Mar 26, 2008 To self-execute or not self-execute, that is the question! Or is it?
Yesterday saw five of the most conservative of the Supreme Court justices refusing to require a state court system (in Texas) to let an International Court of Justice ruling cause Texas to deviate from its law that does not permit more than one state-level habeas corpus proceeding. Medellin v. Texas, ___ U.S. ___ (March 25, 2008). Justice Stevens concurred in the majority opinion, but found much to like, as well, in the dissent of Justice Breyer, who was joined by Justices Souter and Ginsburg.
Criminal defendant Medellin’s habeas corpus action reviewed by the Supreme Court in Medellin was not a run of the mill habeas corpus action. Mr. Medellin is among the countless occupants of Texas’s death row. Although living in the United States since early childhood, he is a Mexican national who was questioned by the police, spilled the beans about his involvement in the gang rape and murder of two teenage girls, and apparently was denied his right under the Vienna Convention — a treaty passed by the United States Senate, with the Constitution including treaties among the supreme law of the land — to be advised of his right, as a non-United States citizen, to consult with a consular representative from his country of citizenship (who presumably would have told Mr. Medellin about his right to counsel and the extent to which the Mexican government would help him pay for or find a criminal defense lawyer or give him other advice). Medellin apparently raised the consular consultation issue in his second state habeas corpus petition in the light of the Avena decision from the International Court of Justice at the Hague, which directed United States courts to review the cases of several dozen convicts who alleged they were denied advice of their right to consular consultations under the Vienna Convention.
The lengthy Medellin majority and dissenting opinions cover much ground, and require more than the one quick reading I gave to give a sufficient overview of the ruling, aside from the following key points. Such blogs as Opinio Juris and Scotus address the opinion further than do I in this blog entry. Nevertheless, this is a very important Supreme Court ruling that has implications beyond criminal proceedings to reach the effect on American courts of the rulings of all international tribunals on both criminal and non-criminal matters (including international tribunals interpreting the application of NAFTA and the World Trade Organization).
Before going into some of the key points of Medellin, the very noticeable tension between the majority and dissent appears to revolve in large part around a reluctance of the majority to see American court sovereignty handed over so easily to international tribunals without that requirement being made as clear as day in the governing treaty itself or perhaps even in clarifying federal legislation (and not in clarifying presidential orders or other presidential memoranda, because here the Supreme Court gave no effect to such a recent presidential clarification). The dissent, on the other hand, seems to say that such compromises of American court sovereignty are for American treaty makers (the president must approve the treaty, and then the necessary number of senators must approve it) to make or not to make, and that — at least in this instance — the treaty and Congress need say nothing more for federal and state courts to be required to give effect to the rulings of such international tribunals, to the extent that the applicable treaty gives such binding effect to the international tribunal.
Here are some of the key points of Medellin:
1. Apparently still alive and well is the Vienna Convention’s requirement that those who are not citizens in the country where arrested be advised of their right to consular consultation. The Supreme Court seems to leave open courts’ authority to enforce this provision of the Vienna Convention, but was not about to tell Texas to deviate from its prohibition against subsequent habeas corpus proceedings.
2. If Medellin were challenging a federal versus a state prosecution at the habeas corpus level, the Supreme Court may have given effect to the ICJ’s Avena decision, at least here where president Bush signed a memorandum giving effect to ICJ decisions interpreting the Vienna Convention, and where federal prosecutions are pursued to the president’s executive branch.
3. The majority seems very concerned about reaching an opposite result than it did, lest unforeseen and harmful results follow from having American courts bound by international tribunals that are not governed by safeguards of the United States Constitution.
4. Perhaps influencing some of the justices in the majority in Medellin is an aversion to giving more review rather than less review to habeas corpus challenges involving capital cases.
5. This case is important for interpreting all treaties, including the extent to which they will be treated by courts as self-executing or not. Jon Katz