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July 7, 2011

Split 5-4, SCOTUS refuses to block Texas execution of Mexican national

As noted in prior posts, Texas has plans this evening to execute a Mexican national whose consular right were violated in his prosecution for murder. And, as now reported at How Appealing and at SCOTUSblog, the Justices this afternoon refused to issue a stay even upon the request of the US Solicitor General.

The Court's per curiam ruling, along with Justice Breyer's dissent, are available here.

UPDATE: As reported in this local article, Texas carried out the execution without a hitch:

Strapped to the gurney in Huntsville's death chamber Thursday evening, Humberto Leal Jr. used his last words to apologize to both his family and the family of his victim, a San Antonio teen. “I have hurt a lot of people,” he said. “Let this be final and be done. I take the full blame for this. I am sorry and forgive me, I am truly sorry.”

Witnessing his execution was his attorney Sandra Babcock, his sister and three friends. The family of his 16-year-old victim, Adria Sauceda, was not present. Robert McClure, the man who prosecuted Leal in 1995, attended with another Sauceda family friend.... Leal began his last statement at 6:10 p.m. and the lethal dose of drugs was administered a minute later. “I am sorry for the victim's family and what I had did,” he continued. “May they forgive me. I don't know if you believe me.”

Leal ended by saying, “One more thing, Viva Mexico, Viva Mexico.” “Ready warden, let's get this show on the road.” He was pronounced dead at 6:21 p.m.

The execution came 17 years after the gruesome sexual assault and bludgeoning death of Adria, who was last seen alive with Leal after a neighborhood party in the early hours May 21, 1994.

The teen's nude body was found on a dirt road that ended in a wooded, secluded area not far from the South Side party. A 35- to 40-pound rock was used to bludgeon her in the face and head. A stick was left protruding from her body.

July 7, 2011 at 06:47 PM | Permalink

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Justice served: Humberto Leal was executed Thursday for the rape-slaying of a 16 yr old after the U.S. Supreme Court turned down a White House-supported appeal to spare him in a death penalty case where Texas justice triumphed over international treaty concerns.

Humberto Leal, 38, received lethal injection for the 1994 murder of Adria Sauceda. She was raped and fatally bludgeoned with a piece of asphalt.

Leal was pronounced dead at 6:21 p.m. EDT (2221 GMT).

Posted by: DeanO | Jul 7, 2011 7:49:47 PM

Can the ICJ issue an international arrest warrant for contempt of court? I'd really like to see one with Rick Perry's name on it. Not that it would ever get enforced in the US, but I would like the idea of it hanging over his head if he ever traveled outside the country.

Posted by: The Death Penalty Sucks. | Jul 7, 2011 8:00:09 PM

@TDPS
Why not, they're a waste of money already. They might as well waste some time.

Posted by: MikeinCT | Jul 7, 2011 8:06:39 PM

"@TDPS
Why not, they're a waste of money already. They might as well waste some time."

Why do you think that the ICJ is a waste of money? Is it because capital punishment isn't available there?

Posted by: The Death Penalty Sucks. | Jul 7, 2011 8:15:40 PM

TDPS --

This is the first time I've seen you express a punitive attitude toward anything, and sure enough, it's not toward the thug who raped and murdered a helpless teenage girl, but toward a Governor who WON his case in the SCOTUS and acted consistently with its ruling today, not to mention numerous prior rulings by state and federal courts. I take it these rulings don't count in the face of consternation by a bunch of international blowhards who have nothing that even resembles sovereignty.

Posted by: Bill Otis | Jul 7, 2011 8:28:58 PM

I think that I can understand why the US Supreme Court would decline to stay. What would be point of staying it when there is in reality no law binding the states to the Vienna Convention Treaty? (I am not sure that Congress would go to the extent of making the law retroactive.) I just wish that my home state had sentenced Garcia to LWOP, instead of death penalty, but such is life - actually a waste of one MORE life. I just hope that other not-so-democratic countries that are signatories to the Vienna Convention Treaty - in which our citizens are being held for utterly trivial offenses - would let the arrestees the right of consular notification.

Posted by: John Marshall | Jul 7, 2011 8:53:09 PM

TDPS

all that Perry could do tonight was grant a 30 day reprieve. In Texas, the Board of Pardons and Paroles must approve a commutation before the Governor can commute it.

Also, the ICJ/World Court is a tribunal that is a waste of time with no enforcement. Remember they "ordered" Iran to release our 52 hostages. Real good mandate there.

Posted by: DaveP | Jul 7, 2011 8:53:52 PM

John Marshall

Humberto Leal's case was a great example of why people should be sentenced to death. Did you read the details of the crime? The last couple of weeks all I hear about is the ICJ and their 7 year old ruling. Medellin and the other similar situated inmates have had more than enough time to petition Congress to pass legislation. It didn't happen. Even so, 4 justices wanted to give Leal more time. Leal got to live on death row even longer than his victim did her whole life.

