Updated at 10:45 a.m. on June 8.
In a split per curiam decision (PDF) released today, the U.S. Supreme Court denied a request to stay the execution of Mexican national Humberto Leal Garcia, which took place late Thursday afternoon in Texas.
In a 5-4 decision, the court rejected the argument that more time was needed to allow Congress to take action on an international treaty obligation calling for a review of Leal's case and others like it.
"Our task is to rule on what the law is, not what it might eventually be,” the justices wrote. “We decline to follow the United States’ suggestion of granting a stay to allow Leal to bring a claim based on hypothetical legislation when it cannot even bring itself to say that his attempt to overturn his conviction has any prospect of success.”
Leal was arrested in 1994 on suspicion of murder, but he was never told that he had a right under international law to contact the Mexican consulate for legal assistance.
As reported here previously, Leal was one of a group of Mexican nationals arrested and convicted in Texas who filed suit at the International Court of Justice to vindicate their consular rights under the Vienna Convention on Consular Rights. The international court found that the U.S. had violated their rights and had called on the U.S. government to review the cases.
On July 1, Solicitor General Donald Verrilli Jr. filed a brief with the Supreme Court asking for a delay in the execution to allow Congress to take action on the treaty obligation.
Justice Stephen Breyer, writing the dissenting opinion with Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, pointed to Verrilli’s assertion that to move forward with the execution would place the U.S. “in irreparable breach” of its international obligations.
The justices in the majority include Chief Justice John Roberts Jr. and Justices Antonin Scalia, Samuel Alito, Clarence Thomas, and Anthony Kennedy.
The dissenting justices disagreed that the court could not make a decision based on impending legislative action.
“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,” they wrote.
In a statement issued earlier today, Leal’s lawyer, Northwestern University School of Law professor Sandra Babcock, said that, “Today the United States stumbled in its commitment to the rule of law.”
“Mr. Leal, tragically, will suffer the consequences. He will be executed tonight, despite the fact that his right to consular assistance was violated,” she said. “It is now imperative that Congress promptly act to ensure passage of legislation that will bring the U.S. into compliance with its international legal commitments and provide judicial review to the forty Mexican nationals who remain on death row in violation of their consular rights.”
Sen. Patrick Leahy (D-Vt.) said in a statement this afternoon that he was disappointed in the court’s decision. Leahy had introduced the legislation that would move the U.S. to act on its treaty obligations under the Vienna Convention.
“I am disappointed that the Supreme Court has denied the administration’s request to grant a brief stay in the Leal case in order to allow Congress time to act on the Consular Notification Compliance Act,” Leahy said. “Americans detained overseas rely on their access to U.S. consulates every day. If we expect other countries to abide by the treaties they join, the United States must also honor its obligations.”
Leal’s request for a stay garnered support from international law attorneys as well as former U.S. diplomats. In a statement today, a group of five former diplomats and attorneys – including former U.S. ambassador to Mexico James Jones, former Undersecretary of State for Political Affairs Thomas Pickering and Arnold & Porter partner and former State Department legal advisor John Bellinger III – called on Congress to ensure the U.S. observes the Vienna Convention.
“The ability of the United States to secure future international agreements vital to the protection of our citizens, our national security, and our commercial interests depends largely on whether this nation is perceived as honoring its international commitments,” they said. “We now look to Congress and the Obama Administration to act without delay to discharge this treaty commitment on behalf of the entire United States.”
The Associated Press reported Thursday evening that Leal was executed by lethal injection in Huntsville, Texas.