Medellin, Simmons and International Death Penalty Litigation Strategy

The Roper v. Simmons and Medellin discussions highlight one of the points of tension between the US and its closest international allies – the continuing use of the death penalty in this country. Julian has elucidated in his thorough and helpful discussions here and here the important constitutional law and federalism issues raised by Medellin, as well as the question of creating individual remedies in federal court for treaty violations (see also Mary Lederman’s discussion at SCOTUSBlog here). These are important questions that will have, in the near term, implications for the Guantanamo and detainee abuse cases. But let’s face it, Medellin is, from the perspective of Mexico and the rest of the world, about the death penalty. No one has brought a case before the ICJ on behalf of, for example, car thieves sentenced to 5-10 years who were denied the right to notify their consulates.

For years, abolitionists here and abroad have been looking for ways to get at the problem of the death penalty in the United States; the AEDPA of 1996 threw up additional procedural obstacles to habeas challenges in death cases. In 1998, the ICJ was poised to decide the Breard case (a Paraguayan national sentenced to death in Virginia), and issued a “provisional measures” order requesting the US to take measures to prevent the execution before the ICJ could consider the case. The “measures” taken consisted of a letter from then Secretary of State Albright to the governor of Virginia saying, in essence, “We’d appreciate it if you did not execute Mr. Breard, as the VCCR is an important treaty that protects US citizens overseas.” The Governor rejected the request and Breard was executed. (As Lederman discusses, Breard had also brought a habeas claim in US federal court, which was rejected by SCOTUS as procedurally defaulted under the AEDPA.)

In 1999, Mexico joined the fight by brining a request for an Advisory Opinion to the Inter-American Court of Human Rights to determine whether Mexican nationals on death row in the United States were entitled to some remedy for the failure of the US to provide consular notification under the VCCR. The IACHR issued an opinion (non-binding) outlining the legal rationales that became the basis for the later ICJ opinion in Avena: 1) the VCCR creates an individual right to an arrested national to have his consular representation notified; 2) the US failed to provide the notification; 3) the US must provide some remedy for the failure to notify, e.g., waive the procedural default rule, especially where death is the punishment.

Also in 1999, two German brothers, the LaGrands, were sentenced to death in Arizona. After one brother was executed, Germany brought a case before the ICJ under the VCCR. Again, the ICJ issued a provisional measure (which Germany unsuccessfully tried to have enforced by SCOTUS), and again the remaining defendant was executed before the ICJ could issue its final judgment. But Germany pursued the case anyway, with the resulting opinion of the ICJ reaching in essence the conclusions of law set forth by the IACHR advisory opinion. Avena, decided last year in favor of Mexico, was the last in the line of the three ICJ cases and provided the basis for the current Medellin challenge. At the same time as these cases have been pursued under the VCCR, international human rights groups have been systematically filing amicus briefs in key cases, like Simmons, and have been shining the harsh light of publicity on the US death penalty.

We have all seen movies where an American or Briton engages in some crime while vacationing abroad, only to find themselves subject to a criminal justice system that is draconian (anything from Return to Paradise to Bridget Jones Diary II comes to mind) by our own standards. We sympathize with the plight of the American sentenced to death for drug possession, and cheer for the friends who try to use all available means to spring them from jail, including intercessions by the US government. It can hardly be a surprise that other governments – who uniformly prohibit the death penalty – would do the same in the face of the practices of some US states that they view as archaic and draconian.

Julian may be right that the defendant in Medellin may ultimately not be spared the death penalty in Texas at the end of this process. But taken in combination with the ruling yesterday in Simmons, the strategy of pursuing American death penalty practices through a regional human rights body, the ICJ and through networks of activists poised to file amicus briefs and influence the “virtual” court of public international opinion appears to be swinging the pendulum ever so slightly in the direction of the abolitionists.

In this morning’s press, our international partners appear heartened by Kennedy’s acknowledgment in Roper v. Simmons that we pay attention to what is going on in the rest of the world, and some recognition that, yes, we live in that world. For a sample of some of the international reaction to the Simmons case, see discussions here (Irish Times) and here (Jerusalem Post). As with his majority opinion in Lawrence v. Texas, Kennedy places, in my mind, just the right amount of emphasis on the practice of other states (particularly the UK) and the trends in international human rights instruments. (What is really interesting about Simmons is the extent to which the Missouri Supreme Court opinion affirmed by the Court discussed international opinions on the death penalty.)

I happen to agree with the former diplomats who filed an amicus brief in Simmons, and who cited Harry Blackmun’s views on this issue, that, “if the substance of the Eighth Amendment is to turn on the ‘evolving standards of decency’ of the civilized world, there can be no justification for limiting judicial inquiry to the opinions of the United States.”

UPDATE: The Economist has this interesting article on the case asking “is the United States being swayed by international opinion?”