Posted by: DaveP | Jul 7, 2011 9:01:03 PM

Amen, Bill !

Posted by: P.S. Ruckman, Jr. | Jul 7, 2011 9:06:19 PM

DaveP:

I hear you loud and clear, but I still do not agree that death penalty is necessary. I am against death penalty, because there is always a possibility that a wrong defendant is convicted. In fact, Texas has the most number of death-penalty cases overturned on the basis of new evidence. I have not read Garcia's case, but I will take your word at face value and say that his crime is gruesome and perhaps deserves death penalty in the eyes of many. However, is there a way whereby we can "conclusively" determine that a conviction is not wrongful before we take a defendant's life? Is there a forensic technique that is 100% certain? As regards the Congress's action, as I mentioned on another psot on the same topic as here elsewhere, I do not know if a Congressperson tried to introduced a bill, and if yes, what happened to it. We may have to dig up the legislative history to find if and when such a bill was introduced and what happened to it?

At bottom, it behooves the several states to follow the specific article of the Vienna Convention Treaty - just as we do the Miranda rights - for the sake of following international law and keeping our citizens out of harm's way.

Posted by: John Marshall | Jul 7, 2011 9:26:20 PM

"TDPS --

This is the first time I've seen you express a punitive attitude toward anything, and sure enough, it's not toward the thug who raped and murdered a helpless teenage girl, but toward a Governor who WON his case in the SCOTUS and acted consistently with its ruling today, not to mention numerous prior rulings by state and federal courts. I take it these rulings don't count in the face of consternation by a bunch of international blowhards who have nothing that even resembles sovereignty."

Shouldn't Perry be held to a higher standard? He's an elected official, and he knowingly violated a treaty that the United States is a party to. That's kind of a big deal, isn't it? What happened to the victim was horrible, but that doesn't justify ignoring international obligations.

Posted by: The Death Penalty Sucks. | Jul 7, 2011 9:40:34 PM

TDPS

Read Medellin vs. Texas and my earlier post to you.

Posted by: DaveP | Jul 7, 2011 9:46:07 PM

"TDPS

Read Medellin vs. Texas and my earlier post to you."

I've read all of that. Perry allowed an execution to go forward when it was in direct violation of our treaty obligations.

Posted by: The Death Penalty Sucks. | Jul 7, 2011 9:56:21 PM

TDPS

if you read it, you are not getting it.

Once again, Perry can only grant a one time 30 day reprieve. He can not commute a death sentence unless the Board recommends it. The Board of Pardons and Paroles should be receiving your criticism, not Perry.

SCOTUS has ruled that Texas does not have to follow the ICJ ruling. It is that simple. Why can't you get it?

Posted by: DaveP | Jul 7, 2011 10:06:20 PM

"TDPS

if you read it, you are not getting it.

Once again, Perry can only grant a one time 30 day reprieve. He can not commute a death sentence unless the Board recommends it. The Board of Pardons and Paroles should be receiving your criticism, not Perry.

SCOTUS has ruled that Texas does not have to follow the ICJ ruling. It is that simple. Why can't you get it?"

I get it just fine. Perry had the authority to stop the execution, even if it was only for a 30 day reprieve. Perry knew the execution was a violation of our treaty obligations. Perry nevertheless allowed the execution to go forward. What part of that don't you get?

Posted by: The Death Penalty Sucks. | Jul 7, 2011 10:26:58 PM

TDPS

Why would Perry grant a 30 day reprieve for Leal when he declined to do so for Medellin 3 years ago? It is the same issue with a different inmate.

Posted by: DaveP | Jul 7, 2011 10:40:44 PM

"TDPS

Why would Perry grant a 30 day reprieve for Leal when he declined to do so for Medellin 3 years ago? It is the same issue with a different inmate."

Perry understood that Texas was violating the treaty when Medellin was put to death. He understood that Texas was violating the treaty when Leal was put to death earlier today. The fact that Perry is intransigent doesn't mean that his actions are justifiable.

Posted by: The Death Penalty Sucks. | Jul 7, 2011 10:52:09 PM

TDPS --

"Shouldn't Perry be held to a higher standard?"

He should be held to a standard of obedience to the orders of the United States Supreme Court, and he met that standard. All the arguments about international obligations were presented to that Court by the most able advocates in the country, including the Solicitor General. The Court rejected them. Perry is entitled to rely on that ruling and the accompanying order.

"He's an elected official, and he knowingly violated a treaty that the United States is a party to."

