Latinos, Consular Notification, and the Texas Death Penalty St. Mary’s University School of Law...
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Transcript of Latinos, Consular Notification, and the Texas Death Penalty St. Mary’s University School of Law...
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