Why is Medellin v. Dretke before the Supreme Court?

Most Mexicans on death row in the U.S. were denied their rights under the VCCR, and the government of Mexico brought a suit before the ICJ as provided in the Optional Protocol. That lawsuit, brought on behalf of Medellin and 53 other Mexican nationals who had been sentenced to death in the United States, is referred to as the Avena case.

In March of 2004, the ICJ determined in Avena that the U.S. government had failed to comply with the requirements of the VCCR, and it directed that U.S. courts give the death row inmates “effective judicial review and reconsideration” of their convictions and sentences in light of this failure, without applying procedural default rules (such as, that this claim should have been raised at the original trial) to prevent consideration of the defendants’ claims.

Texas courts had previously denied Medellin’s Vienna Convention claim, and two federal courts refused to overturn the rulings of the Texas courts. The United States Court of Appeals for the Fifth Circuit acknowledged the ICJ’s judgment in Avena, but held that it was precluded from giving effect to the judgment by prior U.S. Supreme Court precedent. The court ruled that, because Medellin had not raised the Vienna Convention claim at the trial stage (during the time that he was represented by unlicensed counsel), his appeal was procedurally defaulted. The court further stated that the VCCR does not serve to confer rights upon individuals.

The U.S. Supreme Court agreed to review the decision of the Court of Appeals, and oral arguments are scheduled for March 28, 2005.

What response has come from the White House?

The Solicitor General filed an Amicus Curiae (“friend of the court”) Brief – a brief filed by someone who is not a party to the litigation, but who believes the court’s decision may affect its interest. In it, the Solicitor General informed the Court that by Executive Order of February 28, 2005, President Bush directed state courts to give effect to the ICJ’s ruling in Avena and to review the cases of Medellin and the 50 other Mexican foreign nationals on death row in the United States.

In his memorandum to the attorney general, President Bush stated that he had determined “that the United States will discharge its international obligations under the decision of the International Court of Justice” and he ordered the state courts to grant review.

However, on March 7, 2005, in a letter from Secretary of State Condoleezza Rice to U.N. Secretary General Kofi Annan, the administration notified the U.N. that the United States is withdrawing from the Optional Protocol to the VCCR. The Executive Order to review the cases still stands, but the withdrawal from the Optional Protocol affects future disputes, and reverses the U.S.’s former decision to grant the ICJ decision-making authority over these disputes.

How will the Executive Order affect the U.S. Supreme Court’s consideration of the Medellin case?

Oral arguments are scheduled for March 28, 2005. The question the Supreme Court is poised to answer is whether United States courts must give effect to the decision of the ICJ. Because President Bush has ordered the U.S. courts to do just that, it is uncertain how the Supreme Court will proceed. Assuming the Texas and other state courts comply with the Executive Order, the case may be rendered “moot,” meaning that the issue before the Court has already been resolved. Federal courts do not issue rulings that have merely theoretical outcomes.

Attorneys for Jose Medellin have asked the Supreme Court to put the case on hold until after Medellin has had his hearing in state court. Attorneys for Texas have argued that President Bush does not have the constitutional authority to order Texas courts to comply with the Avena judgment.

How many people will be affected by the outcome of this case?

The cases of 52 of Mexican nationals under sentence of death in the U.S. were addressed by the ICJ, which found Vienna Convention violations in 51 of those cases.

Of those 51 cases, seven defendants are no longer under a sentence of death (4 commutations, 1 reduced to life sentence, 2 juvenile cases set aside by Roper v. Simmons).

Apart from the 44 Avena cases still with active death sentences, there are 7 other Mexican nationals on death row.

There are a total of 119 foreign nationals reported on death row in the U.S. (source: Mark Warren, Human Rights Research).