But Texas was not a party to or signatory of the Treaty, and thus not bound by it. As the SCOTUS determined in Medellin, the Treaty only binds state officers if it is implemented by Congress. Congress has refused implementation for seven years, and there is zero likelihood that Congress will implement it now, with Lamar Smith as the head of House Judiciary.

"That's kind of a big deal, isn't it? What happened to the victim was horrible, but that doesn't justify ignoring international obligations."

Please see above.

Posted by: Bill Otis | Jul 7, 2011 10:55:35 PM

Professor Ruckman --

Thanks!

Posted by: Bill Otis | Jul 7, 2011 11:03:39 PM

TDPS

Perry didn't "understand" he was violating anything with Medellin or Leal. SCOTUS says Texas is justified with not following the ICJ mandate and that is it.

Let us assume that Perry did issue a 30 day reprieve. After the 30 days, the state would petition the district court to reset the execution date. Leal could have asked the Parole Board again for a delay to allow more time for possible pending legislation to gain track as the 4 dissenters opined. Perry could not issue another reprieve and to end this, could not commute the sentence unless the Board approved it.

Posted by: DaveP | Jul 7, 2011 11:03:59 PM

TDPS

it looks like Perry might make a run for the Republican nomination for President. I take it he wouldn't have your vote?

Posted by: DaveP | Jul 7, 2011 11:11:08 PM

Maybe I'm not following either.

SCOTUS, in Medellin, said the treaty was not applicable to the States. As governor, Perry had no duty other than to enforce and uphold the laws of the State of Texas.

I also believe the legal question is being missed under the guise of pro- or anti-DP discussion.

The record is clear that Texas did not prevent Leal, or others similarly situated, from seeking help with the Mexican consulate. The failure was on the part of the arrested - later convicted and sentenced - to inform law enforcement they were illegaly in the country. A state should not be held to a legal standard they couldn't meet because a defendant was unwilling to disclose his illegal immigration status. That status was not disclosed and Texas had no reason to determine it. Leal solely made the decision to keep quiet his illegal status and paid the ultimate criminal penalty in this country.

Posted by: ih8tofly | Jul 7, 2011 11:20:36 PM

ih8tofly

good points. My fellow blogger is obviously against the DP, which is his right. He doesn't seem to understand Medellin and the Texas system for Pardons and Paroles as well as Gov. Perry's limited role in capital cases.

Posted by: DaveP | Jul 7, 2011 11:26:38 PM

@TDPS
"Why do you think that the ICJ is a waste of money? Is it because capital punishment isn't available there?"

Because it has no real jurisdiction. In addition, should countries allow the ICJ or the Hague to prosecute war criminals who have butchered thousands then the harshest punishment they can hand them is maybe 20 years in a prison that's nicer than most dorm rooms.

Posted by: MikeinCT | Jul 7, 2011 11:52:47 PM

An argument that has been ignored at the peril of every American citizen traveling abroad, and at the reputation (such as it is) of the US in making, recognizing and abiding by international treaties.
And for what? To perform an act of needless human butchery.
Justice Stephen G. Breyer, in a dissent joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, wrote that the government’s request was modest, given that allowing the execution to proceed would, in the solicitor general’s words, “cause irreparable harm” to “foreign-policy interests of the highest order” and endanger Americans traveling abroad.

The court should defer to the executive branch’s assessment, Justice Breyer wrote, as “the Court has long recognized the president’s special constitutionally based authority in matters of foreign relations.”

He proposed issuing “a brief stay until the end of September” to allow Congress time to act.

“In reaching its contrary conclusion,” Justice Breyer wrote, “the Court ignores the appeal of the president in a matter related to foreign affairs, it substitutes its own views about the likelihood of congressional action for the views of executive branch officials who have consulted with members of Congress, and it denies the request by four members of the Court to delay the execution until the Court can discuss the matter at conference in September. In my view, the Court is wrong in each respect.”

Posted by: peter | Jul 8, 2011 5:48:47 AM

Peter: As always, not a single word about the murder victim. You are a left wing, government dependent individual who cares only about the murderer because it generates government make work jobs for lazy, slow shuffling, on break now, government workers. This makes all abolitionist arguments ones in bad faith, serving economic self interest. You and all other abolitionists need to start to add a standard disclosure at the end of every comment.

I suggest the following after every argument to avoid the appearance of an economic conflict of interest.

"I am a government dependent worker. I support the end of of the death penalty because a live murderer generates a lot of government make work jobs. The murder victim does not. The deceased murderer does not. The above comment has an economic self-interest, and its credibility should be judge accordingly."

Posted by: Supremacy Claus | Jul 8, 2011 6:14:01 AM

This argument has no substance because he received good legal representation, is admitting his guilt, asking for forgiveness, which he should be granted but still be executed. The outcome would be the same if he had met with a consular official , and no mistake has been made.

