TRANSNATIONAL CONSTITUTIONAL LAW--PROPOSED LEGISLATION WITH EXECUTIVE SUPPORT TO ENACT INTERNATIONAL COURT'S DECISION DOES NOT JUSTIFY STAY OF EXECUTION--Garcia v. Texas, 131 S. Ct. 2866 (2011).
The Vienna Convention on Consular Relations (Vienna Convention) obligates government authorities under international law to inform detained foreign nationals of their right to contact a consular officer. (1) The United States ratified the Vienna Convention in 1969 and initially joined the Optional Protocol Concerning the Compulsory Settlement of Disputes to the Vienna Convention (Optional Protocol), which gave the International Court of Justice (I.C.J.) jurisdiction over Vienna Convention matters. (2) However, in 2005, the United States withdrew from the Optional Protocol based on inappropriate interpretations by the I.C.J. (3) Even before this withdrawal, I.C.J. decisions under the Vienna Convention did not have the force or effect of domestic law. (4) In Garcia v. Texas, (5) the U.S. Supreme Court considered whether proposed legislation implementing an I.C.J. decision should warrant a stay of execution for a Mexican national. (6) The Court, in a 5-4 decision, declined to stay the execution. (7)
In 1994, Leal Garcia (Garcia) kidnapped, raped, and killed sixteen-year-old Adria Sauceda in San Antonio, Texas. (8) Texas authorities did not notify Garcia, a Mexican national, of his right to contact a consular officer. (9) A Texas jury found Garcia guilty of capital murder and sentenced him to death. (10) After the Texas Court of Criminal Appeals affirmed Garcia's conviction and denied his state habeas corpus application, Garcia filed a federal habeas corpus petition, alleging trial errors, ineffective counsel, and the unconstitutionality of Texas's capital sentencing. (11) Garcia had not alleged any violations of his consular rights, and the Fifth Circuit denied his application. (12)
Subsequent to Garcia's first set of appeals, the I.C.J. determined that various authorities in the United States violated the consular rights of numerous Mexican nationals, including Garcia. (13) Garcia attempted to file a second state habeas corpus application based on the I.C.J. findings, but the Texas Court of Criminal Appeals denied Garcia's application under an abuse-of-writ statute prohibiting second or successive petitions. (14) When Garcia filed a second federal habeas corpus petition on the same basis as his state petition, the Fifth Circuit held that Garcia's subsequent petition procedurally was not prohibited as a "second or successive" petition because Garcia raised a new claim based on the I.C.J. decision; however, substantively, his claim became moot as soon as the Supreme Court decided the I.C.J. decision had no domestic effect. (15) Garcia filed a third set of state and federal habeas corpus petitions, as well as for stay of execution, based on a proposed senate bill enacting the I.C.J. decision; this legislation could grant Garcia a future hearing to determine whether Texas violated Garcia's consular rights. (16) The Supreme Court granted review to determine whether the possible legislation justified a stay of execution. (17) The Court held that the proposed senate bill--despite being well-supported--did not warrant a stay of execution, especially when any violation of the Vienna Convention was harmless. (18)
In order to facilitate consular functions, the Vienna Convention demands that a foreign national be informed of his consular rights when detained. (19) The Vienna Convention does not propose any remedies for violations, but it does grant jurisdiction to the I.C.J. for treaty interpretation and dispute resolution. (20) In one such case, the I.C.J. determined that fifty-one Mexican nationals, including Garcia, had been deprived of their consular rights by the United States, and the I.C.J. ordered "by means of [the United States'] own choosing, review and reconsideration of the convictions and sentences of the Mexican nationals." (21) Then-President George W. Bush issued a memorandum to the Attorney General declaring that the United States would "discharge its international obligations ... by having State courts give effect to the [I.C.J.] decision." (22) Despite presidential support, in Medellin v. Texas (Medellin I), the Supreme Court ruled that I.C.J. decisions under the Vienna Convention are not binding as domestic law; rather, the I.C.J. decisions are an international obligation. (23)
Pursuant to Medellin I, Congress must enact an I.C.J. decision under the Vienna Convention to make the decision binding on state and federal courts. (24) In June of 2008, Representative Howard Berman introduced the Avena Bill before the House in order to enact the I.C.J. decision. (25) In Medellin v. Texas (Medellin II), the Supreme Court denied a stay of execution for Jose Ernesto Medellin--another Mexican national named in the I.C.J. decision--based on the mere proposal of legislation in the House of Representatives. (26) The Court reasoned that the Executive Office, i.e., the President and Department of Justice, did not seem to support the proposed legislation, thus the enactment of the Avena Bill was too remote a possibility to set aside a state court judgment. (27) The Court also emphasized that the petitioner was not prejudiced by his lack of consular access: "The beginning premise for any stay, and indeed for the assumption that Congress or the legislature might seek to intervene in this suit, must be that petitioner's confession was obtained unlawfully." (28)
On June 14, 2011, Senator Patrick Leahy introduced the Consular Notification Compliance Act (CNCA) to enact the I.C.J. decision in light of Garcia's imminent execution. (29) In contrast to the Avena Bill, Senator Leahy testified that the CNCA has the support "of the Obama administration, including the Department of Justice, the Department of Defense, the Department of Homeland Security, and the Department of State." (30) Secretary of State Hillary Clinton and Attorney General Eric Holder sent a joint letter of approval for the CNCA to the Senate. (31) Active and retired military leaders, as well as ambassadors, testified to the importance of implementing the CNCA. (32)
In Garcia v. Texas, (33) the Supreme Court declined to stay the execution of a Mexican national based on proposed legislation. (34) The Court decided that the petitioner's due process claim--that a person has a right not to be executed in light of pending legislation--was meritless, and commented: "[W]e are doubtful that it is ever appropriate to stay a lower court judgment in light of unenacted legislation. Our task is to rule on what the law is, not what it might eventually be." (35) Regarding international consequences, the Court emphasized that the legislature did not find the consequences grave enough to promptly enact legislation, noting that seven years have passed since the I.C.J. ruling. (36) The Court concluded by observing that the petitioner would not succeed in overturning his conviction because the violation of his consular rights was not prejudicial. (37) Justice Breyer--dissenting with three other justices--would have stayed the execution based on balancing the strength of the international obligations and foreign affairs, against the minor interest in immediate execution. (38) Distinguishing Medellin II, the dissent also stressed that the legislation has a reasonable possibility of passing, and the legislation has more support from the executive branch. (39)
Facing a case factually similar to the Court's precedent, the Supreme Court correctly denied Garcia's application for a stay of execution. (40) Although some language in Medellin II highlighted the lack of support from executive officials for the proposed legislation, this language was not necessary, critical, or controlling in denying Medellin's stay of execution. (41) The Court clarified, using...