ENGLISH TRANSLATION BY SUSAN RASCN

Arte Pblico Press Houston, Texas

Mexicans on Death Row is made possible through grants from the City of Houston through the Houston Arts Alliance. Recovering the past, creating the future Arte Pblico Press University of Houston 452 Cullen Performance Hall Houston, Texas 77204-2004 Cover design by Mora Des!gn Ampudia, Ricardo, 1949[Mexicanos al grito de muerte. English] Mexicans on Death Row / by Ricardo Ampudia; English translation by Susan Rascn. p. cm. Includes bibliographical references. ISBN 978-1-55885-548-9 (alk. paper) 1. Capital punishmentUnited StatesCases. 2. Mexicans Legal status, laws, etc.United States. I. Rascn, Susan Giersbach. II. Title. HV8699.U5A7713 2010 364.66092'36872073dc22 2010033484 CIP The paper used in this publication meets the requirements of the American National Standard for Information SciencesPermanence of Paper for Printed Library Materials, ANSI Z39.48-1984. 2010 by Ricardo Ampudia Printed in the United States of America
10 11 12 13 14 15 16 10 9 8 7 6 5 4 3 2 1

To Scott Atlas, Sandra Babcock, Carlos Marn, for their part in securing Ricardo Aldapes freedom

Table of Contents
Prologue by Fernando Solana | xi Introduction | xv
1 | THE DEATH PENALTY

Acknowledgments | ix

Definition and history of the death penalty;The death penalty debate The legal evolution of the death penalty; Death penalty and legislation cases; The legal procedure of the death penalty; Life on death row and the execution of a convict

50 | THE DEATH PENALTY IN THE UNITED STATES

104 | CONSULAR PROTECTION OF MEXICANS SENTENCED TO DEATH IN THE UNITED STATES History of the consular protection provided by the government of Mexico to its citizens abroad; The situation of Mexicans sentenced to death in the United States; The work of the Mexican government in the protection of Mexican citizens sentenced to death in the United States

143 | THE AVENA CASE

Background; The case concerning Avena and other Mexican nationals (Mexico v. United States) before the International Court of Justice The murders; Writ of Habeas corpus; Evidentiary hearing; Vindication

168 | THE ALDAPE CASE

230 | FINAL REFLECTIONS AND CONCLUSIONS

Glossary | 235
241 | Appendix 1-A. The death penalty worldwide 261 | Appendix 1-C.

Appendices | 241

256 | Appendix 1-B. Global categories regarding the death penalty a] Anti-death penalty organizations and groups in the United States; b] International legislation regarding the right to life and opposed to the death penalty

279 | Appendix 2-A. Minors executed under the death penalty

Bibliography | 282

Acknowledgments

O JORGE ACERO, LEGAL DIRECTOR OF THE MEXICAN Consulate General in Houston from 1990 to 1992, and to the legal directors of the Mexican Consulates abroad, excellent attorneys who practice their profession in another country, under different legal codes. To public defenders and private law firms in the United States that defend Mexicans sentenced to death. To the non-governmental organizations that support the causes of the defense of Mexicans in the United States. To Dr. Hermilo Lpez Bassols and Quetzalli Padilla, for their unwavering support in the work on the subject matter of this book. To Jos Paoli Medelln, for the documentary research he helped me conduct, and to Adriana Bosada Ramrez de Arellano for the Spanish translation of various texts that are part of this document. To Fernando Solana, Andrs Rozental and Aurora Adame of the Mexican Council on International Affairs for their support in the publication of this book. To Emma, Roberta, Leandro and Ricardo, who with their customary enthusiasm supported me throughout the writing of this book.

ix

Prologue

ICARDO AMPUDIA, WHO COMES FROM A WELL-KNOWN journalistic family, has extensive experience in business, communications and public relations. I have personally witnessed his work on behalf of better relations between Mexico and other countries. Ricardo did outstanding work as Mexican Consul in Houston. Not only was he a great promoter of business and our national image, but he also actively participated in the tasks of persuasion and information on behalf of the North American Free Trade Agreement (NAFTA). This responsibility was extremely complex, but he managed to convince those whom he needed to convince in Texas, and particularly in Houston, of the benefits of the treaty for both countries. Another project in which he participated actively was the communications system of the Secretariat of Foreign Relations, which provided information so that all representatives of Mexico abroad would be fully apprised of the Secretariats positions. As a result of this joint effort, diplomats and consuls played an active role in promoting Mexican opinion across very diverse areas. He also participated in organizing the first Bush-Salinas interview, whose relevance goes without saying. In short, he was a witness and a leader in some key moments in our relationship with the United States. Among the problems that Ricardo experienced firsthand as a consular official, the death penalty is one of the most complex. This extreme punishment that has caused so much international controversy allows him to delve into a wide range of subjects, including civil and criminal rights, limits on government power and the daily functioning of the justice system.
xi

xii

FERNANDO SOLANA

With his personal and professional experience as a point of departure, Ricardo undertakes a profound, well-researched reflection on the topic. He is particularly concerned with reporting the practical and financial implications of this form of punishment, and demonstrating that executions are at times due more to causes such as racism and xenophobia than to solid evidence of the defendants guilt. Thus the overview begins with death as a historical human penalty, later it is taken up again in criminal procedure in the United States and finally it becomes an opportunity for a detailed analysis of that countrys judicial system. Consular protection of Mexicans sentenced to death has not been, nor will it ever be, a trivial matter. The number of people, and the amount of material and political resources required to defend all those sentenced to death can be overwhelming, but so is the evidence that judicial systems are adapted and constructed upon interests and identities that are far from impartial. Article 36 of the Vienna Convention, the Aldape case, and the Avena case are always useful references for close observation of the functioning and the difficulties of justice. It is essential to distinguish the death penalty as a government policy from that extreme punishment when the motive is personal. If we think of our loved ones being harmed by a criminal act, it is logical and could even be reasonable to wish that the guilty party pay with his life. However, the distance between that just (perhaps vengeful) impulse and a government position should, as a matter of principle, be very great. In order to fully understand the other side of the story, it is worthwhile to consider the bias in the dispensing of justice. The influence of public opinion and the media over judges can be one valid source of concern. If one intends to examine the subject seriously, in addition to questions on the effectiveness of this measure, the relevant contexts must also be set forth. Judges and courts, in addition to possessing their own set of values, empathies and stereotypes, are systematically permeated by public opinion. Therefore let us recall the economic necessity that at times moves our fellow citizens to emigrate, the difficulties of the U.S. environment for Mexicans and discrimination, present in an increasing number of academic, legislative and civil voices. If in the United States the citizens charged with dispensing justice feel closer to the threat per-

PROLOGUE

xiii

ceived by Huntington and the Minute Man Project than to the dream of the inclusive melting pot, it is possible that their decisions may be less impartial than they should be. The execution of Mexicans has not come out of the binational agenda. The situations of Jaime Elizalde and Angel Maturino demonstrate that, although the death penalty is on the decline worldwide, the United States is the exception. The risks of a national discourse that is weak on this subject, as on many others (let us think, for example of the International Criminal Court), may determine the future of relations. Mexicos Supreme Court of Justice determined that when there is an extradition treaty with another country, the International Extradition Law is not applicable. Let us not forget, then, that on a more general level, the debate may be that of multilateral institutions and international law versus national sovereignty. May this book serve, therefore, as a stimulus for reflection on the present and the future of bilateral relations, criminal justice systems and the risks of making the death penalty a government policy. Fernando Solana

Introduction

EALING WITH THE TOPIC OF THE DEATH PENALTY IS A daunting task. Remembering the look in the eyes of my Mexican compatriots who were about to lose their lives at the hands of our northern neighbors government, controller of legal violence, is an experience that leads to profound reflection on life and death. As Consul General of Mexico in Houston, Texas, my mission was to follow the cases of several Mexicans who had been sentenced to death. This situation provided me with, among other things, the opportunity to examine the phenomenon from a special position: not only was I to advocate for these people but also I was to make them feel, through my actions and attitudes, that they were not completely alone in a strange land, and that their own nation had not abandoned them. The Ricardo Aldape case, which will be covered in this book, is part of my life. Between 1989 and 1992, as part of my consular duties, I had to pick up the case, interview Aldape, examine the facts and arrange for a U.S. law firm to take on his defense. As a Mexican government official, my countrys representative before a foreign power, my duty was to support and defend my fellow citizens. This duty required conscientious work, since the facts clearly showed that Aldape was innocenta mere victim of irrationality, xenophobia and a legal system that wanted to find a scapegoat. Aldapes defense was primarily handled by Scott Atlas, an attorney from the firm Vinson & Elkins. He handled the case for more than five years and at tremendous cost. Also of great importance was the participation of Sandra Babcock, a court-appointed attorxv

xvi

INTRODUCTION

ney in the Houston court system. I mention them here because, fortunately, their efforts bore fruit. After fifteen years in a maximumsecurity prison, having had four different execution dates, Ricardo Aldape was released. The district attorneys office dropped the charges due to procedural issues as well as the merits of the case. Sadly, Aldape died four months later in a terrible car accident while he was traveling from Mexico City to his native Monterrey. All of this made me question this law: What does the death penalty solve? Does the death of the killer bring back the lost life or the lost years? Does it erase the suffering and the pain? Is it true that such a punishment will prevent crimes from being committed? What is it about human nature that leads us to take the life of another human being? What is the nature of crime? Is it truly just to take one life to pay for another? What about involuntary manslaughter, killing in self-defense, state assassination? To what point is it valid to take the lives of others, whether they are criminals or not? Is justice blind? How many innocents have been killed in the name of justice and law? Beyond our religious beliefs, the ethical dilemma involved in taking a position on the death penalty leads to radicalization. Those who have seen people on death row witness the anguish, not only of the condemned but also of their family. This anguish is even worse when the condemned are poor immigrants in a highly developed country, victims of contempt, intolerance and often injustice. While I do not believe that the situation is easy for those sentenced to death in their own countries, I do believe that it is much worse for a Mexican sentenced to death in the United States. My experience in carrying out my consular duties led me to write down my reflections and analyze this controversial issue. Although initially, and in a way involuntarily, I had to approach the phenomenon with an almost anthropological methodology, the years have allowed me to gather and study a multitude of documents and testimonies regarding the death penalty. Unlike my prior research on the Church, and the Mexico-U.S. bilateral relationship reflected in presidential reports, on this occasion I had the opportunity to consult specialized bibliographical sources. These tools have a virtue: they allow us to see what the discussion of the topic is at this time and who its main actors are. The number of biblio-

