway, from now on, upon their conviction; tell them that they can contact their consulate, but don't let it slow American justice.

So if we enter a damn treaty we should honor that treaty. Its a promise and to me that means something.

dudleysharp said...

Dear GFB:

You're wrong on closure and LWOP. LWOP appeals can last for, well, life. So there is no guarantee of quicker legal closure with LWOP.

Furthermore, there is no reason for death penalty appeals to last longer than 7-10 years. LWOP is about 40 years.

Both the ICJ and the Vienna Concention state that the taking authority (Texas) is to settle any problems within their own laws - not outside them.

The hearing that the ICJ ordered was to determine if any prejudice occurred because of the violation. Even though procedurally barred, Texas looked at it anyway and found no prejudice.

We complied with the treaty.

Your irony is no irony, at all.

The legal issues were much more important than a faster execution for the gutless rapist/torturer/murderer who was justly executed, later.

Gritsforbreakfast said...

We've been through this, Dudley. If the death penalty weren't a political football and therefore a crap shoot, you'd be right. Since it is a political football, you're wrong that it provides better closure. Maybe there's no reason for longer delays than 7-10 years, but you an I both know they can go on for 25 and then still result in a sentence other than death.

I know you support the death penalty, Dudley, but saying it provides better closure don't make it so.