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)
14th Amendment Applies to Latinos
Latinos & the U.S.
Criminal Justice System
Miranda v. Arizona (1966)
5th Amendment
Right Against Self-Incrimination
Latinos & the U.S.
Criminal Justice System
Escobedo v. Illinois (1964)
6th Amendment
Right to Counsel
Latinos & the U.S.
Criminal Justice System
U.S. Brignoni-Ponce (1975)
4th Amendment
“Mexican appearance” a relevant
factor for a border stop
Latinos & the U.S.
Criminal Justice System
U.S. v. Martinez-Fuerte (1976)
4th Amendment
“secondary inspection area”
border stop held constitutional
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”
Latinos & the U.S.
Criminal Justice System
United States v. Flores-Montano (2004)
4th Amendment
Dismantling of vehicle’s gas
tank at border constitutional
Latinos & the U.S.
Criminal Justice System
Medillin v. Dretke (2005)
Article II Treaty Power
Consular Notification
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
Article 36 of the Vienna Convention
“COMMUNICATION AND CONTACT WITH
NATIONALS OF THE SENDING STATE”
I.
Consular officials may contact their nationals, and
nationals may contact their consular officials.
II.
Upon foreign national’s request, consular officials must be
notified of arrest. Requires notice to foreign national of
this right.
III.
Consular officials have rights to visit foreign nationals in
custody and prison, and arrange for their legal
representation.
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
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
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
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
1923-1972
First state-wide statute centralizing death penalty administration
Racism in Death
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”
1972-present
Contemporary Administration of the Texas Death Penalty
 As of October 24, 2005, while Texas had executed 351 postFurman, the entire number of executions nationwide was 987.
 Thus, Texas alone accounted for a full 35 percent of all postFurman 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.”
1972-present
Contemporary Administration of the Texas Death Penalty
Texas’ Most Recent 5-year History 2000-2005
Year
2000
2001
2002
2003
2004
Texas
Total
Texas Percent
Executions Executions
of total
40
85
47%
17
66
26%
33
71
46%
24
71
37%
23
59
39%
1972-present
Contemporary 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)
1972-present
Contemporary 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”)
1972-present
Contemporary 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
1972-present
Contemporary 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
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
Political Actions
“We respectfully believe the
executive determination exceeds
the constitutional bounds for
federal authority.”
Statement of Texas
Attorney General Greg Abbott
Political Actions
Two days after instructing states to
follow Avena, Bush administration
announces withdrawal of the
Optional Protocol of the Vienna
Convention
Political Actions
Legislative Efforts
 Federal Regulations 28 C.F.R. 50.5,
“Notification of Consular Officers upon the
arrest of foreign nationals.”
 California
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
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
The End