As to the argument that Americans will be deprived of visits by worthless consular officials, American prisoners are better off not hearing, "There is nothing your US government can do for you. See if your family can arrange to have someone deliver your meals daily, or else there will be no food provided in this Third World hellhole."

Posted by: Supremacy Claus | Jul 8, 2011 6:20:11 AM

What we need is the general constitutional right not to be criminalized to be recognised by the Supreme Court, see Dennis J Baker's Right not to be Criminalized: Demarcating Criminal Law's Authority, (Ashgate, June, 2011).

http://www.ashgate.com/default.aspx?page=637&edition_id=14348&title_id=11108&calctitle=1

'Baker's remedy to the crisis of unjust punishment is to locate a fundamental right not to be criminalized in the U.S. Constitution and its international counterparts. He persuasively argues that the time has come to take this fundamental right seriously. Legislatures that follow Baker's sage advice will produce a more just and enlightened penal code.'

How can be engage in such practices and then lecture China and other countries about the virtues of human rights?

Posted by: Sarah Wood | Jul 8, 2011 6:27:51 AM

My deepest sympathy to the victim and her family. No one deserves this:

Sauceda, according to court documents, was found naked when authorities discovered her body in May 1994. "There was a 30- to 40-pound asphalt rock roughly twice the size of the victim's skull lying partially on the victim's left arm," court documents read. "Blood was underneath this rock. A smaller rock with blood on it was located near the victim's right thigh. There was a gaping hole from the corner of the victim's right eye extending to the center of her head from which blood was oozing. The victim's head was splattered with blood." A "bloody and broken" stick roughly 15 inches long with a screw at the end of it was also protruding from the girl's vagina, according to the documents.

And this is why there needs to be a death penalty. The federal govt should threaten to without DOJ funding to any state who does not have the death penalty on the books. They dont have to actively pursue it but they must have it on the books for the occasional Ted Bundy, Charles Manson, and Humberto Leal.

Posted by: DeanO | Jul 8, 2011 7:31:23 AM

Supremacy - as usual you focus on death instead of life. By doing so you have no regard for victims, but prolong their suffering for years and years. Yes, I know you would execute anyone convicted to murder straight after trial, or as near to as you possibly could, but the evidence clearly is that many factors come into play post-trial to demonstrate that error has been made, or worse. Those fortunate to attract the support of high-quality legal representation post trial (poorly paid trial attorneys are mainly appointed by the courts regardless of qualification and experience), can rightly embark on a critical review both of the legal process, and to a lesser extend a review of evidence against them. The large numbers who's cases are then reversed or sentences commuted, etc. demonstrate the fallibility of the prosecution system. You may have noted the the family of the victim chose not to attend the execution. I can only imagine the anguish they have been through given the publicity once again given to the murder, and the graphic detail of it, but I rather think the victim would rather have spared them this, and all the years preceding. While everyone can understand the emotion following the crime and subsequent trail, that should be the cut-off point at which they rebuild their lives (and protect and support the family generations to come) ... not allow the State to condemn them and their loved ones to ongoing misery.

Posted by: [email protected] | Jul 8, 2011 8:53:15 AM

John Marshall (and others) --

Foreign countries will treat arrested American citizens in a way consistent with the national interest (read: economic interest) of that country, regardless of what any particular treaty might require. That's how the world actually works.

This is the reason, for example, that after Texas executed Medellin three years ago, over exactly the same Treaty claim SCOTUS rejected yesterday, there was little to no adverse reaction by Mexican authorities to American tourists or businessmen. Indeed, I have not heard of a single instance of abusive treatment of Americans that can be traced to Medellin's execution. If anyone can provide reliable documentation of such a case, I'm all ears. Until they do, it's nothing more than guessing, and guessing is unpersuasive in court and elsewhere.

Indeed, in the Leal case more than in Medellin, the Mexican government had at most a formalistic interest. Medellin, if I recall correctly, had actual, real-life ties to Mexico. Leal did not. He was born there, but left at the age of two. There is no evidence known to me that he thought of himself as Mexican, or even knew that he was a Mexican citizen. As I say, the Mexican interest, such as it may have been, was formalist, not substantive. This was a case of going through the motions.

As to the necessity of the death penalty: I agree that it is not necessary. Of course prison is also, in the same sense, not necessary. If every prison in the USA flung open its doors this afternoon, the world would not come to an end. It also would not end next month or next year.

And, of course, it occasionally happens that innocent people are sent to prison. Sometimes they languish there for many years. We could prevent this very bad thing from happening by simply abolishing prison.

So why don't we?

The answer is that we don't abolish prison because, notwithstanding its costs, risks and drawbacks, we are, overall, better off with it than without it. The prudent question is not whether it's "necessary." The prudent question is whether it's better than the alternative of doing away with it. And the answer, given by virtually every country on earth, is, "you bet."

