Although this is not an evident case of an innocent man wrongly convicted -- no one seriously claims that Texas prosecutors got the wrong man -- the matter of consular notification has been a vibrant topic of international discussion and angst for years. Leal, convicted of murder in Texas 16 years ago, was denied the right to access to the Mexican consulate at the time of his arrest. In 2004, the International Court of Justice at the Hague declared that such rights were valid under the Vienna Convention. In 2008, the Supreme Court agreed -- but said that Congressional action was necessary to allow Leal to fully vindicate his right. Congress has not yet acted on the Court's invitation -- to the eternal shame of lawmakers, but that's a whole other story -- and on Thursday the Court said that Leal's time had run out.
It didn't matter that Leal's rights were violated, the Supreme Court's conservatives declared Thursday, because there was no reason to think that the outcome of his case would change were he now to have such access to consular officials. It was a "harmless" violation of law, the justices ruled, and Texas' interest in executing someone sentenced to death was greater than the interests of the federal government in ensuring a measure of comity and mutual respect in its international relations. We don't stay executions on behalf of legislation that may or may not be passed, the per curiam order read.
In condemning Leal, the Court thus blew off the Solicitor General of the United States, who had warned on behalf of the White House and Justice Department that executing Leal would "place the United States in irreparable breach" of international law. The Court blew off the United Nations High Commissioner, who had asked Texas to commute Leal's sentence to life in light of the violation of his rights. The Court blew off scores of former law enforcement officials and diplomats, who recognized the destructive message that Leal's execution (with relevant legislation pending) would send to the rest of the civilized world.
And, most important, the Court blew off Congress (specifically, Senate Judiciary Committee Chairman Patrick Leahy fo Vermont) as it was working through the legislation that would expressly adopt consular rights. Justice Stephen Breyer, dissenting from the majority opinion on behalf of himself and the Court's three other progressive justices, well described the balance of factors. He wrote:
Thus, on the one hand, international legal obligations, related foreign policy considerations, the prospect of legislation, and the consequent injustice involved should that legislation, coming too late for Leal, help others in identical circumstances all favor granting a stay. And issuing a brief stay until the end of September, when the Court could consider this matter in the ordinary course, would put Congress on clear notice that it must act quickly. On the other hand, the State has an interest in proceeding with an immediate execution. But 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 that support additional delay, perhaps only until the end of the summer.
There has been a great deal of analysis and commentary on the Leal case -- some of it better than the rest -- but at heart, Thursday's dramatic events are simple to explain. The Court's majority went out of its way to allow Texas to proceed with an execution, even though the state would have been only minimally harmed in waiting a few more months (or even a few more years) to proceed. The Court did so despite broad concerns, expressed by officials in both of the other two branches of government, that the Leal's execution now would harm the interests of the United States abroad. And, by doing so, the Court compounded rather than solved an important legal problem raised by the Leal case.
Just because Congress has consistently failed to do the right thing here doesn't mean that the Court had to follow its lead. The result is a big, black mark on the face American justice now shows to the rest of the world.
Image Credit: Tomas Bravo/Reuters