Naked City

Consular Access Bill Still Alive

On March 22, the Senate Criminal Justice Committee passed SB 603, Houston Democrat Rodney Ellis' bill requiring law enforcement authorities to provide detained foreign nationals access to their consular authorities – passing out of committee just five days before the U.S. Supreme Court was slated to take up the issue. The so-called consular notification bill would ensure that Texas' criminal justice system complies with international law set out in the 1963 Vienna Convention. "This legislation will ensure foreign nationals get the same treatment here that we demand American citizens receive abroad" and is "a very positive step toward improving Texas' criminal justice system," Ellis said.

There are 15 foreign nationals on Texas' death row, most of whom have argued they were denied access to consular authorities after being arrested. Indeed, on Monday the U.S. Supreme Court heard arguments related to consular notification raised by Mexican national and Texas death row inmate Jose Ernesto Medellin. In Medellin's case, the Mexican government wasn't contacted until after he had been tried and sentenced to death, when Medellin wrote to Mexican officials from his cell.

That was one of 52 cases named in a lawsuit brought against the U.S. by Mexico and decided last year by the United Nations' International Court of Justice (aka the World Court in The Hague). In that case – referred to as Avena and Other Mexican Nationals (Mexico v. United States of America) – Mexico argued that the U.S. was not complying with the supposedly reciprocal relationship among nations regarding access to home-country government representatives while abroad. In the case of Avena, Medellin, and 50 others sentenced to death in the U.S., Mexico argued that the U.S. had not ensured the defendants access to the consulate once they were arrested for committing a crime on foreign soil, thus detaining them illegally under the Convention.

In March 2004, the ICJ agreed with Mexico and ordered the U.S. to provide for a "review and reconsideration" of many of the cases (including Medellin's), meaning new court proceedings free from the otherwise-binding time limitations imposed by federal law on defendants seeking to address "new" legal claims. But when considering Medellin's case, the 5th U.S. Circuit Court of Appeals opined that it could not consider the ICJ over other binding federal law, forcing Medellin to appeal to the Supremes. (Interestingly, it was the U.S. that proposed the so-called "Optional Protocol" in the 1963 Vienna Convention, creating the binding dispute-settlement provision that allowed Mexico to bring its Avena case before the ICJ. And the U.S. was the first nation to invoke the protocol, successfully taking Iran to court for the 1979 holding of 52 hostages in Tehran.)

Last year, Sens. Ellis and Leticia Van de Putte, D-San Antonio, penned a letter to state Attorney General Greg Abbott asking for the state's official opinion regarding the Avena order. In his response, Abbott opined that Texas does not "believe the Supreme Court [American courts] are bound by the ICJ's decision," according to an Ellis press release. Nonetheless, Ellis' bid to codify consular rights made it out of committee. "I am very pleased that the committee took this positive step," Ellis said. "When we deny the most basic legal protections to foreign nationals, we not only tarnish the integrity of justice here in Texas, but jeopardize the legal protections of Texans abroad."

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