Texas has executed a Mexican national for the kidnapping and rape of a 16-year-old San Antonio girl. Humberto Leal Garcia, 38, was put to death less than two hours after the U.S. Supreme Court, by a 5-to-4 vote, rejected pleas from the Obama administration for a delay to avoid what it called serious international repercussions.
This was Texas's seventh execution of the year and the second execution since 2008 of a Mexican national who was denied access to the Mexican consul before trial.
Before Leal Garcia's trial, Texas authorities failed to inform him of his right to speak with officers from the Mexican consulate and failed to inform the consulate that a Mexican national had been arrested. Both of those failures violated a 1963 treaty signed by the U.S. Indeed, the consular access provision was added to the treaty at the insistence of the United States.
The U.S. relies on the treaty to secure legal help and often to win release of Americans imprisoned abroad, some in countries such as Iran, Libya and Syria. Last year alone the U.S. invoked the treaty for 3,500 Americans imprisoned in other countries.
In Leal Garcia's case, Mexico said that if it had known of his arrest, it could have provided sufficient legal help and information about his abusive childhood that the death penalty might well have been averted.
In 2008, in a similar case brought by the Bush administration, the Supreme Court ruled that the consular access treaty does not bind state courts unless Congress, in addition to its ratification of the treaty, enacts an enforcement law. The Obama administration last month endorsed such a law and last week asked the Supreme Court to stay the Leal Garcia execution to allow it time to win passage of the proposed statute.
But the Supreme Court refused to grant the stay of execution. In an unsigned opinion, the five-member majority said, "We are doubtful that it is ever appropriate to stay a lower court judgment in light of unenacted legislation. Our task is to rule on what the law is, not what it might eventually be."
Dissenting were Justices Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. Writing for the three, Breyer said, "It is difficult to see how the State's interest in the immediate execution of an individual convicted of capital murder 16 years ago can outweigh the considerations" put forth by the executive branch for a delay lasting no longer than six months.
The proposed bill would give foreign nationals held in the U.S. the right to appeal a conviction when either the individual was not notified of the right to consult with officials from his home country's embassy, or when the embassy was not notified of the arrest of its citizen. But to win such an appeal, the bill requires a showing that failure to abide by the treaty actually harmed the individual. Merely failing to provide notification alone would be insufficient.
In recent years, states have, at the insistence of the Clinton, Bush and Obama State Departments, become more compliant with the consular treaty. Compliance ramped up in particular after the International Court of Justice ruled in 2004 that the U.S. was in violation of international law because states failed to comply with the treaty, with no judicial review process for treaty violations.
Secretary of State Hillary Clinton, Attorney General Eric Holder and an assortment of ambassadors all called upon Texas Gov. Rick Perry to grant a temporary stay of execution to allow time for Congress to vote on the bill.
In a letter to Perry, Clinton and Holder said an execution could compromise law enforcement cooperation between Mexico and the U.S., "strain" relations with Mexico, and call into question U.S. commitments to honor its treaties.