INTRODUCTION

xvii

graphical sources dealing with the death penalty is astonishing, most of them against it, but more amazing is the number of organizations devoted to its study, many of them dedicated to fighting for its eradication. There is one fundamental reason I decided to write about the death penalty and Mexicans sentenced to death in the United States. I would like Mexican citizens to be aware of the dilemmas involved in capital punishment. It is terrifying that many Mexicans, because of Mexicos lack of security, are considering implementing the death penalty in Mexico. Although the death penalty has not been used in many years, it was included in several recent Mexican laws. Fortunately, recognizing that life is the most important human right, in March 2005, the Senate of the Republic passed a constitutional reform that explicitly prohibits the death penalty in Mexico.1 The Chamber of Deputies ratified this reform in June 2005.2 Since the reform was of a constitutional nature, it was sent to the thirty-one state congresses. It can be stated, however, that the message sent by the Mexican government with this proposal not only means reaffirming Mexicos continuing adherence to the international treaties and accords,3 but also the most significant commitment that we today celebrate and agree on with society and with the Mexican people.4
1

The reform of Article 22 of the Constitution establishes that Punishment by death, mutilation and infamy, branding, flogging, beating with sticks, torture of any kind, excessive fines, confiscation of property and any other unusual or extreme penalties are prohibited. The measure also deletes the language that no one shall be deprived of life without a trial, previously established in Article 14 of the Magna Carta. 2 The reform of Articles 14 and 22 of the Constitution, expressly indicating that the death penalty is prohibited in Mexico, was approved in the session of the special term, with 412 votes in favor and two abstentions. 3 PRD Deputy Arturo Nahle Garca said that with this reform the nation complies with different international treaties and accords that Mexico has signed and in which the use of capital punishment is rejected. He emphasized the importance of this reform, since there still remained gaps in the law that would allow a person in Mexico to be subject to sanctions that would lead to the death penalty, especially for crimes of a military nature or treason. Notimex, Aprueban reforma que prohbe pena de muerte en Mxico, 23 Jun 2005 <noticias.aol.com.mx/ nacional/notas/sfcg/?id=1804>. 4 These are the words of PRI senator and president of the Human Rights Comission, Satot Snchez Carreo cited in Arturo Snchez: Elimina Senado la pena de muerte en Mxico, 17 Mar 2005 <www.canaldelcongreso.gob.mx>.

xviii

INTRODUCTION

Upon searching in different media for the Mexican peoples reaction to the constitutional reform prohibiting the death penalty in Mexico, I was very concerned when I read some of the comments of my fellow citizens. There was someone who claimed not to understand because this being the time when [the citizenry in general], is suffering from a lack of security and abuse at the hands of murderers, rapists, kidnappers, etc., the authorities [. . .] succeed, almost unanimously, in eliminating the death penalty from the Constitution.5 In my opinion, it is cause for concern that society does not take into account the many occasions on which an innocent person has been executed pursuant to the death penalty and, likewise, that it is unaware of the practical implications and the costs of the death penalty. These are two aspects about which this book seeks to inform. On the other hand, from Mexicos earliest days as an independent country, it has had a humanitarian tradition that molds its values and culture and makes Mexicans a people averse to corporal punishment. We can say that, as a majority Christian country, we value life and have a sense of the transcendent; we do not believe that we return anything to the victim by killing the murderer. Therefore, I insist that the idea of an eye for an eye cannot be legitimized, because it has not reduced crime in those countries that use the death penalty. It is true that the judicial and prison system, even in Mexico, suffers from enormous deficiencies and irregularities. It might seem simple for society to attempt to reinstate the capacity for legal murder and take justice into its own hands. However, it must not be forgotten that laws are for everyone to follow. So, if people took the law into their own hands, how could we guarantee justice? I believe that the experience of having seen people who have been sentenced to death waiting in subhuman conditions for up to twenty years to be executed gives me the right to do what I can to prevent the death penalty from ever being implemented in my country. At the same time, although this book does not claim to provide a solution to the problems faced by Mexican citizens abroad, it does seek to raise awareness of the suffering experienced by those (unjustly) sentenced to death.
5

Comment to the article Eliminan Pena de Muerte de la Constitutin, 17 Mar 2005 <esmas.com/noticierostelevisa/mexico/4406661.html>.

INTRODUCTION

xix

In order to achieve this objective, the book has been divided into five chapters. The first consists of a brief introduction about the death penalty: some of the methods utilized to apply it throughout history, useful statistics to give the phenomenon a global dimension, the legal and historical situation of the death penalty in Mexico, the debate surrounding this punishment, as well as a brief description of organizations opposed to the death penalty. With that, the intent is to present to the reader the context in which the discussion of the death penalty in the United States is framed, and the assistance provided by the Mexican government to its citizens who have received this sentence. The second chapter is devoted to understanding the phenomenon of the death penalty in the United States. Some historical, statistical data is provided to show the dimensions of the problem in the United States. The goal is to explain how the death penalty is carried out in the United States, from the legal aspects to the practical aspects of an execution. Both general explanations and some descriptions of specific cases are provided for this purpose. The main goal of this chapter, however, is to make the reader aware of the problems inherent in the U.S. legal system, especially the risk of innocent people being executed. The third chapter explores the work done by the Mexican government to protect its citizens abroad. The practical and legal evolution of the general consular function of protection is shown through a historical study. This section is followed by the specific analysis of cases of Mexicans sentenced to death in the United States, and the assistance provided to them by the Mexican government in order to guarantee their rights. Finally, two chapters are devoted to the analysis and description of two special cases in which the Mexican government has participated, successfully, in the protection of its citizens sentenced to death in the United States. The Aldape case, not only because the author experienced it personally, but also because of the forcefulness with which it exposes the flaws in the U.S. legal system and the importance of consular protection in the defense of those sentenced to death, described in this book by attorney Michael Mucchetti. The Avena case, for its part, is considered Mexicos greatest achievement in recent years in the area of consular protection and a victory for international law in the quest for respect of human rights.

The Death Penalty

The death penalty is nothing more than a social tic, as if the lords of history wanted to hold in their hands the wisdom of the strangler. M. VSQUEZ MONTALBN

HE PRESERVATION OF THE DEATH PENALTY AS A penal sentence is one of the most controversial contemporary topics in a large part of the international community. Although intermediate positions do not seem possible on this subject (one is either for it or against it), it has been observed that a great concern, when making a decision about it, is not the moral legitimacy of this punishment, but rather the question of whether it is just. Beyond the application of the death penalty, these debates include the questions of how it is determined who will receive this punishment, how it is carried out and what purpose it serves. This chapter is devoted to providing the reader with a general context of the death penalty, from its use throughout history, the methods currently in effect for carrying it out and the arguments for and against it. All of this will allow us to approach the U.S. case, in the second chapter of this book, with a broader vision, in order to understand and judge the need to strengthen the protection of Mexicans sentenced to death in the United States, which we will examine in the last part of this book.

RICARDO AMPUDIA

DEFINITION AND HISTORY OF THE DEATH PENALTY The death penalty or capital punishment is defined, legally, as a criminal sanction. For jurist Ral Carranc y Trujillo, this penalty is the treatment that the State imposes on a subject who has committed an antisocial action or represents a social danger, whether or not it is a wrong for the subject.1 Criminal law expert Fernando Castellanos Tena defines it as the punishment legally imposed on the criminal by the State in order to preserve the legal order.2 For his part, Ignacio Villalobos indicates that the death penalty or capital punishment is the deprivation of life or radical suppression of criminals considered incorrigible and highly dangerous.3 In short, it can be noted that these definitions, by three distinguished Mexican criminal law experts, have one thing in common: the death penalty is the definitive elimination of those criminals who have shown themselves to be incorrigible and therefore represent a serious danger to society. On the other hand, in U.S. law, the death penalty is defined as, Supreme penalty exacted as punishment for murder and other capital crimes, held not to be, under all circumstances, cruel and unusual punishment within prohibitions of 8th and 14th Amends, U.S. Const.4 The death penalty, or capital punishment, has existed along with humans, being known in practically all cultures. Throughout history and in different civilizations, however, some variation can be identified in its application. The first variation is the type of crimes that are punished. First degree aggravated homicide has been the crime for which this penalty has been most often imposed, but it has also been applied for crimes currently known as property crimes, sex crimes, crimes against health (such as habitual drunkenness), military or political crimes (mainly espionage and treason) and for those known today as federal and state crimes.
1

Ral Carranc y Trujillo, Derecho penal mexicano 10th Ed., (Mexico, Porra, 1972) 426. 2 Fernando Castellanos Tena, Lineamientos elementales del derecho penal (Mexico, Porra, 1994) 306. 3 Ignacio Villalobos, Derecho penal mexicano (Mexico, Porra, 1960) 534. 4 Henry Campbell Black. Blacks Law Dictionary 5th Ed. (USA, The Publishers Editorial Staff, 1979) 360.

Mexicans on Death Row

Secondly, we have the methods of executing the death penalty, which have varied greatly according to usage and custom of different peoples. These include, but are not limited to, stoning, wheel rack, garrotte, burning at the stake and the guillotineall of these very cruel methods, since their purpose was to inflict the greatest possible suffering on the condemned criminal. The death penalty was conceived, in ancient laws, as retribution for the commission of a crime. In the first place, we can mention the old principle of the ancient Israelites: An eye for an eye and a tooth for a tooth! According to this principle, upon one who harmed the eye of his fellow man was inflicted the same harm, through punishments that consisted of beatings, cuts and other physical punishments, even death, depending on the offense committed. It could also be applied to those who committed a professional error, such as incompetent physicians. For example, a homebuilder could be put to death if the house collapsed and killed the owner; if the victim was the owners son, the builders son had to die as well, and if it was a slave, the builder would have to give his customer a slave to replace the one who had died.5 At first, private vengeance was a right and a duty of the victims family. Killing the one who had killed was a just and moral act. Then, centralized authority was asserted; private vengeance was limited and eventually disappeared. Repression went from being an instinctive reflection of revenge to being a rational organization of criminal procedure.6 In societies as ancient as the Mesopotamian in the twenty-first century B.C., we begin to glimpse the replacing of private vengeance with State justice.7 Under the Code of Hammurabi, when someone was accused of murder or magic, the accused had to prove his innocence by subjecting himself to the water experience (in this trial, the accused was thrown into the river) and, if he did not survive, the sentence was already carried out with his death; similar punishments, such as impaling and burning, were also used. Robbery, harboring, homicide, adultery committed by a woman, incest
5

Carl Grimberg, El alba de la civilizacin, Historia Universal Daimon (Mexico, Daimon, 1967) 247. 6 Ikram Antaki, El manual del ciudadano contemporneo (Mexico, Ariel, 2004) 267. 7 Cf. ibid.

