death penalty news—-USA

March 27


Amnesty International

USA: Government must ensure meaningful judicial review of Mexican death
row cases 27 March 2008 AI Index: AMR 51/025/2008

On 25 March 2008, in a case involving the USA's obligation to comply with
judgments of the International Court of Justice (ICJ), the US Supreme
Court ruled in favour of the State of Texas and against a Mexican national
on death row there. The Supreme Court has effectively passed the buck to
the other branches of government to act to ensure that the USA meets its
international obligations. Amnesty International urges them to do so.

The 6-3 ruling, Medelln v. Texas, concerns the case of Jos Medelln, a
Mexican national and 1 of 5 people sentenced to death for the murder of
14-year-old Jennifer Ertman and Elizabeth Pena, 16, in Houston in 1993.
All 5 were teenagers at the time of the crime. 2 of them who were 17, Raul
Villareal and Efrain Perez, had their death sentences commuted to life
imprisonment in 2005 following the Supreme Court's decision to exempt
under 18-year-olds from the death penalty (the USA, led by Texas, was
until then a world leader in executing child offenders). A 3rd, Sean
Derrick O'Brien, was executed on 11 July 2006. He was 18 at the time of
the murders, as were Peter Cantu and Jos Medelln, who remain on death row.

Under article 36 of the 1963 Vienna Convention on Consular Relations
(VCCR), the Texas authorities should have notified Jos Medelln "without
delay" after his arrest of his right to have the Mexican consulate
informed of his detention. They failed to do so. He subsequently became
one of more than 50 Mexicans on death row in the USA named in a case
brought against the USA by the government of Mexico in the ICJ, the
principal judicial organ of the United Nations (UN). By ratifying the VCCR
Optional Protocol on the compulsory settlement of disputes, the United
States recognized the authority of the ICJ to order legally binding
remedies for its Vienna Convention violations. On 31 March 2004, the ICJ
handed down its judgment (the Avena decision) finding that the USA had
violated article 36 of the VCCR by failing to notify the detainees of
their right to contact their consulate after arrest.

The ICJ stated that "the remedy to make good these violations should
consist in an obligation on the United States to permit review and
reconsideration" of the cases in the US courts, to determine any
prejudicial impact of the VCCR violation on the defendant. The Court
emphasised that this judicial review and reconsideration must be
meaningful and effective, and must relate to both sentence and conviction.
It added that the US doctrine of "procedural default" – whereby claims not
raised earlier are generally not considered by appellate courts – was not
a legitimate obstacle to such review. Moreover, review by executive
clemency authorities alone would not be sufficient, the ICJ stated. After
the ICJ's decision, the US Court of Appeals for the Fifth Circuit
dismissed Medelln's appeal on the grounds that the VCCR did not confer
individually enforceable rights and that his claims were anyway
procedurally defaulted. The Supreme Court agreed to take the case, but
before it heard oral arguments, President George W. Bush issued a
memorandum to the Attorney General stating that "the United States will
discharge its international obligations" under the Avena ruling, "by
having State courts give effect to the decision". The Supreme Court
dropped the case, but after the Texas Court of Criminal Appeals dismissed
Medelln's appeal, finding that neither the ICJ's opinion nor the
President's memorandum overrode limitations on the filing of successive
habeas corpus applications, the Supreme Court again agreed to consider the

In its ruling on 25 March 2008, a majority of Justices stated: "No one
disputes that the Avena decision constitutes an international law
obligation on the part of the United States. But not all international law
obligations automatically constitute binding federal law enforceable in
United States courts. The question we confront here is whether the Avena
judgment has automatic domestic legal effect such that the judgment of its
own force applies in state and federal courts." The majority found that it
did not. The VCCR Optional Protocol, they concluded, was not
self-executing (automatically enforceable as federal law upon
ratification) and no implementing legislation to give it such domestic
effect had been passed by Congress.

Having found that the Avena ruling did not constitute binding federal law
"that pre-empts state restrictions on the filing of successive habeas
petitions", the Justices moved on to consider whether the President's
memorandum to the Attorney General altered their conclusion. They
concluded that it did not. They said that although the President "seeks to
vindicate United States interests in ensuring the reciprocal observance of
the Vienna Convention, protecting relations with foreign governments, and
demonstrating commitment to the role of international law", even such
"plainly compelling" interests "do not allow us to set aside first
principles". Under the US system of constitutional government, they
continued, the President "has an array of political and diplomatic means
available to enforce international obligations, but unilaterally
converting a non-self-executing treaty into a self-executing one is not
among them. The responsibility for transforming an international
obligation arising from a non-self-executing treaty into domestic law
falls to Congress." Providing the effective judicial review mandated by
the ICJ for Jos Medelln and the other affected Mexican nationals on death
row would thus require the US administration to obtain implementing
legislation from Congress.

In a separate opinion concurring in the judgment, Justice Stevens
suggested that it was now up to Texas to ensure that the USA met its
international obligations. The "costs of refusing to respect the ICJ's
judgment are significant. The entire [US Supreme] Court and the President
agree that breach will jeopardize the United States plainly compelling
interests When the honor of the Nation is balanced against the modest cost
of compliance, Texas would do well to recognize that more is at stake than
whether judgments of the ICJ, and the principled admonitions of the
President of the United States, trump state procedural rules in the
absence of implementing legislation". Leaving it to Texas to protect the
rights of death row inmates is akin to leaving the fox to guard the
henhouse (a Harris County prosecutor in Houston has already been quoted as
saying that her office will seek an execution date for Jos Medelln). But
in any event, it is not just up to Texas. Under Article 27 of the Vienna
Convention on the Law of Treaties, the USA as a whole is obliged to meet
its treaty obligations, and may not invoke the provisions of its internal
law as justification for failure to do so. How it meets these obligations
is up to the US government, but meet them it must. The Supreme Court has
effectively passed the buck. It is up to other branches of government to
pick up the issue and ensure compliance with the Avena judgment.

Some 20 foreign nationals who were denied their consular rights after
arrest have been executed in the USA since 1988. There is evidence that
compliance with article 36 of the VCCR remains sporadic across the USA.
This is a matter of concern not only for the individuals concerned, but
also in relation to the damage that is done to the broader international
legal principle of consular protection. Failure to comply with the Avena
judgment will cause more such damage. Article 36 is an important
protection for foreign nationals detained abroad, and provides states with
the capacity to protect their nationals, including in cases where they may
be at risk of human rights violations. The USA should do all it can to
ensure that its officials adhere to article 36 across the country, and to
ensure effective remedies in those cases where this obligation was not

Meanwhile, the USA should reflect on its resort to the death penalty in an
increasingly abolitionist world, and resolve to end its use of this cruel,
brutalizing and outdated punishment.