Will the Supreme Court or Rick Perry Stay the Leal Execution?

We now know that there is broad agreement that if Texas Governor Perry goes forward with today’s scheduled execution of Humberto Leal, he will be doing so in violation of law.  Who has said so?  Well, the U.S. government, the U.S. Supreme Court, at least three concurring judges on the Texas Court of Criminal Appeals, a significant number of members of the House and Senate, along with the United Nations, Mexico (and many other states) and, of course, the International Court of Justice.  The problem for Leal and others whose death penalty convictions were obtained following a clear and acknowledged violation of U.S. obligations under the Consular Convention is not a lack of clarity about consular law.  The problem is the domestic remedy.  There are only two institutions remaining that can provide one to Mr. Leal today:  The U.S. Supreme Court, if it accepts the very strong argument of Leal’s attorneys and the Solicitor General that the Court should invoke its power under the All Writs Act to stay the execution until the proposed jurisdictional and remedial statute (the Consular Notification Compliance Act) is adopted by Congress, or Governor Perry.  Given Perry’s failure to stay the execution of Ernesto Medellin in 2008 — nothwithstanding the official position of the Bush administration to comply with the 2004 Avena decision of the ICJ  — there is little about the Leal case to suggest that Perry will change his international law-breaking ways.

Perry’s most likely political calculation on the question is summed up nicely/depressingly by this post by Thomas Lane over at Talking Points Memo, in which he says of efforts by the UN High Commissioner of Human Rights to sway Governor Perry:

International Law professors and Current TV producers probably aren’t going to be voting in the GOP primaries. Looking online at the types of people who may be, the blog “One Old Vet” puts the prevailing sentiment most succinctly: “This is America and Mexican law, as well as other international law, can go straight to hell!” Similarly, a Fox News write-up about the U.N. intervention grins, “Perry apparently doesn’t plan to take his cues from the U.N.”

So, things look fairly bleak for Mr. Leal. Indeed, one might say that if Perry does delay the execution, thus bowing to international pressure, it could be the clearest sign yet that he’s not running for president.

But some things are different today than they were for Medellin in 2008.  First, there is the quite stunning concurrence by three judges of the Texas State Court of Criminal Appeals, which explicitly  adopts the concurring opinion of Justice Sevens in the Medellin v. Texas decision.  Stevens concurred with the majority’s decision in Medellin that the ICJ judgment did not create binding domestic law, i.e., it did not create a remedy.  Stevens noted, however, that it rested with Texas (a view Julian Ku enthusiastically endorsed here) to carry out the U.S. international legal obligation to provide the additional hearing ordered by the ICJ in Avena.  After concluding that that Texas law constrained them from entertaining his request for the stay, the concurring justices wrote:

This does not mean [Leal] lacks any state remedy at all. The Executive Department has the power, unfettered as ours is, to grant the applicant a reprieve. And it is precisely when the Judicial Department proves institutionally unequal to the task that the exercise of executive clemency is most appropriate. With the recommendation of the Board of Pardons and Paroles, the Governor may effectively stay the applicant’s execution until such time as legislation passes that finally implements our indisputable treaty obligations and provides a remedy for the applicant’s right under international law. By himself, the Governor can grant one thirty-day reprieve, affording the trial court an opportunity to delay re-imposition of sentence until such time as implementing legislation may pass.  In this way, Texas can still honor its duty under the Supremacy Clause to honor the treaty obligations of the United States, just as Justice Stevens has implored us to do.

The Board of Pardons and Paroles has not recommended a stay in this case.  But with pending federal legislation, there is a stronger argument than in 2008 for the GOP Texas congressional delegation to support Perry in a move to grant a reprieve.  It does not appear politically likely, but at least there is a relevant and compelling change in domestic legal circumstances here.

If neither the Supreme Court nor Perry grants a stay, the U.S. will once again be responsible for executing a foreign national in violation of international law.  And we can expect even tougher times ahead for American consular and human rights officials trying to convince other states around the world to obey well-established and broadly recognized international law.