RICARDO AMPUDIA

and witchcraft were acts that had to be paid for with ones life, in most cases. Slander (those who falsely accused someone of robbery), burglary, failure to perform duties by a soldier, stealing a woman without her parents consent, were all punished by death as well.8 In Egypt, any offense against the sacred (killing a sacred animal), a false statement of income, parricide and adultery by a woman were all punished by the death penalty. On the other hand, the death penalty for the Hebrews was pronounced by a patriarch who decided who should be allowed to live and who should not. When a centralized authority was imposed, a payment system was established, based on retribution for the offense; for example, a family was legally entitled to demand compensation, but in homicide cases, the maximum penalty was imposed upon the perpetrators. In order to prevent mistakes in the courts, it was necessary to present a certain number of witnesses. The death penalty was imposed for violations such as adultery, incest, hiding that a woman was no longer a virgin when she married, sodomy, rape and on those individuals who worked on Saturday. The first systematic laws regarding the death penalty occurred with the Greeks and the Romans. It is well known that the Greeks had a great cultural influence on Rome, the latter being known for their vast jurisprudence and the Greeks for being great philosophers, a combination that produced the development of the philosophy of law. It is only from this time forward that we can speak of a clear system of rules between men and the State, as well as consistent punishment for those who break the laws imposed by the judicial system. In Greece, the death penalty sanction was imposed in cases of treason, if one conspired against the forms of government or if one accepted a public position from a usurper. Such sanctions were issued by tribunals made up of the citizens themselves, who were in charge of judging the accused. In Rome, the first crime punished with the death penalty was that of perduellio, for treason against the nation. Later, in the Twelve Tables, it was put in place for other crimes as well. While the Twelve Tables were in effect, the authorities allowed the victim or his rela8

Carl Grimbert. Op cit., 244.

Mexicans on Death Row

tives to apply an eye for an eye. However, there were also government officials in charge of the execution, thus making the death penalty the prevailing sanction. Although not abolished, it fell into disuse and was not brought back until the era of the emperors.9 Later, the arrival of Christianitypreaching love of neighbor and the divine nature of lifelaid the foundation for the tendencies favoring abolition of the death penalty, which we will analyze below. In the next sections of this chapter, we will detail the death penalty methods that have been used throughout history, as well as this sanctions current situation in the world in general, and in Mexico specifically.
DEATH PENALTY METHODS

As has been pointed out, historically there have been countless ways of applying the death penalty, from the garrotte, the most rudimentary, to the sophisticated gas chambers of our times and everything in between, from stoning (practiced by Jews and Arabs), to throwing people to the lions (a favorite of the Roman circus), to the gradual removal of organs (practiced in China), among others. Presently, the means employed are mainly hanging and firing squad. Hanging is established in the legal codes of many countries, such as Egypt, Iran, Japan, Jordan, Pakistan, Singapore, etc.; and execution by shooting in the legal codes of countries such as Belarus, China, Somalia, Taiwan, Uzbekistan and Vietnam.10 In the United States, the type of death penalty varies according to the state that allows it. When both techniques are provided for, the firing squad is often reserved for crimes during time of war or for death sentences issued by military tribunals. The characteristics of the methods currently used to carry out the death penalty are briefly summarized below. These descriptions, which may seem crude, are not presented to generate controversy in the reader, but rather to simply describe what really happens, thus
Claudio E. Pandolfo, Roma Eterna, 8 May 2004 <http://www.romaeterna.9f.com/ Roma_Consular/La_Ley_de_las_XII_Tablas.htm> 10 Amnestry International, 6 Feb 2007 <http://web.amnesty.org/pages/deathpenaltyfacts-esl>.
9

RICARDO AMPUDIA

giving a general impression of the steps that a person sentenced to death must necessarily go through at the time of execution:11 1) Hanging. The condemned is attached to a rope tied around his neck and succumbs due to the force of gravity from the weight of his body. Unconsciousness and death are caused by injuries to the spinal cord or, if this is not enough, by strangulation, due to contraction of the trachea. It is worth noting that the Spaniards used this practice during and after the Conquest, as Cuauhtmoc died this way. This is also how Saddam Hussein died in 2006. 2) Shooting. The execution is carried out by a single individual or a military unit. The condemned died from one or several of the following causes: wounds to vital organs, such as the heart, wounds to the central nervous system or hemorrhage. Although one shot to the back of the neck at close range should cause immediate loss of consciousness, the procedure may last longer in executions carried out by a firing squad, in which the soldiers shoot from a longer distance and therefore, with less accuracyand they may have been ordered to aim at the trunk, easier to hit than the head. Although some of the condemned may remain conscious after the initial shots, even in normal firing squad executions, certain executions have been thought to prolong the victims suffering. Noteworthy in Mexico are the executions by this method of several heroes of Independence, as well as those carried out during the Revolution. 3) Electric Chair. After tying the prisoner to a chair constructed for this purpose, the executioners place moist copper electrodes on the head and one leg of the condemned, whose leg and head have been shaved to guarantee good contact between the electrodes and the skin. Strong, intermittent electric shocks are employed. Death is caused by cardiac arrest and paralysis of the respiratory system. The electric chair causes perceptible destructive consequences, as it burns internal organs. When the current is applied, the condemned frequently jumps, pulling on the straps that immobilize him; in
11

Pena de muerte, 8 May 2004 <http://www.ya.com/penademuerte/tipos_torturas notfinal.htm>.

Mexicans on Death Row

some cases, he may defecate, urinate or vomit blood. Eyewitnesses consistently express that they notice a smell of burned flesh. The electric chair was used for the first time in the United States, with the idea that it would be more merciful than hanging. Sister Helen Prejean describes how it was that the electric chair began to be used: Death in the electric chair was begun in the United States in 1880 in the Auburn State Prison in New York, when William Kemmler was executed. The New York Times referred to the new technique as euthanasia by electricity. The U.S. Supreme Court, upholding the decision of the State Appeals Court, which had stated that the electric chair was not cruel and unusual punishment, concluded that existing knowledge about electricity allowed for the generation and use upon the person of the condemned a charge of electric current with the intensity necessary to cause instant, painless death. A correspondent from the New World newspaper who was present at Kemmlers execution stressed: The current had been passing through his body for fifteen seconds when the electrode at the head was removed. Suddenly the breast heaved. There was a straining at the straps which bound him. A purplish foam covered the lips and was spattered over the leather head band. The man was alive. Warden, physician, guards . . . Everybody lost their wits. There was a startled cry for the current to be turned on again. [. . .] An odor of burning flesh and singed hair filled the room for a moment, a blue flame played around the base of the victims spine. This time the electricity flowed four minutes.12 4) Decapitation. According to the procedure utilized in Saudi Arabia and Qatar, and established in the laws of the Arab Republic of Yemen and the United Arab Emirates, decapitation consists of separating the head from the trunk by striking it with a saber. Although the goal is that the sharp edge of the weapon quickly cut the spinal
12

Sister Helen Prejean, La pena de muerte (Barcelona, Ediciones B, 1996) 30.

RICARDO AMPUDIA

cord and cause loss of consciousness through trauma, various additional blows may be necessary, since the saber is a relatively lightweight weapon, and the length of time the execution takes depends on the strength and ability of the executioner. The guillotine has also been used since the seventeenth century. 5) Lapidation. This execution, consisting of killing the condemned with blows from stones, is generally carried out with the accused buried up to the neck or tied up in some manner. Death may be caused by brain injuries, asphyxiation or a combination of injuries. Since the individual can endure strong blows without losing consciousness, stoning can cause a slow death. This sanction is presently used in Muslim countries against woman who have been unfaithful. 6) Execution by gas. The condemned is tied to a chair inside an airtight chamber; tied to his chest is a stethoscope connected to headphones in the adjacent witness room, so that a doctor can participate in the execution process. Cyanide gas is released into the chamber, poisoning the prisoner when he breathes. Death is caused by suffocation due to inhaling or ingesting the cyanide through the respiratory enzymes that carry oxygen from the blood to the other cells of the body. Although loss of consciousness may occur quickly, the procedure takes long if the prisoner attempts to prolong his existence by holding his breath or breathing slowly. As with other execution techniques, the vital organs may continue functioning for some time, whether the person is conscious or not. 7) Lethal injection. This consists of the continuous intravenous administration of a lethal amount of a fast-acting barbiturate combined with a paralyzing chemical product. The procedure is comparable to that utilized in hospitals to administer general anesthesia, but the products are given in lethal amounts. In Texas, one of the nineteen U.S. states where execution is carried out by lethal injection, three substances are employed simultaneously: sodium thiopental, pancuronium bromide and potassium chloride. The first substance is a barbiturate that causes loss of consciousness; the second is a muscle relaxant that paralyzes the diaphragm, thus making breathing impossible; and the third puts the condemned into cardiac arrest. Any resistance by the accused may cause the drug to enter a muscle or an artery, which

Mexicans on Death Row

causes pain. Finding an appropriate vein into which to insert the needle is not a simple task and sometimes requires a small surgical procedure. In one case in Texas in 1985, more than twenty-three attempts were required before the needle was inserted into an appropriate place, and the process took forty minutes. On this point, Helen Prejean recalls the perspective of Ronald Reagan, President of the United States during the 1980s: Being a former farmer and horse raiser, I know what it is like to try to eliminate an injured horse by shooting him. Now, you call the veterinarian and the vet gives it a shot and the horse goes to sleepthats it. It seems clear that lethal injection is a more merciful method of execution than those employed in the past [and not long ago, since techniques such as poisoning, stoning, guillotining, crucifixion, burning at the stake, throwing off a cliff, pouring molten lead over the body, starving, sawing up, burying alive, impaling, drowning, dismembering, crushing with weights, throwing into burning water, throwing into a pit with reptiles, being devoured by wild animals, disemboweling, strangling, beating to death, crushing in the stocks, tearing apart on the torture rack, suffocating, electrocuting, shooting and asphyxiating in the gas chamber are all still employed in the present day]. Statistics show that currently the lethal injection method is preferred because it practically eliminated visible physical pain. All that is felt is a slight prick in the vein. Nevertheless, there remains an aspect of suffering that will never be eliminated as long as death is imposed upon a conscious subject: the horror of being executed against ones will and the agony of the wait.13 As this book goes to press, the arguments in favor of lethal injection are being seriously questioned, due to the case of Clarence Hill, sentenced on September 20, 2006 to death by lethal injection in Florida. The U.S. Supreme Court, because of the Clarence Hill case, in which public opinion challenged the death penalty, has fo13

Ibid., 350.