The same reasoning applies to the death penalty. The question is not whether it is, in some oddly rigid sense, "necessary." The question instead is, are we better off overall having the option of the DP as the punishment for extreme and savage murders, like Leal's. The answer, adopted by Texas, the decided majority of states and the federal government, is "yes." This same answer is embraced by the great majority of the American people, as it has been for decades. And it is the law in other advanced and democratic countries such as Japan, South Korea, India and Indonesia.

Adult life does not provide the luxury of foot-stomping purism. We are consigned to choose among altervatives, each with its own costs and benefits. The principal moral cost of the DP is the possiblity of executing an innocent person (although there is no consensus evidence that we have done such a thing in half a century or more, see Scalia's concurrence in Kansas v. Marsh). The principal moral benefit is that it's the only justice that even remotely fits for some particularly gruesome, sadistic or breathtaking crimes, from Leal to McVeigh to John Wayne Gacy.

To me, as to most others in this country, the balance of costs and benefits weighs in favor of keeping the option of the death penalty.

Posted by: Bill Otis | Jul 8, 2011 8:55:01 AM

"There is no evidence known to me that he thought of himself as Mexican"

Leal's last words are reported to have been, "Viva Mexico!" That aside, you point on Mexico acting consistent with its economic interest is spot on.

Posted by: C | Jul 8, 2011 9:13:00 AM

C --

What with all the fuss in the years FOLLOWING his conviction and sentence, I'm sure he knew he was Mexican by at least the time Medellin was decided. The question is whether he knew it when he was arrested and booked, and I still have no information that he did, much less that the cops did.

Posted by: Bill Otis | Jul 8, 2011 9:38:40 AM

Bill - spot the other advanced and democratic countries:

For your information, the following are the only countries that executed anyone in 2010 (+ = probably more unreported):
China 1000s
Iran 252+
North Korea 60+
Yemen 53+
United States of America 46
Saudi Arabia 27+
Libya 18+
Syria 17+
Bangladesh 9+
Somalia 8+
Sudan 6+
Palestinian Authority 5
Egypt 4
Equatorial Guinea 4
Taiwan 4
Belarus 2
Japan 2
Iraq 1+
Malaysia 1+
Bahrain 1
Botswana 1
Singapore +
Viet Nam +

Posted by: peter | Jul 8, 2011 12:19:09 PM

@peter
Malaysia, Indonesia, Taiwan and Japan.

Posted by: MikeinCT | Jul 8, 2011 12:50:12 PM

MikeinCT --

It's useless. Peter is completely closed-minded on this subject, and determined to condemn the United States (and anyone who agrees with the United States) as barbaric. You could name 10,000 advanced, democratic countries and it wouldn't make a difference.

He's as much as said that facts don't matter. No death penalty, ever, no matter what. Period.

If in any other context in criminal law, you said facts don't matter, you'd be laughed off stage. But abolitionists accept it as, not merely routine, but as Holy Writ.

It's because peter is so closed to hearing the other side that he makes no effort whatever to engage my cost/benefit argument, which at least attempts to give a fair-mined assessment of both the benefits and the drawbacks of the DP (and incarceration, for that matter).

Peter deserves credit for consistency, but, unfortunately, it's a consistency weighted down -- indeed drowned -- with the defects of its virtues.

Posted by: Bill Otis | Jul 8, 2011 1:38:27 PM

It is true that other countries will treat us (U.S. citizens) in a way that will be in their best interest will we are the dominent economic power in the world.
Yet another reason to get the debt problem under control and raise taxes on the wealthy.
BTW, how are those hikers in Iran doing?

Posted by: anon2 | Jul 8, 2011 3:45:36 PM

Bill Otis (“BO”):

While I see and understand your viewpoint, I MUST say that I beg to differ with you on some the points that you have raised. (Having said that, as you may well know, I do agree with you on many issues.) Let me try to address as many of your contentions as possible a la Virginia (AKA “Ginny,” who is a poster on this blog):

BO: “Foreign countries will treat arrested American citizens in a way consistent with the national interest (read: economic interest) of that country, regardless of what any particular treaty might require. That’s how the world actually works.”

JM: Yes, and no. You have to ask yourself: Why do certain economically advanced (and to a great extent, less dependent on the US) countries as the UK, France, Germany still respect the Vienna Convention Treaty (“VCT”)? Yes, economics may be the reason why Mexico is not clamoring on Garcia’s execution as much as it did on Medellin’s, because it may be more dependent on the US now than before; or it may be that it has more pressing issues to contend with. (As they say, the way to man’s heart is through his gut; but I believe this also applies to countries.) In any event, nowadays, the US is losing its economic clout and quite precipitously so. (I do not have to tell you this; one has to just look around one’s own neighborhood.) Hence, it may not be as much of an incentive as it was in the past.

