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The Vienna Convention, Again

Humberto Leal is scheduled for execution in Texas tomorrow.  He was convicted of the rape and murder of Adria Sauceda, just 16, in 1994.  Among the evidence against him was Adria's bloody blouse found in his home.  AP story is here.

The Vienna Convention on Consular Relations requires notification of the consulate when a foreign national is arrested.  Leal immigrated to the U.S. from Mexico at the age of 1 1/2.

Article 36(2) of the Vienna Convention provides that rights under it must be asserted within the procedural rules of the jurisdiction.  In Breard v. Greene, 523 U.S. 371 (1998), the United States Supreme Court held (correctly, in my view), that this includes the same procedural default rule that applies to other rights, including those established by the Constitution.

The cases of a group of Mexican nationals, including Leal, went to the International Court of Justice.  That court held in 2004 that the procedural default rule could not be applied, at least in the circumstances of these cases.  The prisoners were entitled to hearings on the merits of their Vienna Convention claims, it said.
In Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006), the US Supreme Court reiterated its interpretation of the treaty.  The ICJ was wrong, and the precedent was not binding.  The petitioners in that case were not among those in the ICJ case.

In Medellin v. Texas, the US Supreme Court noted that the Optional Protocol to the Vienna Convention, to which the U.S. had been a party but has since withdrawn, requires compliance with the ICJ decision in the particular cases that were before that court, but it held this treaty was not self-executing.  It did not trump the law of a state unless and until Congress implemented it with a statute.  A memo from the President doesn't do it.

My own view is that Congress can and should implement the obligation of the United States under the Optional Protocol to obey the decision of the ICJ, even though erroneous, in the cases directly involved in that decision.  But we should not go one inch farther.

Regrettably, Senator Leahy's last-minute bill, S. 1194, goes miles farther. It would effectively overrule the Supreme Court's correct interpretation and permanently codify the ICJ's erroneous interpretation for all capital cases, not just the ones involved in the ICJ decision.  Even worse, it would provide for federal court litigation even if the case had been decided on the merits in state court, something not even the ICJ would have required.

Here are my suggested amendments to Senator Leahy's bill.  The amendments would fix the problems noted above.  Also, while we are on the subject of international aspects of the death penalty, it would address the problem of foreign interference in the execution of our law through restriction of the drugs used for lethal injection.

Leal has applied to the US Supreme Court for relief supported by the Governments of the United States of America and the United Mexican States.  (Si, that's Mexico's real name.)  He apparently filed the first petitions after the Court adjourned for the term.  His certiorari petition is 11-5001 (first in forma pauperis certiorari petition of the term), and his stay application is 11A1 (first application for other interim relief of the term).

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