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cused attention on the appeals by individuals sentenced to death who argue that the drugs used in the executions cause extreme and unnecessary pain, thereby violating the 8th Amendment against cruel and unusual punishment.14 The district courts in some U.S. states, such as California and Missouri, have found the practice of lethal injection to be unconstitutional because it lacks safeguards that would allow better application of this death penalty. Later, in December 2006, Florida Governor Jeb Bush ordered a moratorium on capital executions, pending clarification of the conditions under which prisoner ngel Nieves Daz was executed on December 13 of that year. Executed by lethal injection, the condemned man remained alive for thirty-four minutes, and witnesses to the execution point out that during that time he attempted to move and to speak, which stands in absolute contradiction to the legal obligation that the chemical substances used in the execution by lethal injection allow a quick, painless death.
THE DEATH PENALTY IN THE WORLD

This book deals primarily with the death penalty in the United States. However, I feel that it is essential to present the current global context on the issue, because only in that way can we understand the dimension of the phenomenon in the country under consideration. Classifying the death penalty situation, we can divide all the worlds countries into three groups. In the first place, there are a large number of countries that have abolished the death penalty for all crimes. In the second place, there are those that have eliminated it exclusively for crimes of general jurisdiction or political crimes, but preserve it for extraordinary crimes, such as treason in times of war, sabotage, religious crimes and surrender, among others. Lastly, a third group of countries, which is the majority, maintain capital punishment for a significant number of transgressions under both military justice and criminal law. It is worth clarifying that within this group there is a fourth category: those countries that maintain the death penalty for common crimes, but have not executed anyone for at least the last twenty years; these are known as de facto abolitionists.
14

See definition of death penalty under U.S. law.

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11

Of a sample of 100 countries studied in the year 2000, it was found that 32 percent had completely abolished the death penalty in their national laws; 15 percent had done so partially, and 53 percent still kept it. Some laws of these countries contemplated thirty to fifty possible causes of guilt that could bring with them the death penalty.15 In other statistical studies by Amnesty International, analyzing all the countries in the world, the following data were obtained:16
FIGURE 1.17 PROPORTION OF ABOLITIONIST AND RETENTIONIST COUNTRIES (sample of 197 countries studied in 2001) General Category Number of Countries 69 128 Percentage 35% 65% Retentionist Abolitionist

Specific Category

(Abolitionist Countries Only)

Number of Countries 88 11 29

Percentage 69% 8% 23%

Abolitionist for all crimes Abolitionist for ordinary crimes only Abolitionist in practice

It is important to note that the abolitionist thesis in the world since 1990 has advanced; more than forty countries have abolished the death penalty for all crimes: Africa (Liberia and Ivory Coast); America (Canada, Paraguay and Mexico); Asia and Oceania (Philippines; Bhutan; Samoa); Europe (Bosnia and Herzegovina; Cyprus; Serbia and Montenegro); and Asia (Armenia, Turkey and Turkmenistan).18 Note that the above chart includes 197 countries, but only 192 are members of the United Nations. Let us examine other recent statistics published by Amnesty International, which reflect executions carried out during the six15 16

For an account of this category and the main charges involved, see Appendix 1-A. Data from Amnesty International, cited in Vctor Hugo Resendes, Pena de muerte: la controversia (Mexico, Pac, 2001) 31 and Pena de muerte, 11 May 2004 <http://www.ya.com/penademuerte/listapaises.htm>. For a list of the countries included in this category and the dates the abolished the death penalty, see Appendix 1-B. 17 Amnesty International, Facts and Figures about the Death Penalty <http://web. amnesty.org/pages/deathpenalty-facts-esl>. 18 Ibidem.

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year period 1998-2004. Chinas position is particularly noteworthy, as there is a significant difference in the number of executions carried out as compared with the rest of the worldkeeping in mind that it is the most populated country.
FIGURE 2. EXECUTIONS IN 1998 China 1,067 Democratic Republic of Congo 100 United States 68 Iran 66 Egypt 48 Belarus 33 Taiwan 32 Saudi Arabia 29 Singapore 28 Sierra Leone 24 Rwanda 24 Republic of Vietnam 18 Yemen 17 Afghanistan 10 Jordan 9 Kuwait 6 Japan 6 Nigeria 6 Oman 6
SOURCE: Amnesty International 1999.

Cuba Kyrgyzstan Pakistan Zimbabwe Palestinian Authority Lebanon Bahamas Guatemala Ethiopia Syria United Arab Emirates Thailand Russian Federation Sudan Somalia San Cristobal y Nevis Iraq Uzbekistan Approximate Total

5 4 4 2 2 2 2 1 1 1 1 1 1 1 Several ? ? ? 1,625

Following the studies by Amnesty International, we can conclude that most executions are carried out by a small number of countries. For example, in 2001, 90 percent of all known executions occurred in China, Iran, Saudi Arabia and the United States. In China, the limited, incomplete figures available to Amnesty International at the end of the year indicated that at least 2,468 people were executed, but it was believed that the true figure was much higher. In addition, Amnesty International had knowledge that at least 139 executions were carried out in Iran and about seventy-nine in Saudi Arabia, although the total was possibly much higher. In the United

Mexicans on Death Row

13

FIGURE 3. EXECUTIONS IN 2004 China Iran Other countries19 Vietnam United States Approximate Total 3,400 159 115 64 59 3,797

SOURCE: Amnesty International, updated in 2007 with data up to July 7, 2005.20

States, sixty-six people were executed.21 Comparing the executions carried out between 1998 and 2004, we can confirm that countries such as the United States, China and Iran follow the same patterns with respect to the death penalty in their laws and in practice. This is in contrast to the case of Vietnam, where executions more than tripled in just four years. Similarly, it is worth pointing out that these four countries alone in 2004 represent 97 percent of executions worldwide. It is obvious that for now we cannot rely on a precise, trustworthy figure in Iraq, due to the occupation in that nation. The following chart records executions carried out between 1980 and 2004, and is a detailed description of the number of executions. With the information presented in these three charts, it can be concluded that worldwide application of the death penalty has been decreasing in recent years. Furthermore, clear evidence can be found. The countries that apply the death penalty the most are those with dictatorial regimes or repressive, far from democratic, governments (i.e. China, The Republic of the Congo, Iran, Taiwan) with the very notable exception of the United States. A geographical concentration of executions can also be distinguished, it being in the countries of the Middle East, Asia and Africa where they occur in largest numbers, and with regard to Latin America, only rarely in Cuba and Guatemala, to a much lesser degree. With confirmation of the global tendency to reduce the use of the death penalty, we find the legal reform that took place in China in 2004, through which ap19 20

This refers to the countries included in Chart 2. Amnesty International, Condenas a muerte y ejecuciones < http://web.amnesty.org/ pages/deathpenalty-sentences-esl>. 21 Amnesty International, Condenas de muerte y ejecuciones en el ao 2002, 2003.

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peals of death sentences will be reviewed by the maximum state Tribunal; this reform took effect recently, on January 1, 2007. Until recently, the Supreme Tribunal of that country did not hear many of the cases, or based its decisions simply on written reports from local and provincial courts, which practically gave the last word in death penalty cases to the provincial judges when it came to deciding whether capital punishment should be applied. According to
FIGURE 4. EXECUTIONS WORLDWIDE (1980-2004) Total number of executions recorded 1229 3278 1609 1399 1513 1125 743 769 1903 2229 2029 2086 1708 1831 2331 3276 4272 2607 2258 1813 1457 3048 1526 1114 3797 Number of countries that carried out executions 29 34 42 39 40 44 39 39 35 34 26 32 35 32 37 41 39 40 37 31 28 31 31 28 25 Number of countries with more than 100 executions NA NA NA NA 4 3 3 3 3 3 4 2 2 1 3 3 4 3 2 4 2 2 2 2 2 Percentage corresponding to the countries with more than 100 executions NA NA NA NA 78% 66% 56% 59% 83% 85% 84% 89% 82% 77% 87% 85% 92% 82% 72% 80% 77% 86% 77% 73% 94%

Year

1980 1981 1982 1983 1984 1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004

NA: Not applicable. SOURCE: Amnesty International.22

22

Amnesty International, Condenas de muerte y ejecuciones en el ao 2004.

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15

Amnesty International, this reform will reduce the number of executions and is a first step toward abolition of capital punishment.23
THE DEATH PENALTY IN MEXICO

This section is essential for full comprehension of the consular protection analyzed in this book, as the situation of Mexicans sentenced to death in the United States cannot be evaluated without first knowing the historical background and legal situation of this penalty in Mexico. The death penalty was used in Mexico even before its existence as a nation. It is known that in some pre-Columbian societies, the high priest was in charge of ordering executions. The laws of the Aztecs, for example, were characterized by their strict harshness. Although deprivation of liberty was considered as a punishment, in practice, the most common sanctions were stoning, dismemberment, hanging and being beaten to death. The Tarascos also practiced the death penalty for some crimes, such as adultery; it was imposed not only on the guilty party but also on that persons entire family. In the Maya Empire, traitors were punished with death. During the Colonial Period, the exercise of the death penalty was conferred on the vice regal authorities as well as the Tribunal of the Holy Inquisition. At the beginning of the War for Independence, there is no mention at all of the death penalty: not in the Constitutional Elements of Lpez Rayn in 1811, the Constitution of Cdiz or the Sentiments of the Nation of Morelos. In Mexicos first Constitution of 1824, no reference is made to the death penalty. In the Constitutional Laws of the Mexican Republic of 1836, there is no reference to the death penalty either. In 1842, during the Santa Anna government, a decree was issued through which anyone throwing sulfuric acid or other explosive liquid, whose sale was prohibited, was subjected to courtmartial, and capital punishment with no right to a reprieve. These were the concerns of the dictator. That same year, in the dissent of the minority of the Constituent Commission, it was pointed out:
23

Enmienda en China ley sobre pena de muerte, Beijing, Agencia EFE, 13 Oct 2004 <www.esmas.com/noticierostelevisa/internacionales/398235.html>.