BO: “If anyone can provide reliable documentation of such a case, I’m all ears.”

JM: In numerous instances, we do not hear about our citizens’ being unlawfully arrested and detained (in abysmal conditions, I might also add), perhaps because they are not allowed to contact our consular officers in their respective countries, in the first instance! We hear about our citizens’ detention if and only when their families (or friends) contact the US State Department and the US State Department, in turn, contacts the “host” country officials; and these cases are few and far between. (This is also one of the reasons why the State Department strongly advises our citizens to notify the consulates of their “movements” in the host country.) The way I read the Garcia per curiam decision denying the stay rests on the following grounds: lack of US Supreme Court’s jurisdiction to order a stay; hypothetical nature of the passage of the Leahy bill; no allegation of any substantive error in the Garcia proceedings below; and perhaps the futility of the stay because it was not argued whether the proposed legislation would be retroactive. And I agree with that decision. (In fact, I had stated so in one of my other posts on this blog.)

BO: “Indeed, in the Leal case more than in Medellin, the Mexican government had at most a formalistic interest. Medellin, if I recall correctly, had actual, real-life ties to Mexico. Leal did not. He was born there, but left at the age of two. There is no evidence known to me that he thought of himself as Mexican, or even knew that he was a Mexican citizen. As I say, the Mexican interest, such as it may have been, was formalist, not substantive. This was a case of going through the motions.”

JM: Are you saying that just because Garcia had been here as a toddler, he should be treated just as we would treat any American citizen? If yes, then why are we detaining hundreds and hundreds of “persons” in deplorable conditions (keep in mind that the immigration detention is considered “civil,” not “criminal”) and deporting them en masse although they had been here as infants and toddlers? We cannot have the cake and eat it too. You cannot have it both ways – on one hand, say that they are not American citizens, and therefore, they are “removable”; and on the other hand, claim that they are not entitled to the protection (in this instance, I try not to distinguish between “procedural” and “substantive” rights) afforded by international treaties to which we are signatories. Nobody put a gun to our head and made us sign these treaties. We did with our eyes wide open and with our country’s and its citizens’ interests in mind. If we try to have it both ways, then I am afraid that we would be reeking of hypocrisy at its nadir, and we should not even begin to wonder why other people do not like us. While we are at it, we may also ponder why certain countries simply refuse to extradite our own citizens from their countries. Hmm…. (I have my thinking cap on! Perhaps, some of the readers see that as a dunce cap. (:-))

I am certain you know that the XIV Amendment to the US Federal Constitution, in relevant, states: “nor deny to any person within its jurisdiction the equal protection of the laws.” The important phrase is “any person” making the Due Process clause applicable to all persons – regardless of whether they are here legally, or illegally – within its jurisdiction.
The problem that I have is this: What is the great difficulty in giving the arrestees this trivial recitation and an opportunity to call their respective countries’ consular officials? Ultimately, it may not mean much by way of the ultimate conviction and judgment, but at least we know that we do indeed honor our agreements and it does not cost us anything significantly. Above all, we can show the rest of the world that we practice what we preach and that we are above the nitpicking trivialities. I would like to think that we can and will lead the rest by example, rather than just incessantly preachifying as to how great we are and how we live in the “greatest democracy” that this world has ever seen. Well, I am from Missouri (“Show Me”); actually, I am a native Texan living in Pennsylvania. Also, since you use the word “formalist” repeatedly in your post, allow me to say this: Why can we not also be a “formalist” and recite that language anyway and get it out of the way? I would rather be a “strict proceduralist” than called a “hypocrite” no matter what the costs. As an aside, why do we go after war criminals in other countries, et al (i. e., when it suits us), if we do not believe in the fundamental human fairness? In many cases, these alleged war criminals did nothing to us personally.

BO: “As to the necessity of the death penalty: I agree that it is not necessary. Of course prison is also, in the same sense, not necessary. If every prison in the USA flung open its doors this afternoon, the world would not come to an end. It also would not end next month or next year.
And, of course, it occasionally happens that innocent people are sent to prison. Sometimes they languish there for many years. We could prevent this very bad thing from happening by simply abolishing prison.
So why don’t we?
The answer is that we don’t abolish prison because, notwithstanding its costs, risks and drawbacks, we are, overall, better off with it than without it. The prudent question is not whether it’s “necessary.” The prudent question is whether it’s better than the alternative of doing away with it. And the answer, given by virtually every country on earth, is, “you bet.”
The same reasoning applies to the death penalty. The question is not whether it is, in some oddly rigid sense, “necessary.” The question instead is, are we better off overall having the option of the DP as the punishment for extreme and savage murders, like Leal’s. The answer, adopted by Texas, the decided majority of states and the federal government, is “yes.” This same answer is embraced by the great majority of the American people, as it has been for decades. And it is the law in other advanced and democratic countries such as Japan, South Korea, India and Indonesia.
Adult life does not provide the luxury of foot-stomping purism. We are consigned to choose among alternatives, each with its own costs and benefits. The principal moral cost of the DP is the possibility of executing an innocent person (although there is no consensus evidence that we have done such a thing in half a century or more, see Scalia’s concurrence in Kansas v. Marsh). The principal moral benefit is that it’s the only justice that even remotely fits for some particularly gruesome, sadistic or breathtaking crimes, from Leal to McVeigh to John Wayne Gacy.
To me, as to most others in this country, the balance of costs and benefits weighs in favor of keeping the option of the death penalty.”

