Heeding international criticism over the death penalty and hoping to safeguard Americans abroad, the Bush administration has ordered state courts to review claims by 51 Mexicans on U.S. Death Rows that their right to seek legal assistance from their own country was violated.
The order, part of a brief before the U.S. Supreme Court in the case of a convicted killer in Texas, is in response to an International Court of Justice ruling last year that found that state courts had violated the Mexicans’ international rights to have access to consular officials.
Though challenged by officials in Bush’s home state of Texas, the move was celebrated by the Mexican government and death-penalty opponents, who hope it will help the 51 Mexicans escape Death Row in seven U.S. states.
It also could help soothe tensions between the U.S. and much of the world over America’s refusal to abide by some international treaties and over concerns about how Americans will be treated around the globe.
“The president has determined that the foreign policy interests of the United States justify compliance with the [international court’s] decision,” said the brief filed by acting U.S. Solicitor General Paul Clement. “Consular assistance is a vital safeguard for Americans abroad, and the government has determined that, unless the United States fulfills its international obligation to achieve compliance with the [court] decision, its ability to secure such assistance could be adversely affected.”
In addition, the order should ease friction with Mexico over an important issue as Bush and Mexican President Vicente Fox prepare to meet March 23 at Bush’s ranch in Crawford, Texas.
`Very important step’
“It’s a very important step. Without a doubt it will have an important impact on the cases of our compatriots,” said Arturo Drager, a judicial adviser in Mexico’s Foreign Ministry.
The president’s memo means that the inmates should receive new court hearings to argue that their rights to consular assistance under the 1963 Vienna Convention were violated. That could be the first step toward receiving relief in the courts, though such claims traditionally have met with little success, and courts could determine the claims do not affect the cases.
“This is not a jailhouse-door opener. It’s just an opportunity to present their treaty claims,” said Lori Damrosch, a professor at Columbia University Law School who wrote a brief in support of the inmate at the center of the case.
The government of Mexico, where the constitution prohibits the death penalty, sued the U.S. before the international court last year. It argued that the trials of the Mexicans could have had different outcomes if consular officials had been able to translate for them, help them understand their rights and bring in character witnesses from their hometowns.
Texas begs to differ
In the wake of the Hague court ruling in March 2004, two Mexicans–one in Oklahoma, one in Arkansas–were taken off Death Row last year.
But other state officials, especially in Texas, have frequently dismissed the Hague ruling. As far back as 1997, when Bush was governor of Texas, his top legal counsel, Alberto Gonzales, now the U.S. attorney general, wrote a memo suggesting the Vienna Convention did not apply to Texas because the state was not a “signatory” to the treaty.
On Tuesday, a spokesman for the Texas attorney general’s office indicated that the state would likely contest efforts by defense attorneys to schedule new hearings in the death penalty cases.
“We respectfully believe the executive determination exceeds the constitutional bounds for federal authority,” spokesman Jerry Strickland said in a statement. “The State of Texas believes no international court supersedes the laws of Texas or the laws of the United States.”
U.S. signed treaty in ’69
The majority of the Mexicans on Death Row are in California, with 28, and Texas, with 15. The others are in Arizona, Florida, Nevada, Ohio and Oregon. In all, the U.S. has 118 foreigners from 32 countries on Death Row.
The U.S. signed the Vienna Convention in 1969. Proponents said it is important for the U.S. to respect the treaty if it expects other nations to guarantee the same right to Americans abroad.
The administration agreed in the brief submitted to the Supreme Court on Feb. 28. It said that complying with the World Court ruling would protect the interests of U.S. citizens abroad, promote effective foreign relations and underscore U.S. commitment to international law.
“The president, through this order, … has reaffirmed the importance of living up to the United States’ legal commitments to its treaty partners,” said Sandra Babcock, a Minneapolis attorney who represents Mexico in the death-penalty cases.
Mexican convicted in killings
The brief was filed in the death-penalty appeal of Jose Medellin. A Mexican who has lived in the U.S. since he was a boy, he was one of five gang members convicted in the brutal killings of two young women in Texas in 1993. Medellin was sentenced to death.
His appeal claims that the failure to inform him of his Vienna Convention rights requires the reversal of his conviction. Lower courts have rejected the appeal, saying he received “effective” legal defense and hadn’t raised the consular matter until after his conviction.
Kathryn Kase, a public defender who has two clients on Death Row in Texas, said the administration’s decision was significant. But she was skeptical that state courts would do much to review the Death Row cases until they hear directly from the Supreme Court on the Medellin case. Oral arguments are expected within the next month.
“It’s difficult to predict how the states will react,” she said. “Texas has been busy saying the World Court has no jurisdiction here, but now the commander in chief comes back and says the decision applies.”