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For the abolition of the death penalty, the prison system will be established as soon as possible; and meanwhile, it is abolished for purely political crimes, and cannot be extended to cases other those of highwaymen, arsonists, those who commit parricide and those who commit premeditated murder.24

The foregoing text prevailed almost to the letter in Article 13 of the Second Proposed Draft Political Constitution, dated 1842. Later, in the Organic Bases of the Mexican Republic in 1842, Article 81 provides that:
The death sentence will be imposed without applying any other sort of physical suffering beyond the mere deprivation of life.

In the Provisional Organic Statute of the Mexican Republic of May 1856, Article 56 provides:
The death penalty cannot be imposed except in cases of premeditated or for profit murder, highwaymen, arsonists, those who commit parricide, traitors to independence, those who aid a foreign enemy, those who take up arms against the established order and for purely military crimes set by army regulations. By its imposition, it will not be applied to any other sort of physical suffering.

In Article 57, it adds:

Neither the death penalty nor any other serious penalty can be imposed except on the basis of evidence that clearly proves the criminality of the accused and can be executed only by the decision of the trial court judge.

In that same year of 1856, Jos Mara LaFragua sent the Provisional Organic Statute of the Mexican Republic to the state governments, and in two paragraphs, it refers to the death penalty. In the 8th, degrading punishments are prohibited; the death penalty is
24

Sistema de Informacin legislative. Archivos Documentos <http://sil.gobernacion.bog.mx/Archivos/Documentos/2005/06/asun_2034350_20050623_1119565 372.pdf>.

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17

restrictedsince unfortunately its complete abolition cannot yet be decreedand in the 15th it is added that, although supreme necessity forces His Excellency the President to preserve that dictatorship, he wishes to demonstrate to Mexicans his honest intentions by prohibiting the imposition of the death penalty and of others, even in extreme cases. His Excellency believes that only the law, through its common bodies, can decide the fate of the lives of men; therefore even in cases in which, in accordance with Article 82, the government uses its discretionary power, this is even when other guarantees cease, that of life will be scrupulously respected. It is precisely in this last quote that we find the true spirit of Mexican liberalism with regard to the respect for life and the intention of prohibiting the imposition of death. LaFragua was an excellent speaker. Thus, it is that the idea of completely abolishing the death penalty in Mexico is in no way a new one, since Article 23 of the 1857 Constitution had a structure similar to the aforementioned Article 5 of the 1842 Constitution, which stated:
For the abolition of the death penalty the executive branch is charged with establishing the prison system as soon as possible. Meanwhile, it is abolished for political crimes, and cannot be extended to other cases other than those of: traitor to the country in a foreign war; highwayman; arsonist; one committing parricide; premeditated, with malice aforethought or for profit murder, serious crimes against military order and crimes of piracy that the law may define.

Later, in 1865, the Provisional Statute of the Mexican Empire does not refer to the death penalty at all. It was in May of 1901 that Article 23 of the 1857 Constitution was modified to read as follows:25
The death penalty for political crimes is abolished. With regard to the rest, it can be imposed only upon: a traitor to the country in a foreign war; one who commits parricide; one who
25

There was an extensive, very interesting debate in 1857 in which Prieto, Mata, Arriaga, Ignacio Ramrez, Jos Mara Mata, Len Guzmn and Ignacio L. Vallarta participated.

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commits premeditated, with malice aforethought or for profit murder; arsonists; plagiarists; highwaymen; pirates and those accused of serious crimes against military order.

It must be emphasized that in the Liberal Program of the Mexican Party, written by Ricardo Flores Magn and dated in St. Louis, Missouri, on July 1, 1906, the Mexican Liberal Party proposes a constitutional reform in which it states: Abolition of the death penalty, except for traitors to the country. Venustiano Carranza presented his draft Constitution in Quertaro on December 1, 1916. Referring to the death penalty, contained in the third paragraph of Article 22 of the draft, the Decree of January 1917 stated:
The life of a society implies the respect of all its members toward the permanent maintenance of the conditions necessary for the coexistence of the rights of men. While the individual is limited to securing the satisfaction of all his desires without infringing upon the rights of others to do the same, no one may interfere in his conduct; but from the moment when, through an attack against the right of another, he disturbs those conditions of coexistence, the interests of the offended party and of society unite to justify that the activity of the guilty party be limited to the extent necessary to prevent new attacks. The extent of societys right to punish is determined by the character and nature of its members, and may go so far as applying the death penalty if that is the only means of guaranteeing the safety of the public. The fact that Humanity has not attained the degree of perfection necessary for the death penalty to be considered useless is confirmed by the fact that in the majority of the countries where it has been abolished, it has been necessary to reinstate it within a short time. Those for and against capital punishment agree on one thing: that this punishment will disappear with the advance of reason, the softening of customs and the development of prison reform.26
26

Presentacin y debate del Artculo 22 constitucional en el Congreso Constituyente de 1916, Diario de Debates de 1917, included in Cmara de Diputados, Derechos del pueblo mexicano; Mxico a travs de sus constituciones (Mexico, SLVI Legislatura de la Cmara de Diputados, 1967) [volume IV, Antecedentes y evolucin de los artculos 16 a 27 constitucionales] 338.

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19

The draft of Article 22, in its third paragraph referring to the death penalty, stated as follows:
The death penalty for political crimes is prohibited also, and with regard to the rest, it can be imposed only upon: a traitor to the country in a foreign war; one who commits parricide; one who commits premeditated, with malice aforethought or for profit murder; arsonists; plagiarists; highwaymen; pirates, rapists and those accused of serious crimes against military order.

The draft article preserves the death penalty in the same cases expressed in the 1857 Constitution, and extends it to rapists, under the following argument contained in the aforementioned Decree of January 8, 1917:
Certainly, the crime of rape may leave the victim in such a miserable and dreadful moral situation that she would have preferred death; the harm caused by this crime may be as great as that caused by a first-degree homicide, which justifies the application of the same penalty in both kinds of cases.27

Several Constitutions of the states of the Republic adopted Article 22 of the Constitution with regard to the death penalty, with very different language. This was the case of Colima, Michoacn, Nuevo Len, Sinaloa and Veracruz. It is also appropriate to point out that from 1917 to the present day, several Latin American countries have modified their constitutions with texts similar to that of the Mexican one. Such is the case of Argentina, Bolivia, Brazil, Colombia, Costa Rica, Chile, Ecuador, Panama, Uruguay and Venezuela. Cuba prohibits the death penalty with the exception of certain cases of a political nature. Guatemala allows the Justice Tribunals to impose the death penalty for crimes determined by law, but it cannot be applied to women or minors. On the other hand, the Code of Military Justice, based on the option granted by the 1917 constituents, also provided for the death penalty for serious crimes: rebellion, desertion, false alarm,
27

See the record of proceedings of the session of December 5-8, 1917. Decree and debate.

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espionage, revolt resulting in the death of a superior, among others. The last time the death penalty was applied in Mexico was the case of infantry soldier Isaas Constante Laureano in 1961, in Saltillo, Coahuila. From then to the present day, the thirty-two soldiers who had been sentenced to death were pardoned or the sentences commuted in their cases. Thus, the Chamber of Deputies approved deleting the death penalty from this code in April 2005.28 In light of the foregoing, if the death penalty was in effect in Mexican law until very recently, why was it not being applied? The explanation is found in the fact that, while the military legislature used the permission granted by the Constitution to impart justice through the death penalty, the civil legislature did not use this option, as the Federal Penal Code did not contemplate this penalty, since it deleted it from its text in 1929. On the other hand, following the 1929 Code, the 1931 Penal Code for the Federal District and Territoryin effect in the Federal District in matters of federal jurisdictiondespite presenting a broad list of penalties and security measures, did not include capital punishment within its sanctions.
DEVELOPMENT OF THE ABOLITION OF THE DEATH PENALTY IN THE MEXICAN CONSTITUTION

Thus, we see that, in the early twenty-first century, the guidelines outlined by these federal codes were still being followed, as there was always the possibility that state congresses would permit capital punishment in their respective laws for the cases prescribed by Constitutional Article 22. Therefore, the only way of establishing that the death penalty was not applicable in Mexico would be for Article 22 to prohibit it totally with no exceptions, and for Article 14 not indicate that no one can be deprived of life, which doubtless reflects the
28

With 346 votes in favor, the full Chamber of Deputies ratified the modifications to the Military Code sent by the Senate of the Republic, to eliminate the death penalty and replace it with a prison sentence of thirty to sixty years. PAN Deputy Fernando Prez pointed out that the reform had been passed remembering that each person must be treated as an end in themselves and never as a means to achieve any type of objective, since the imposition of the death penalty seeks to achieve objectives that go beyond the individual person setenced (Hctor Guerrero, Eliminan pena de muerte de la justicia military).

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significance of the recent constitutional reform.29 This reform was finally adopted on December 9, 2005 in the following terms:
Article 14 No one may be deprived of life, liberty or of his land, possessions or rights, except by means of judicial proceedings before previously established courts that comply with essential formalities of procedure, and conforming to laws made previously before the case.30 [. . .] Article 22. Punishment by mutilation and infamy, branding, flogging, beating with sticks, torture of any kind, excessive fines, confiscation of property and any other unusual or extreme penalties are prohibited.31 [. . .] Repealed.32

It is now appropriate to recall the line of argument put forward in 2002 by PAN Deputy Silvia Amrica in the Chamber of Deputies, perhaps the broadest and most complete presented in the debate from 1998 to 2005. We later include a chart that contains all the initiatives against the death penalty in those seven years: National Action has as the core of its political doctrine the recognition of the eminent dignity of the human person. This is the point of departure and final objective of all its political proposals and platforms. Some years ago, Carlos Castillo Peraza pointed out that all of history shows us that the advance of men toward increasingly more human forms of social coexistence is a march of the poor, the marginalized, the dispossessed, the dependent, the different and the weak, toward the recognition of their dignity as people with their own personal worth despite their weaknesses. It is a hard road at
29 30

Vctor Hugo Resendes, op. cit., 25 Translators source: <http://historicaltextarchive.com/sections.php?op=viewarticle&artid=93>. 31 Translators source: <http://historicaltextarchive.com/sections.php?op=viewarticle&artid=93>. 32 See Political Constitution of the Mexican United States.

