Texas Agrees to Sort of Comply with ICJ’s Avena Judgment…But It Will Go Ahead and Execute Medellin Anyway

Almost buried amid the last-minute flurry of litigation over Medellin’s pending execution tonight at 7 p.m. EDT, Texas has made a potentially important but ambiguous concession to the ICJ.  It has agreed to support federal habeas petitions in the future for Mexican citizens arguing that a failure of consular notification had caused prejudice to their criminal conviction and death sentence.  Here is the somewhat curious but very interesting statement by Texas, made at the very end of a brief which aggressively resisted any attempt by the U.S. Supreme Court to block Medellin’s execution.

…the State of Texas acknowledges the international sensitivities presented by the Avena ruling, as well as the observation of Justice Stevens in his concurring opinion that “[t]he cost to Texas of complying with Avena would be minimal.”  …

For this reason, the State of Texas will take certain measures in future proceedings. Medellin has already received review and reconsideration of his claims under the Vienna Convention.  However, some defendants currently incarcerated in Texas and subject to Avena may not have received “review and reconsideration” of their claims of prejudice under the Vienna Convention on the merits.  Accordingly, and as an act of comity, if any such individual should seek such review in a future federal habeas proceeding, the State of Texas will not only refrain from objecting, but will join the defense in asking the reviewing court to address the claim of prejudice on the merits, as courts have done for Medellin. [emphasis added]

What is curious is that Texas is arguing that Mexicans will get review and reconsideration out of “comity.”  But it is not clear from the brief whether Texas is also undertaking to give the type of “review and reconsideration” required by the ICJ.  I have to assume that there is some difference between what Texas thinks “review and reconsideration” means via the Vienna Convention, and what the ICJ thinks, since it is executing Medellin with the claim that he got all the review and reconsideration required.  But plainly, the ICJ does not believe Medellin’s habeas hearing satisfies the “review and reconsideration” requirement. And since the ICJ is the institution that basically invented this requirement, why shouldn’t their views on what “review and reconsideration” means prevails?

So what is Texas getting itself into? Will it waive the “procedural default” argument that is often used to dismiss appeals made under the Vienna Convention? Will it commit to follow the ICJ’s interpretation of the “review and reconsideration” standard?  But then why not give Medellin this same review?  I don’t quite understand this?

This is the first time that I’ve seen any evidence of Texas cracking in its resolve to ignore the ICJ.  I applaud this sign of independent state foreign policy (for my general theory of why this is a good thing, see my article here), but I am a bit surprised.  Perhaps it is the influence of new Texas Solicitor General James Ho?

To sum up, Texas is agreeing to comply with the ICJ, but not out of legal obligation, and not necessarily by following the standards laid out by the ICJ, and not in a way that would prevent it from carrying out the execution of Medellin tonight.  I suppose ICJ enthusiasts might be ready to declare a victory here, but it is a partial one at best unless Texas’ governor surprises everyone by commuting Medellin’s sentence today.