05 May Medellin Execution Date Set
Jose Ernesto Medellin is scheduled for execution by the state of Texas on August 5, 2008. If one assumes that Executive Branch officials have an interest in trying to find new ways to comply with the Avena decision (an open question I know), that does not leave them much time. From my perspective, the Executive Branch has two, equally unattractive, options.
First, they can try for federal legislation, which the Medellin decision suggests would be the appropriate vehicle for converting the non-self-executing treaty obligations of the UN Charter (or the VCCR Optional Protocol) into judicially enforceable domestic law. Of course, getting Congress to pass such a bill in an election year seems pretty unlikely, especially when one considers the crimes for which Mr. Medellin was convicted (and that’s without even trying to figure out what the bill would say). Second, before the Supreme Court’s decision, the Texas Criminal Court of Appeals had suggested that they’d enforce an Executive Agreement with Mexico “settling” Mexico’s claims against the United States even with respect to criminal proceedings such as those involving Mr. Medellin. So perhaps Mexico and the United States could “agree” that Mexico has outstanding claims against the United States for its non-compliance with the Avena decision that will be resolved by providing the named individuals judicial review and reconsideration in U.S. Courts (again, there may be a thorny question of which U.S. courts — federal or state?) But the Supreme Court’s Medellin opinion may have made that option less viable–or at least given the Texas Court cause to reconsider its earlier views–since it took a much narrower view of Executive Power than earlier precedents like Crosby and Garamendi might otherwise have suggested.
Since I know we have a few readers out there who work for the Executive Branch, I’d encourage others to chime in with their views on the options I propose and/or alternative solutions that could lead to Avena compliance in some manner that’s consistent with the Court’s Medellin decision.
Texas could pass a law. Yes, that’s probably even less likely than the U.S. Congress doing it, but they certainly could. Or, perhaps the Governor could order compliance? I know nothing about Texas law, or indeed the separation of powers in any state, so I can’t tell if that is a viable option. Presumably, the Governor could at least halt the execution, if not order “review and reconsideration.” I know what you are wondering about what the federal executive branch might do. But I doubt the administration cares any more than Texas does… I think the only reason they chose to involve themselves in the first place was to test out the executive powers theory. I doubt anyone with any real power is losing sleep over noncompliance with the Avena decision. This much is clear: the Court unanimously found that the U.S. has an international law obligation. Fulfilling that obligation may not be in either the President’s or the federal judiciary’s hands, but it is clearly in Texas’ hands. They can choose to do what we all expect from Texas, which is thumb their noses at all this international law hokum. Or, they can buck up and “review and reconsider”… Read more »