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times sown with martyrdom, ordeals, crimes and atrocities committed by those determined to defend their privilege, that is, private laws, biased rules that turn mere might into right. Thus, for us, the human being is a person, with a material body and a spiritual soul, with intelligence and free will, with responsibility for his own actions and with universal, inviolable and inalienable rights, the greatest of these being the right to life. The death penalty is a disproportionate reaction to the offense received. Punitive law is not the institutionalization of private vengeance. The human conscience includes principles and norms that come from the recognition of its intrinsic nature and dignity; this guides it along the pathways of life, through whose transit the individual comes to understand the rules of nature, to live harmoniously within it and to decipher its laws. This personal experience leads to discovering the existence of an ordo naturae whose substance cannot be altered by man or the State, as medieval man attempted to do. In this context, to speak of the right to life implies that we not only refer to a human right or individual guarantee, but it also entails referring to the human right that is a necessary condition for the rest of the rights to exist and be respected: the human right par excellence. With this initiative we seek to remove from our Constitution the image of savagery that bears the name capital punishment; it is for that reason that we cite just a few arguments that have been presented against judicial homicide. Let us remember the words of author Ral Carranc y Trujillo:
[T]he death penalty in Mexico is radically unjust and immoral, because in Mexico the great majority of criminals that will be threatened with a judicial death sentence are economically and culturally deprived men. Other criminals, because of their superior social or economic status, are never prosecuted, much less would they come to be subject to the ultimate penalty; but in addition, the criminal who belongs to other social classes commits a property crime and only rarely a crime against personal life and integrity, and would never have the death penalty as a consequence. Therefore, this penalty would be applied almost exclusively to humble men from among our people, men who are criminals because they are victims of neglect

Mexicans on Death Row

by the State and society, neglect in which they have been living up to the present time, victims of ignorance, inequality and poverty, of the moral deficiencies of their homes, poorly nourished. The State and the entire society are the main causes of this, and instead of providing them with schooling and the social solidarity that would give them a decent, humane life and raise their economic status to forever erase their ancestral inferiority, the State chooses to eliminate them.

23

For its part, the United Nations provides us with the following arguments in support of the absolute abolition of capital punishment. These arguments have arisen from experience, from the study of reality and from the statistics maintained by the UN Economic and Social Council: 1. The exemplary nature of the death penalty has not been proven or appears debatable. 2. Many capital crimes are committed by people with serious mental disorders, some of whom, on the other hand, escape the ultimate punishment for that very reason. 3. There are obvious inequalities in the application of death sentence law, whether because of the different degrees of severity of the courts having jurisdiction, or for reasons of an economic and sociological nature, so there is a risk that the death penalty may constitute a much greater threat for offenders who lack economic resources and who, therefore, are at a disadvantage for seeking a defense. 4. Regardless of what is done, there is an undeniable possibility judicial errors will be made. 5. The emotion aroused by the death penalty, both when a sentence is pronounced and when it is carried out, seems so unhealthy that there are those who do not hesitate to say that capital punishment may actually encourage criminal tendencies. 6. If the intention of the death penalty is to protect society, it is argued that life in prison is sufficient to accomplish this. 7. The evolution of public opinion in some countries has led them to consider the death penalty useless and odious, and

24

RICARDO AMPUDIA in this regard, it must be noted that the inequality in the application of the death penalty can strengthen these ideas, since capital punishment then appears to be a rather sinister sort of lottery. 8. The inviolable nature of human life. It is undeniable that the serious public safety crisis experienced in Mexico is due to the inadequate manner of addressing, in recent decades, the factors that cause it by encouraging criminal tendencies. The distribution of wealth is increasingly unjust because the rich are being enriched without limits, creating a huge gap with the other social classes.

Antisocial behavior must be combated mainly with educational programs that prevent the commission of crimes, and not only through repressive law enforcement actions or imposing increasingly severe punishment upon those who break the law. Modern penal doctrine insists upon the following elements as the most appropriate: crime prevention, decreased sentences, humanitarian prison systems and attention to crime victims. Obviously, it not only rejects capital punishment, but it combats it; despite the foregoing, unfortunately voices have been heard asking that it be reinstated in Mexico. In fact as Dr. Luis Rodrguez Manzanera points out: The death penalty is exemplary, but not in the naive sense of the word put forth by its supporters; it is exemplary because it teaches the spilling of blood, and in this same sense, the erudite criminologist quotes Bernard Shaw: Murder and capital punishment are not opposites that cancel one another, but similars [sic] that breed their kind. The death penalty, says Quiroz Cuarn, is not a deterrent and it has been shown that the countries where it is most often used have the highest crime rates, and that crime increases in the countries that institute or preserve it. We can observe with concern that the second paragraph of Article 14 of the Constitution preserves the possibility of applying the death penalty as a sentence in Mexico: No person shall be deprived of life, liberty, property, possessions or rights without a trial by a duly-created court in which the essential formalities of procedure are observed and in accordance with laws enacted prior to the act.

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25

From this, we can deduce, then, the possibility of judicial homicide ironically respecting the essential rigorous formalities of procedure. Essential characteristics of capital punishment are to be destructive, in radically and immediately eliminating human existence, through which correction, reeducation and social rehabilitation of the convict is rejected; irreparable, with regard to its application, in the not-unlikely case that it is unjust, it prevents any subsequent reparation; and rigid, in that it cannot be adjusted, nor limited nor divided. For all these reasons it is inconsistent with the humanist tradition that characterizes Mexico as a nation to continue to preserve, even in a latent way, such a savage, primitive punishment, which as early as 1856 was harshly questioned by visionaries of humanism, who were already in those early times pointing out what in our days unfortunately some still attempt to criticize, not through reason but out of mere utilitarianism, and we quote the speech delivered in the August 21, 1856 session and with what right can society impose the death penalty? It is unquestionable that in the hypothesis of the social contract, the hypothesis that is the foundation of the democratic system, the individual has not been able to give up that which he himself cannot take. A man cannot take the life of another nor take his own life, much less can society have rights that man himself does not have. As we know, Article 22 of our Constitution authorizes the legislature to regulate the death penalty and, although this has not occurred in practice, the mere possibility is risky; proof of this is that an initiative for regulating the ultimate punishment was already presented in the last session. The aforementioned article provides that
[p]unishment by mutilation and infamy, branding, flogging, beating with sticks, torture of any kind, excessive fines, confiscation of property and any other unusual or extreme penalties are prohibited. Capital punishment for political offenses is likewise prohibited; as regards other offenses, it can only be imposed for high treason committed during a foreign war, parricide, murder that is treacherous, premeditated or committed for profit, arson, abduction, highway robbery, piracy and grave military offenses.

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Article 18 of the same code provides that the penal system is organized on the basis of labor, vocational training and education as a means of social rehabilitation of the offender; that is, the penal doctrine that inspires this article is not retributionist, but Article 22 contradicts it, giving the penalty, in its last paragraph, an even vengeful nature, because of which we propose the repeal of that fourth paragraph.
Likewise the first paragraph should be added to so that capital punishment is expressly prohibited; we must also point out that the article currently in effect establishes the prohibition of transcendental punishment and therefore upon expressly prohibiting the death penalty it is given greater consistency by virtue of the fact that, according to the doctrine, the death penalty is transcendental since as Dr. Manzanera points out . . . the person executed ceases suffering and the suffering, stigmatization and pain of the friends and relatives who loved him begins.

One of the most important points is the harm to the family, through which we see that the legal theory of the personal nature of the penalty in no way solves the essence of the issue and, although the judge may state and emphasize that only the convicted person will be executed, in fact he is issuing a sentence for those left behind. On the international level, the tendency is clearly abolitionist and in the majority of the countries where capital punishment is still in effect, the court usually substitutes life in prison. Within the framework of international law, it is important to mention the Mexico has ratified the 1966 International Covenant on Civil and Political Rights, which provides in its first article:
1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

Subsequently, in 1989, the United Nations drafted the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty, a document which unfortunately has not yet been ratified by Mexico,

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precisely because of the provisions of Article 22 of the Constitution. Its first two articles state:
1. No one within the jurisdiction of a State Party to the present Protocol shall be executed. 2. Each State Party shall take all necessary measures to abolish the death penalty within its jurisdiction.

Finally, we agree with distinguished jurist Ignacio L. Vallarta who, already in the past century proclaimed: The death penalty is ungodly for the condemned who suffers it, immoral for the people who witness it, dangerous for the legislator who decrees it and repugnant for the judge who applies it. Finally, regarding the legitimacy of this punishment, we must state with certainty that the abolitionist tendency is being increasingly and decisively confirmed in the majority of countries, on the one hand as a manifestation of the humanization process of penal and prison law, and on the other as an expression of a more accurate identification as an inhumane penalty contrary to the cultural demands of our time. Today, Beccarias words uttered almost two centuries ago still ring true and current:
What right can man claim to kill his fellow man? Who has said that the sacrifice of individual liberty granted in the social contract includes that of life, the ultimate possession? And if this sacrifice were thusly made, how does this principle reconcile with the one that declares that man is not free to kill himself? He must be so, if he was able to give to another, that is, to society as a whole, that power. Our task as legislators is to be representatives of the nation as a whole; therefore it is our duty to defend the highest interests of the Mexican people and the highest right of the citizen is the right to life. Therefore, based on the aforementioned assumption, we will achieve one of the goals of law, which is precisely respect for human rights.33
33

Sistema de Informacin Legislativa (SIL) Iniciativas <http://sil.gobernacion. gob.mx/Busquedas/Basica/ResultadosBusquedaBasica>.

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It is worth emphasizing that prior to the complete prohibition of the death penalty on December 9, 2005, more than sixty years had passed without the death penalty being applied to a civilian in Mexico.34 Since then, the history of capital punishment in the country was that of its continuous abolition in the different states that had included it in their legislation. The experience of the state of Oaxacawhere the death penalty was used more than in any other state of the Federationshows the dangers of maintaining this penalty as long as the vice of impunity persists in the country. In addition, it can be stated that the death penalty did not reduce crime, but in fact multiplied it. Capital punishment disappeared for the Federal District in its 1929 Penal Code. The state of Sonorathe last federative entity to use the penaltypublished its new amended Penal Code in 1965. In the constitutional sphere it is worth pointing out that as early as 1993, the National Human Rights Commission had sent an initiative to the National Congress to eliminate the death penalty in the current Constitution. Given all of the foregoing, it can be stated that there already existed a Mexican humanist, of courseaspiration toward abolitionism.35 The following chart presents a chronological review of all the initiatives presented in the Chamber of Deputies with regard to the death penalty (1998-2005). In the Senate, on the other hand, in Sessions LVII, LVIII and LIX, different reform initiatives were presented regarding Articles 14 and 22 of the Political Constitution, which gave rise to the draft decree ruling through which the Senate reformed Articles 14 and 22 of the Political Constitution. Finally, in the session of the Chamber of Deputies, the reason for abolishing the death penalty was expressed with sufficient reason:
If we understand the primary goal of the penalty as reestablishing the external order in society, and additionally we add to it four fundamental characteristics: exemplary, deterrent,
34

The last execution of a civilian occurred in 1937 according to Amnesty International records. 35 Agustn Basave Fernndez del Valle, Meditacin sobre la pena de muerte (Mexico, Comisin Estatal de Derechos Humanos de Nuevo Len-FCE, 1997) 98.