JM: You are comparing apples and oranges and it, I am afraid, is not aiding in the explication of why the death penalty is necessary. As a matter of fact, I have stated numerous times that prison should be reserved only for violent crimes and not for the everyday, run-of-the-mill offenses. I have also cited certain offenses for which the alleged offenders do not belong in prison and that we would be better served through other forms of remedies.

In my mind, the death penalty should be reserved exclusively for heinous crimes that could be proved with 100% certainty; i. e., not even a beyond-a-reasonable-doubt standard would suffice. I fully realize that it may not be possible to prove a crime with 100% certainty. I am using this standard, because we are also taking a life, while we are accusing the defendant of the same. If we were proved to be wrong after we unjustly executed (all executions are unjust in my mind, but that is an issue for another day), how could we bring that person back to life? I do not have problem incarcerating people who are convicted of heinous crimes, provided that IF they were wrongfully convicted we might be able to remedy the wrongful conviction and the concomitant incarceration. However, once a defendant is executed, there is no way (under current technological state) that we could bring that person alive. I am not at all religious (in fact, I do not believe in God), but I am saying this for the benefit of people who believe in God and religion: Who are we to play God? Are you not playing God by deciding a person’s life and death? Although I do not believe in God, I do very strongly believe in karma and conscience. (These are also topics for another day, perhaps even another forum.) Karma follows everyone, Bill. One may think that he/she has got away with a crime, but it is just a matter of time before one’s deed (karma) catches up with him/her.

I would like to ask all the proponents of death penalty this: Has any of you had a family (even extended) member executed, or even incarcerated unjustly? I would like to see a show of hands so that I can understand their point of view better.

With all the foregoing said, I would err on the “cautious” side in any case that affects one’s “fundamental rights.” In Thomas Jefferson’s parlance, I would rather let a hundred guilty men go free rather than sending one innocent man to the gallows. At bottom, the cost of a wrongful death cannot be justified for any reason.

Posted by: John Marshall | Jul 8, 2011 3:48:51 PM

anon2 --

Do you have any concrete evidence that Iran's treatment of the hikers will vary one way or the other because Texas executed Leal? Could you provide a link to that evidence?

Beyond that, do you believe that SCOTUS should decide cases based on how it guesses a rogue state will react? Do you think that will make for sound jurisprudence?

Posted by: Bill Otis | Jul 8, 2011 4:41:55 PM

Otis-

"But Texas was not a party to or signatory of the Treaty, and thus not bound by it."

Texas couldn't be a party to the treaty even if they wanted to be ("No state shall enter into any treaty"), so that line of reasoning isn't going to get you very far. I realize the first semester of constitutional law was several decades ago, but even a cantankerous elder like you should remember that one.

"As the SCOTUS determined in Medellin, the Treaty only binds state officers if it is implemented by Congress."

That is an extremely misleading summary of Medellin. What they actually said in Medellin is that there is no JUDICIAL REMEDY for a Vienna Convention violation absent congressional action. ALL NINE OF THEM agreed that the Vienna Convention and the ICJ ruling applied to Texas, they just said that it was a matter to be dealt with by the political branches of government in the absence of a judicial remedy. Read Stevens' concurrence.

DeanO-

"Perry didn't "understand" he was violating anything with Medellin or Leal. SCOTUS says Texas is justified with not following the ICJ mandate and that is it."

No that is not it, Medellin in no way says that Texas is not covered by the Vienna Convention and the ICJ's interpretation of it. Medellin says there is no judicial remedy for any violation that takes place. See above comments directed at The Otis.

Posted by: The Death Penalty Sucks. | Jul 8, 2011 6:00:14 PM

Sucks (as long as we're using just last names) --

That there is a Constitutional prohibition against a state making treaties does not change the fact (indeed in reinfores the fact) that (1) Texas is not a signatory, and (2) a party to litigation, including a governmental party, cannot be bound by an agreement -- a treaty or anything else -- it has not signed. That is a principle of common law almost as old as I am.

