The State of Texas carried out its execution of Jose Ernesto Medellin late Tuesday night. It did so following the Supreme Court’s denial of a stay, 5-4. The split is unsurprising, with the majority focused (accurately I suspect) on the fact that a legislative fix was unlikely, and reading DOJ’s silence on the stay request as consistent with a larger pattern of Executive hostility to the ICJ ruling itself. In terms of dissents, Justice Stevens moved from concurring in the original Medellin decision to dissenting on this one, having wanted to require the reluctant Solicitor General’s Office to provide views (the other dissenters echoed the call for paper from the S.G.). Separately, I was disappointed to see the majority did little to qualify the confusion its Medellin decision caused over the domestic legal status of U.S. treaties. The Majority simply noted that the treaty does “not itself have the force and effect of domestic law sufficient to set aside the judgement or ensuing sentence.” That still leaves me wondering whether the court’s denial of domestic law status to non-self executing treaties means that they are not domestic law in any sense or only that they’re not judicially enforceable domestic law.
So, now what? The United States has breached its obligation to comply with the ICJ’s Avena decision (not to mention the more recent provisional measures order). But what exactly will that mean here? Can Mexico now legally engage in reprisals or retorsion against the United States or (to take up Peter Spiro’s idea of targeted retaliation) against Texas specifically? Even if it can, will it do so? To date, Mexico has appeared content to employ the ICJ to amplify its rhetorical opposition to its citizens’ fate. As yet, it’s taken few concrete actions to actually force a change in the U.S. position (i.e., doubling the time it takes US trucks to cross the border; suspending mutual legal assistance or extradition with the United States, etc.).
Moreover, unlike the earlier death penalty cases (e.g., Angel Breard) the Avena decision is not mooted by today’s execution. It covers dozens more Mexicans on death row in the United States. I suspect that means even if Mexico maintains its current rhetorical strategy, the issue is not going away. I wonder though whether each pending execution will generate a new round of maneuvering by all sides, or if, as Julian suggests, Texas will lead the way into finding some compromise to make sure we don’t have to do this 50 more times?