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FIGURE 5.36 INITIATIVES PRESENTED IN THE CHAMBER OF DEPUTIES FOR THE ABOLITION OF THE DEATH PENALTY Date Session Deputy or Congress that presented initiative Benito Mirn Lince Congress of the State of Nuevo Len Mart Batres Guadarrama Silvia Amrica Lpez Escoffi ngel Artemio Meixuiero Gonzlez Mart Batres Guadarrama Abraham Bagdadi Estrella Francisco Javier Valdez de Anda Alfonso Rodrguez Ochoa Jess Martnez lvarez Party Constitutional article to be amended 22 14 and 22 22 14 and 22 22 22 14 and 22 14 and 22 14 and 22 22

10/22/1998 10/22/1999 2/13/2002 3/26/2002 8/21/2002 4/14/2003 11/13/ 2003 11/11/2003 10/21/2004 2/22/2005

LVII LVII LVIII LVIII LVIII LVIII LIX LIX LIX LIX

PRD PRD PAN PRI PRD PRD PAN PRI Partido Convergencia

corrective and just, the death penalty does not meet any of those characteristics.37

Finally, worthy of note is another legal factor that had decisive influence on the disappearance of the death penalty in Mexico; that was the signing of the Rome Statute in 2003. In this way, Mexico
36 37

Sistema de Informacin Legislativa, Archivos Documentos, op. cit. Ibidem.

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recognized the jurisdiction of the International Criminal Court. The Rome Statute was not ratified by the Senate until October 28, 2005, one month before Congress amended Articles 14 and 22 of the Constitution. Upon recognizing the jurisdiction of the International Criminal Court, in whose Status the death penalty is prohibited, it was necessary to establish consistency between an international treaty and the Political Constitution of the Mexican United States. As a high-ranking official in the Foreign Office pointed out:
the Rome Statute established the obligation for the States Parties to categorize in their national laws three crimes: war crimes, crimes against humanity and genocide. This is a magnificent opportunity for the Mexican State to review its substantive federal criminal law, for the purpose of updating it to the categories of crimes established in the Statute. In this way, it could be said that our work concentrates on one part of a procedural nature and another of a substantive nature. It is indispensable to have that legislation in order to be able to cooperate with the Court; on the contrary, our authorities would be prevented from dealing with any request that the Criminal Court would send to us.38

THE DEATH PENALTY DEBATE As was indicated at the beginning of this chapter, the death penalty is a very controversial topic that gives rise to radical positions. Those situated at both extremes of the spectrum of opinion, for or against, often invoke the moral or divine legitimacy involved in the death penalty: the right to life of any human being, on the one hand, and the right of humanity that heinous crimes be punished in kind, on the other. It has even been said that religions themselves forbid or promote capital punishment. It is well known, for example, that the Koran allows the death penalty, and this has been the justification for its use by Muslim governments. In another example, despite the fact that some isolated passages from the Bible
38

Secretara de Relaciones Exteriores, Boletn Instituto Matas Romero <http://portal.sre.gob.mx/boletinimr/popups/articleswindow.php?id=2154>.

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have been used to legitimize the death penalty, nearly all Christian religious groups consider executions to be immoral acts. The central themes of the debate, however, as we will see below, are based not on the moral legitimacy of this penalty but rather on the question of whether or not it is a just, appropriate punishment. Therefore, in dealing with the arguments for and against the death penalty, they cannot be presented in isolation. That is, the claims of one group are always contrasted with those presented by the other, seeking to demonstrate that they are right. Therefore, in this section we first present the arguments against and, later, the arguments for the death penalty, but, as will be observed, some of the elements presented will be repeated, but from each viewpoints own particular vision.
ARGUMENTS AGAINST THE DEATH PENALTY

Those who are against the death penalty argue that it is not a just punishment. From my point of view, a just punishment should serve a legitimate purpose, utilizing appropriate means. Presently there are different goals that would justify the use of the death penalty: 1. Deterrence (influencing a persons decision not to commit the crime), 2. Rehabilitation (reforming the criminal), 3. Restitution (compensating the victims), 4. Incapacitation (protecting society by incapacitating he criminal so he cannot commit the crime), and 5. Retribution (take revenge on the perpetrator). In attempting to refute these justifications, abolitionists analyze each one of these, to evaluate their feasibility, concluding that the only one that might possibly occur is retribution.39 1. Deterrence. It is true that once a prisoner is executed, he, specifically, no longer represents a danger to society. However, perhaps the application of this measure is not necessary. Some scholars have demonstrated that prisoners on death row are less prone than others to reoffend in homicide.40 In fact, the result of an execution is at times the op39

Cathleen Burnett, Justice Denied: Clemency Appeals in Death Penalty Cases (Boston, Northeastern UP , 2002) 4. 40 Marquart and Sorensen, 1989.

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RICARDO AMPUDIA posite of deterrence. Observing the increase in violent crime following an execution, certain researchers41 conclude that when the State applies the death penalty, instead of people receiving the message that killing is bad, they understand that it is acceptable to react violently when someone harms us: this is known as brutalization.42 In conclusion, all the scientific studies done to prove that the death penalty stops crime have been unable to demonstrate this fact. For example, the excellent, respected studies by Thorsten Sellin, conducted in 1862, 1967 and 1980, concluded that the death penalty is not a factor that prevents people from committing crimes. 2. Rehabilitation. Although some criminals are rehabilitated in prison, this change in their conduct has never saved them from the death penalty, as these criminals are executed for their prior behaviorthe commission of the crimeand not for the type of person they areor have becomeat the time of their execution. In addition, there is the horrific fact, pointed out by various studies, that throughout the twentieth century, at least four hundred innocent people were jailed for crimes they did not commit. Of those four hundred, twenty-three were executed. The erroneous execution of an innocent person is an injustice that can never be corrected.43 This point will be analyzed in depth in the cases of Mexican defendants in a later chapter. 3. Restitution. There is no assurance that executions will compensate victims for their loss. The families of murder victims suffer severe trauma and a loss that no one should minimize. For this reason, some scholars are of the opinion that victims families and the community at large need executions to do justice. At times, however, the executions do not help these people to heal their wounds nor do they end their suffering; the long period of time preceding the executions prolongs the agony of these families. In addi-

41 42

Bowers and Pierce, 1980. Cochran, Chamblin and Seth, 1994; Thomson, 1997; Thomson, 1999. 43 Death Penalty Focus of California: Myths and Facts <http://www.deathpenalty.org/ index.php?pid+reasons>.

Mexicans on Death Row tion, increasingly, these families explain that the death penalty and executions deny them the opportunity to achieve reconciliation and forgiveness. In that sense, the death penalty and the execution process victimize them again by keeping their pain and anger alive. These families would benefit more if the funds now used for executions were reallocated to the provision of psychological counseling and other types of assistance. 4. Incapacitation: There are alternate methods for keeping society safe from violent crime. Presently, for example, every U.S. state has the option of life in prison without the possibility of parole, or the so-called hard fifty (a fifty-year sentence that keeps prisoners locked up for life).44 In this sense, it is possible to protect society from violent criminals through procedures that are less costly than the death penalty. The death penalty costs $1.5 million more than keeping someone imprisoned for life without the possibility of parole. 5. Retribution. Since none of the other goals of the death penalty is met, only those of retribution or revenge truly describe what is being accomplished by imposing this penalty.

33

The abolitionists argue, too, that in addition to not fulfilling legitimate purposes, the death penalty is a danger to society. In the first place, the randomness of the current policymainly in the United Statesthe quality of the legal defense and the jurisdiction where the crime is committedspecifically in which U.S. state it occurs and what law is applied, are elements that increasingly determine whether it is a death penalty case, more than the actual facts of the crime. The death penalty is, therefore, a lethal lottery. For example, of the 22,000 homicides committed per year in the United States, only 300 people are sentenced to death.45 Race also definitely influences the decision of who should be sentenced to death. In 1990, a report by the General Accounting Office concluded, in 80 percent of (reviewed) studies done, it was
43

Death Penalty Focus of California: Myths and Facts <http://www.deathpenalty.org/ index.php?pid+reasons>. 44 Cathleen Burnett, loc. cit. 45 Death Penalty Focus of California: Myths and Facts, loc. cit.

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found that the race of the victim influenced the probability of being sentenced for first-degree murder or being sentenced to death. For example, those who murdered white people had a greater likelihood of being condemned to death than those who had murdered black people.46 As an additional argument, abolitionists refer to the fact that the majority of the countries of Western Europe and North, Central and South Americaseventy-nine countries in allhave abandoned capital punishment. On the contrary, the United States is in the same situation as Iraq, Iran and China, as one of the principal defenders and users of the death penalty. In other words, abolitionists argue the generalized tendency toward abolition on the part of civilized countries suggests the appropriateness of abolition.
ARGUMENTS FOR THE DEATH PENALTY

The arguments for the death penalty can also be set forth in contrast to the arguments against it. Let us remember that the justifications refuted above are deterrence, rehabilitation, restitution, incapacitation and retribution. When evaluating the usefulness of the death penalty, however, it is also possible to have as a guide the goals or characteristics of any penal sanction, to assess whether the death penalty fully meets them. Therefore, any penal sanction must be:47 1. Deterrent (because it seeks to prevent crime through fear that it will be applied), 2. Exemplary (because it should serve as an example to others and not only to the criminal), 3. Corrective (because it should rehabilitate the criminal for life in society), 4. Eliminatory (because it is temporary when the criminal is corrected, and perpetual when the criminal is incorrigible), and 5. Just (because the penalty is a reflection of justice). For retentionists, the death penalty fulfills the characteristics of a penal sanction, and therefore its use is completely justified. There
46 47

Loc. cit. Listed in Vctor Hugo Resendes, op. cit. 47.

