Latinos, Consular Notification, and the Texas Death Penalty

St. Mary’s University

School of LawProfessor Reynaldo Anaya Valencia

November 18, 2005

Latinos & the U.S.Criminal Justice System

Hernandez v. Texas (1954)

14th Amendment Applies to Latinos

Latinos & the U.S.Criminal Justice System

Miranda v. Arizona (1966)

5th Amendment

Right Against Self-Incrimination

Latinos & the U.S.Criminal Justice System

Escobedo v. Illinois (1964)

6th Amendment

Right to Counsel

Latinos & the U.S.Criminal Justice System

U.S. Brignoni-Ponce (1975)

4th Amendment

“Mexican appearance” a relevant factor for a border stop

Latinos & the U.S.Criminal Justice System

U.S. v. Martinez-Fuerte (1976)

4th Amendment

“secondary inspection area”

border stop held constitutional

Latinos & the U.S.Criminal Justice System

Hernandez v. New York (1991)

14th Amendment

Peremptory challenges striking Hispanics

on basis of Spanish-language ability

held to be “race-neutral”

Latinos & the U.S.Criminal Justice System

United States v. Flores-Montano (2004)

4th Amendment

Dismantling of vehicle’s gas

tank at border constitutional

Latinos & the U.S.Criminal Justice System

Medillin v. Dretke (2005)

Article II Treaty Power

Consular Notification

Latinos & the U.S.Criminal Justice System

Hernandez v. Texas (1954) – 14th Amendment

Escobedo v. Illinois (1964) – 6th Amendment

Miranda v. Arizona (1966) – 5th Amendment

U.S. Brignoni-Ponce (1975) – 4th Amendment

U.S. v. Martinez-Fuerte (1976) – 4th Amendment

Hernandez v. N.Y. (1991) – 14th Amendment

U.S. v. Flores-Montano (2004) – 4th AmendmentMedillin v. Dretke (2005) – Article II

Article 36 of the Vienna Convention

I. Consular officials may contact their nationals, and nationals may contact their consular officials.

II. Upon foreign national’s request, consular officials must be notified of arrest. Requires notice to foreign national of this right.

III. Consular officials have rights to visit foreign nationals in custody and prison, and arrange for their legal representation.

“COMMUNICATION AND CONTACT WITH NATIONALS OF THE SENDING STATE”

Avena Decision Rendered March 31, 2004

World Court held that the United States had violated the rights of 51 Mexican Nationals by denying their consular rights under the Vienna Convention

Remedy: U.S. must provide “meaningful review and reconsideration”

Of these 51 cases, 16 are from Texas

Immediate response from Texas officials on April 1, 2004

Governor Rick Perry

“Obviously the Governor respects the world court’s right to have an opinion, but the fact remains they have no standing and no jurisdiction in the state of Texas.”

Robert BlackSpokesman for Texas Governor

Rick Perry

Attorney General Greg Abbott

“We do not believe that World Court has jurisdiction in these matters.”

Paco FeliciSpokesman for Texas Attorney General Greg Abbott

History of Texas Death Penalty

1819-1923 - General lawlessness

1923-1972 - First state-wide statute centralizing death penalty

administration

1972-present - Contemporary death penalty administration

1923-1972First state-wide statute centralizing death penalty administration

Of the 361 total number of convicts executed by electrocution during this period:

229 (63 percent) were African American

107 (30 percent) were Anglo

24 (7 percent) were Hispanic

1 (0.2 percent) were “other”

Racism in Death

1972-presentContemporary Administration of the Texas Death Penalty

As of October 24, 2005, while Texas had executed 351 post-Furman, the entire number of executions nationwide was 987.

Thus, Texas alone accounted for a full 35 percent of all post-Furman executions in this country.

The state with the next highest number of executions was Virginia, with 94 total executions.

This result has earned Texas the nickname of “death penalty capital of the world.”

1972-presentContemporary Administration of the Texas Death Penalty

Texas’ Most Recent 5-year History 2000-2005

Texas Total Texas Percent Year Executions Executions of total 2000 40 85 47% 2001 17 66 26% 2002 33 71 46% 2003 24 71 37%

2004 23 59 39%

1972-presentContemporary Administration of the Texas Death Penalty

Constitutional Attacks

Jurek v. Texas (1976)Adams v. Texas (1980)Estelle v. Smith (1981)

Barefoot v. Estelle (1983)Satterwhite v. Texas (1988)Franklin v. Lynaugh (1988)

Powell v. Texas (1989)Penry v. Lynaugh (“Penry I”) (1989)

Graham v. Collins (1993)Herrera v. Collins (1993)Johnson v. Texas (1993)

Penry v. Johnson (“Penry II”) (2001)Miller-El v. Cockrell (2003)

Banks v. Dretke (2004)Tennard v. Dretke (2004)Miller-El v. Dretke (2005)

1972-presentContemporary Administration of the Texas Death Penalty

Total number of convicts executed from December 7, 1982 to October 20, 2005 was 351.

176 (50 percent) were Anglo

122 (35 percent) were African American

51 (15 percent) were Hispanic

2 (1 percent) were “Other”)

1972-presentContemporary Administration of the Texas Death Penalty

Texas’ Current Death Row Population

Total number of convicts sentenced to death as of October 14, 2005 was 411.

167 (40.6 percent) are African American

128 (31.1 percent) are Anglo

112 (27.3 percent) are Hispanic

4 (1.0 percent) are “Other”

9 are female

1972-presentContemporary Administration of the Texas Death Penalty

Foreign Nationals on Texas Death Row

Total number of convicts sentenced to death as of October 14, 2005 was 411, of which 26 were not U.S. citizens.

16 from Mexico 2 from Honduras 1 Argentina 1 from Bangladesh 1 from El Salvador 1 from Kampuchea 1 from Nicaragua 1 from St. Kitts

Political Actions

Correspondence between us and U.S. Department of State

Correspondence between us and Texas Attorney General

February 28, 2005 – Bush administration instructs state courts to follow Avena

Political Actions

“We respectfully believe the executive determination exceeds the constitutional bounds for federal authority.”

Statement of Texas

Attorney General Greg Abbott

Political Actions

Two days after instructing states to follow Avena, Bush administration announces withdrawal of the Optional Protocol of the Vienna Convention

Political Actions

Legislative Efforts

Federal Regulations 28 C.F.R. 50.5, “Notification of Consular Officers upon the arrest of foreign nationals.”

California

Texas Court of Criminal Appeals

Oral arguments in Ex Parte Jose Ernesto Medellin heard on September 14, 2005

Major issue is President Bush’s order

Conclusion“No country has more at stake in performance under the [Vienna] treaty than does the U.S., many thousands of whose citizens travel the world. When Americans abroad are arrested, the importance of assuring that they can contact a U.S. consul in order to communicate with their families and benefit by the assistance of legal counsel is obvious. But it is reciprocal. If police and courts in the U.S. routinely ignore their obligations under that convention, how can it be expected that U.S. nationals will enjoy its protection?”

Stephen M. SchwebelJudge, World Court 1980-200, President 1997-2000 The Wall Street Journal, April 14, 2004

The End