Excellent piece by the Austin CEDP's Bryan McCann...
Real-time perspectives on legal news by newsmakers, activists, legal experts and special guests...
Friday, July 25, 2008
Medellin death penalty case exposes hollow Texas brand of gunslinger politics
10:30 AM ET
Bryan McCann [Campaign to End the Death Penalty, Austin, TX Chapter]:
"Two years ago, a fellow anti-death penalty activist and I participated in a public debate on the University of Texas
campus with the Young Conservatives of Texas (YCT). No one was surprised when the YCT's first plan of attack was to
read - verbatim - a detailed account of the particularly gruesome gang rape and murder of Jennifer Ertman and
Elizabeth Pena. Their strategy represents an all too familiar method of arguing in favor of the death penalty. Who
would have the audacity to argue race, class, or international law when confronted with the ghastly killings of two
beautiful teenage girls? Where there is mourning and outrage, there is often little room for analysis.
The death of those two girls in 1993 was no doubt a traumatic affair for their families and Houston community. But
just as the YCT used the tragedy that befell Jennifer Ertman and Elizabeth Pena at our public debate to ignore
fundamental structural problems with the death penalty, Texas Governor Rick Perry is using it, coupled with his usual
brand of Lone Star ethos, to ignore international law. As courageous groups like Murder Victims' Families for Human
Rights have long attested, such manipulation does little to ease the pain of devastated families.
If Texas gets its way, Jose Medellin will be the second of the five men sentenced to death for the Ertman and Pena
murders to be executed. However, his pending execution date of August 5 has become a topic of considerable
international controversy. Though Derrick O’Brien, who was executed in 2006 for the crimes, was a native of Texas,
Joe Medellin is a Mexican national. He was denied access to a Mexican consulate for legal assistance during his original
trial. This flagrant affront to international law enshrined in the Vienna Convention on Consular Relations prompted the
International Court of Justice to issue a 2004 order to stay Medellin's execution. This prompted none other than
President Bush to issue a memorandum ordering Texas to halt the executions and review the convictions of the
Mexican nationals, including Medellin, mentioned in the ICJ order. When George W. Bush, former Governor of Texas,
is issuing orders to honor international law and halt executions, the stakes are clearly very high.
Yet, in March, the U.S. Supreme Court ruled that Bush had overstepped his boundaries and Texas may proceed with
the execution of Medellin and other inmates forced to navigate Texas criminal law without consular advice. In
response to a more recent order by the ICJ, Perry’s office responded with its typical frontier zeal:
The world court [ICJ] has no standing in Texas and Texas is not bound by a ruling or edict from a foreign court. It is
easy to get caught up in discussions of international law and justice and treaties. It's very important to remember that
these individuals are on death row for killing our citizens.
This is familiar language from Perry's office. When the European Union issued a declaration on the eve of Texas’
400th execution since 1982, encouraging the state to place a moratorium on executions, the Office of the Governor
230 years ago, our forefathers fought a war to throw off the yoke of a European monarch and gain the freedom of
self-determination. Texans long ago decided that the death penalty is a just and appropriate punishment for the most
horrible crimes committed against our citizens. While we respect our friends in Europe, welcome their investment in
our state and appreciate their interest in our laws, Texans are doing just fine governing Texas.
"These individuals are on death row for killing our citizens." "Texans are doing just fine governing Texas." It seems the
Lone Star State’s busy death row is nothing less than an homage to the spirit of American and Texas independence,
international law be damned. Such populist appeals resonate all too well with what I believe to be one of the finest
articulations of how capital punishment operates in American society. Legal scholar Austin Sarat writes, "State killing is
part of a strategy of governance that makes us fearful and dependent on the illusion of state protection, that divides
rather than unites, that promises simple solutions to complex problems."
The death penalty in Texas and elsewhere requires simplicity. There is no need to get "caught up in discussions of
international law and justice and treaties" when we can view the poisoning of convicted criminals as a testament to
our rugged collective identity. As we quickly learned at our public debate two years ago, the death penalty cannot
withstand the slightest amount of complexity. The closer one looks, the more unsightly this depraved institution
becomes. Whether it be the risk of making Americans abroad more vulnerable to prosecution because of their
government's disdain for international law or the well documented socio-economic disparities that permeate the
nation's death rows, the complexities of capital punishment are ultimately its undoing. Thus, Rick Perry's usual brand
of gunslinger politics – all too similar to that of his predecessor – is about much more than his own Texan roots. It is
the lifeblood of a cruel and ineffective state sanction that allows him to convince ordinary Texans that he is on our
side. When Texas ranks 37th in spending on public education, it is little surprise that Perry and his colleagues cling so
dearly to this irreparably broken strategy of governance."
Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the
views of JURIST's editors, staff, or the University of Pittsburgh.