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Latinos, Consular Notification, and the Texas Death Penalty

Latinos, Consular Notification, and the Texas Death Penalty. St. Mary’s University. School of Law Professor Reynaldo Anaya Valencia November 18, 2005. Latinos & the U.S. Criminal Justice System. Hernandez v. Texas (1954) 14 th Amendment Applies to Latinos.

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Latinos, Consular Notification, and the Texas Death Penalty

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  1. Latinos, Consular Notification, and the Texas Death Penalty St. Mary’s University School of Law Professor Reynaldo Anaya Valencia November 18, 2005

  2. Latinos & the U.S.Criminal Justice System Hernandez v. Texas (1954) 14th Amendment Applies to Latinos

  3. Latinos & the U.S.Criminal Justice System Miranda v. Arizona (1966) 5th Amendment Right Against Self-Incrimination

  4. Latinos & the U.S.Criminal Justice System Escobedo v. Illinois (1964) 6th Amendment Right to Counsel

  5. Latinos & the U.S.Criminal Justice System U.S. Brignoni-Ponce (1975) 4th Amendment “Mexican appearance” a relevant factor for a border stop

  6. Latinos & the U.S.Criminal Justice System U.S. v. Martinez-Fuerte (1976) 4th Amendment “secondary inspection area” border stop held constitutional

  7. 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”

  8. Latinos & the U.S.Criminal Justice System United States v. Flores-Montano (2004) 4th Amendment Dismantling of vehicle’s gas tank at border constitutional

  9. Latinos & the U.S.Criminal Justice System Medillin v. Dretke (2005) Article II Treaty Power Consular Notification

  10. 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 Amendment Medillin v. Dretke (2005) – Article II

  11. Article 36 of the Vienna Convention “COMMUNICATION AND CONTACT WITH NATIONALS OF THE SENDING STATE” • Consular officials may contact their nationals, and nationals may contact their consular officials. • Upon foreign national’s request, consular officials must be notified of arrest. Requires notice to foreign national of this right. • Consular officials have rights to visit foreign nationals in custody and prison, and arrange for their legal representation.

  12. 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

  13. 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 Black Spokesman for Texas Governor Rick Perry

  14. Attorney General Greg Abbott “We do not believe that World Court has jurisdiction in these matters.” Paco Felici Spokesman for Texas Attorney General Greg Abbott

  15. 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

  16. 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

  17. 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.”

  18. 1972-presentContemporary Administration of the Texas Death Penalty Texas’ Most Recent 5-year History 2000-2005 Texas Total Texas Percent YearExecutionsExecutionsof total 2000 40 85 47% 2001 17 66 26% 2002 33 71 46% 2003 24 71 37% 2004 23 59 39%

  19. 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)

  20. 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”)

  21. 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

  22. 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

  23. 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

  24. Political Actions “We respectfully believe the executive determination exceeds the constitutional bounds for federal authority.” Statement of Texas Attorney General Greg Abbott

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

  26. Political Actions Legislative Efforts • Federal Regulations 28 C.F.R. 50.5, “Notification of Consular Officers upon the arrest of foreign nationals.” • California

  27. 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

  28. 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. Schwebel Judge, World Court 1980-200, President 1997-2000 The Wall Street Journal, April 14, 2004

  29. The End

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