What the Court said in Medellin is that the Vienna Convention has no practical force to compel Texas to do anything until and unless Congress says so. Congress has not said so, and that ends the matter. Of course it might say so in the future; there's just not a ghost of actual evidence that it will (as it has not in the seven years since Avena).

I haven't read Stevens' concurrence for a while, but I have read enough concurrences to know that what they really are is a Justice's attempt to make like the majority said what he wanted, but failed to persuade it, to say. This makes a difference when the concurring vote is needed to get to five, but that was not the case in Medellin (decided 5-1-3).

P.S. The skinny on all the enthusiasm for international law isn't that hard to figure out. International law is dominated by nose-in-the-air Western Europeans, whose elite class is hostile to the DP. So by inserting international law into (or preferrably, from the abolitionist perspective, above) domestic law, abolitionists hope to take down capital punishment in the USA. This would be a neat trick, since our domestic political and judicial branches have heavy majorities that support the DP. Thus, abolitionism would live out its dream: It would knock off the DP without ever having to win the domestic public debate about it, a debate that every poll shows it's losing badly.

Cool! The abolitionists' problem is that, with the current SCOTUS and Congress, it ain't gonna happen.

Posted by: Bill Otis | Jul 8, 2011 6:49:19 PM


Bill,
I'm agreeing with you as you posted earlier
"Foreign countries will treat arrested American citizens in a way consistent with the national interest (read: economic interest) of that country, regardless of what any particular treaty might require. That's how the world actually works."
Can Iran be bought? I don't know but its worth a try to get those hikers out. Negotiation hasn't seemed to work with them.
I hope SCOTUS doesn't make decisions based upon the actions of rogue states. I think it would make a mockery of our legal system. SCOTUS should stick to making decision that way the world and our justice system actually works. Money always makes the final decision, (in an "Adult world free of foot stomping purism") just like in the SCOTUS decision on Citizens United.

Posted by: anon2 | Jul 8, 2011 8:37:31 PM

anon2 --

"Can Iran be bought? I don't know but its worth a try to get those hikers out. Negotiation hasn't seemed to work with them."

Correct: Negotiation with no muscle behind it hasn't worked and won't work. Buying them off will simply incentivize more bad behavior in the future.

I suggest that President Obama make them an offer they can't refuse.

Posted by: Bill Otis | Jul 8, 2011 11:23:18 PM

i agree bill. i say we NUKE a small city. then inform iran that we will continue to NUKE one city per day till our citizens are on a plane leaving their country ALIVE. failure to relase them alive will result in IRAN becoming the next GIANT MIRROR for use in an earth based telescope! after we nuke it into a plain of glass!

Posted by: rodsmith | Jul 9, 2011 11:05:19 AM

I still fail to see why Congress has not taken up this issue if it is so important. I have not heard one word of this since Medellin in 2008. Why have they waited until another Texas inmate was scheduled to die before starting another protest? I read Hillary Clinton was "deeply concerned" about Texas carrying out the execution. Leahy and others have had more than enough time to implement legislation and have not done so or have not been successful. What makes them think it would pass now?

So we can compare Leal to other similar incidents: How many Americans have killed citizens of other countries abroad?

Posted by: DaveP | Jul 9, 2011 12:01:22 PM

DaveP --

"I still fail to see why Congress has not taken up this issue if it is so important."

Bingo.

Your key word is "if." The truth is that no one gives a hoot; they just pretend to when a publicized execution hoves into view.

The idea that an adult who's been living in the USA since he was two needs (or wants) to hear from the consulate of Mexico is so far-fetched I doubt anyone believes it.

This was just another hook for abolitionists to try to stop an execution. It's said to be about the Treaty and consular notification and all that, but like so many things that are said in this town, it's all hokum. It's to stop the execution of a stone-cold, bloody killer by hook or by crook.

Posted by: Bill Otis | Jul 9, 2011 5:50:21 PM

Bill Otis:

One good place to look for information on the severity of detention abroad even for silly offenses may be the National Geographic Channel's Locked Up Abroad program. I do not know the show's timings, but am sure that you can get it from its website. (Caveat: This program apparently also includes detainess from the UK and other countries.)

Posted by: John Marsahll | Jul 10, 2011 1:39:01 AM

Bill Otis

well put. One thing we have to admire about the anti DP gang is their intensity and refusal to give up rehashing the same issues over and over. Sometimes they're persistence pays off.

Posted by: DaveP | Jul 11, 2011 5:40:07 PM

John Marshall --

I have no doubt that detention in some countries is God awful. The question is whether those countries would change their behavior if we had not executed Leal (or Medellin three years ago), and no one has posted a bit of actual evidence that they would.

Posted by: Bill Otis | Jul 11, 2011 7:15:38 PM

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