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is, however, a great debate between abolitionists and retentionists regarding these characteristics, which is presented here: 1. The death penalty as a deterrent and as an exemplary measure. Abolitionists argue that it has not been proven that executions persuade people not to commit crimes. Authors who support the death penalty, such as Mexican penalist Ignacio Villalobos,48 point out that the goal of this penalty is not to deter criminals, but to eliminate the most dangerous. They also indicate that several countries have reinstated capital punishment after having abolished it, because they have realized its usefulness. Villalobos also expresses opposition to public executions, pointing out that publicity and misinterpretation of the facts encourage admiration and, in certain cases, compassion toward the criminals. 2. The death penalty as a corrective and eliminatory measure. Abolitionists argue that the death penalty does not rehabilitate the criminal since, in the first place, it is not applied with justice and equity and, in the second place, once the condemned is killed, no chance of rehabilitation remains. In this regard, Villalobos agrees that capital punishment is not a corrective measure, and he again uses the argument that the goal of the penalty is not to correct the incorrigible, but to eliminate the extreme cases. There it is flexible, since there will be cases in which the application of the penalty will be necessary and others in which it will not. 3. The death penalty as a just measure. Abolitionists believe that the death penalty is not a just measure, based on two arguments: the theological one, based on the Biblical thou shalt not kill, which condemns the States taking of a life as against Gods will; and the philosophical one, based on the isunaturalist idea that life is a natural right that no one should take from anyone else, and that therefore the death penalty is contrary to the natural order of life. On the other hand, those who favor the death penalty say that, despite the fact that no one has given humans the right to take the life of a fellow human being, a persons life is inviolable in
48

Ignacio Villalobos, op. cit., 534-560.

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RICARDO AMPUDIA any area of individual relationships, and as long as there is no cause that would justify an exception, the State shall take responsibility for protecting and not infringing upon the inherent rights of a human being.

In addition to the foregoing arguments, there are other issues in the debate between abolitionists and retentionists. These are: 1. Is the death penalty authorized by the social contract? The abolitionists refer to the fact that during the humanist era, Beccaria49 stated that the death penalty must be prohibited because it is unjust; the social contract does not authorize it, given that man cannot give away the right to be deprived of life, about which he cannot decide, because it does not belong to him. For their part, the retentionists say that rules of conduct are achieved not through timidity, uncertainty and weakness but instead through education supported by sanctions that establish vigorous disapproval of crime. Therefore, when the survival of the criminal may cause instability for the safety of the society in general, death is the only way to stop further crime.50 2. Is the death penalty a necessary measure? Abolitionists are of the opinion that it is unnecessary to kill a human being, that it is better and more useful to keep him alive and put him to work, but separate from society. Retentionists believe that we must take into consideration that the behavior of one criminal can affect that of the rest of the prisoners, thus making the death penalty the only method for eliminating further crimes. 3. Is the death penalty an irreversible measure? Abolitionists seek to highlight judicial errors, where it has been proven
49

The humanitarian tendency took shape with Csar Bonnesana, Marquis of Beccaria, in his work Dei delitti e delle penne (On Crime and Punishment), in which he not only joins in criticizing the systems employed up until that time, but also raises and constructs a creative proposition of new concepts and practices; he argues and demonstrates the reasons for excluding unnecessary cruelty; he recommends a theory regarding the dangerousness of the criminal; and he demonstrates the urgency of a law of crimes and punishment, to the extent of proscribing legal interpretation. 50 Vctor Hugo Resendes, op. cit., 47.

Mexicans on Death Row that their damage has been permanent. Despite the existence of possible judicial errors in applying the death penalty, in Villaloboss opinion, these cases are few and should be gradually neutralized. In this sense, this author believes that the exception does not prove the rule, and that the consequences of other penalties, such as imprisonment of an innocent detainee, are also irreparable. 4. Is the death penalty a cruel, inhuman measure? Those who favor the death penalty at some time have had criminal instincts or have been willing to commit some act that threatens the life of a human being. In this sense, Villalobos points to Robespierre51 as a clear example of the criminal behavior that later attempts to make amends by abolishing the death penalty. In turn, Villalobos uses Romantic thought as a relevant factor in favor of criminals, thus forgetting the crime previously committed and the suffering caused to the victimsVctor Hugos letter to Jurez asking for clemency for Maximiliano is a very obvious example. Finally, Villalobos feels that the application of the punishment will be granted in those cases in which there is a serious danger to society and in which the subject is incorrigible and extremely evil, thus highlighting its inhuman nature.52

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INTERNATIONAL ORGANIZATIONS AND LAWS AGAINST THE DEATH PENALTY

Multilateral and regional international organizations, as well as non-governmental organizations (NGOs), play an important role in contemporary international life. Although they cannot make binding decisionssince the former are not supranational organizations and the latter are not subjects of international lawthey exercise significant influence on the international scene. In the first place, they serve as discussion forums where international actors can debate and negotiate. In the second place, they promote the develop51

An attorney and judge at the Arras Tribunal, a deputy who, despite having carried out historic slaughters of Girondists, enemies and all kinds of citizens, proposed the abolition of the death penalty. He died by the guillotine. 52 Vctor Hugo Resendes, op. cit., 60.

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ment of international law through declarations and accords, whether regional or binational. Finally, they can limit the conduct of States in specific situations, by mobilizing public opinion. With regard to the death penalty, these organizations have served to broaden the vision, both of States and of public opinion in general, regarding this topic, through discussion forums, meetings of the actors involved and studies carried out by experts. Likewise, they have contributed to international death penalty law, especially with regard to its abolition. Among these organizations, in the sphere of government, particularly noteworthy is the work done by the United Nations (UN)and the organizations that are part of its system, and in the NGO area, mainly Amnesty International. The UN has served as an excellent forum on the subject of the death penalty, where the Member States can express their concern about the issue of the death penalty. One expression of the foregoing is Resolution 1396 (XIV), of November 20, 1959, through which the General Assembly recommended that the Economic and Social Council undertake a study on capital punishment. The result was the reports of 1962, 1967 and 1973, which expressed world concern for safeguarding and guaranteeing the protection of the rights of those condemned to death, defining uses and trends in the application of this penalty.53 In Resolution 1745 LIV (May 16, 1973), the Secretary-General asks the States to present quinquennial reports on capital punishment and the application of safeguards guaranteeing protection of the rights of those facing the death penalty. In 1995, the Council reiterated the tenor of the preceding resolution and asked the SecretaryGeneral to prepare another quinquennial report for the period 1999-2003. The report was presented to the Council in 2005 and to the Commission on Criminal Justice and Crime and later to the Commission on Human Rightswhich is now a council. This report reveals a clear trend toward abolition and restriction of the use of capital punishment in most countries. It also shows that much remains to be done in the implementation of the Safeguards Guaranteeing Protection of the Rights of Those Facing the
53

Compendium of United Nations Standards and Norms in Crime Prevention and Criminal Justice (New York, United Nations, 1992).

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Death Penalty in those countries that retain it. The report is based on data provided by Member States, non-governmental organizations, specialized UN organizations and other sources. The report sets forth four categories of States: 1. countries that are abolitionist as to all crimes, both in peacetime and wartime; 2. countries that are abolitionist as to ordinary crimes; 3. countries that retained the death penalty in their law, divided into those which, despite the death penaltys existence within their law, have not used it for at least ten years; 4. countries and territories where executions have been carried out in the ten years preceding 1999. According to the January 2004 report, of the fifty-two responses, thirty-three countries had been abolitionist since 1999: Australia, Austria, Azerbaijan, Cambodia, Canada, Colombia, Costa Rica, Croatia, Denmark, Finland, Germany, Hungary, Ireland, Italy, Liechtenstein, Lithuania, Mauricio, Monaco, Mozambique, Namibia, Netherlands, New Zealand, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Rumania, South Africa, Sweden, Switzerland and the United Kingdom of Great Britain and Northern Ireland. Responses were also received from five countries that, as of January 1, 1999, were abolitionist only with regard to ordinary crimes: Argentina, El Salvador, Greece, Malta and Mexico. Five responses were received from countries that were retentionist, but were de facto abolitionist: Albania, which had established an official moratorium on executions in 1996; Latvia, which had signaled its intention to abolish the death penalty by establishing a moratorium in 1995 and signing, in 1988, Protocol No. 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms of the Council of Europe regarding the abolition of the death penalty; the Philippines, where the most recent execution had taken place in 1976; Senegal, which responded only that it had abolished capital punishment on December 10, 2004; and Turkey, where the most recent execution had taken place in 1984. Only eight of the seventy-nine countries that were retentionist at the beginning of 1999 responded to the survey: Bahrain, Egypt, Japan, Morocco, Pakistan, Thailand, Trinidad and Tobago, and the Ukraine. Three of these, Egypt, Thailand and Pakistan, filled out

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the portion of the questionnaire regarding safeguards, and did not answer the portion that dealt with the crimes for which the death penalty could be, or had been, applied, or the number of executions carried out. On the other hand, the situation regarding the death penalty in fifty-nine of the seventy-nine countries that were retentionist in early 1999 had not changed by the end of 2003. Two of these resumed executions in 2004: India and Lebanon. Other countries, such as Nigeria, the Republic of Korea, Sierra Leone and Zambia, seem to be leaning toward an abolitionist position. In Iraq, the Coalition Provisional Authority suspended the death penalty in March of 2003, but the provisional government reinstated it in August of 2004 for certain cases, such as murder, drug trafficking, kidnapping and threats to national security. Consequently, only forty-three of the countries and territories that have continued to be retentionist carried out executions during the period 1999-2003. In addition, some of the countries tending toward abolitionism, such as the United States, Belarus, Taiwan and Tajikistan, reduced their executions. It is worth quoting the conclusion the aforementioned report reached about the death penalty as of the end of 2003:
The rate at which countries have continued to become abolitionist has remained steady, although it has been more modest than the rate achieved during the previous ten years, a period in which thirty-nine countries (an average of almost four per year) abolished capital punishment: a rate of change that in the reports of the fifth and sixth surveys was described as quite notable. In comparison, twelve countries abolished capital punishment during the period 1999-2003 (an average of barely two per year), eight of them completely and four for common crimes. However, no abolitionist country reinstated the death penalty during the period 1999-2003, in comparison with four countries and two U.S. states that did so in the previous fiveyear period. Similarly, although three countries that had been considered de facto abolitionists resumed executions, this number is much less than the nine who did so between 1994 and 1998. An even more significant fact is that the number of de facto abolitionist countries has increased considerably, and that

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even among retentionist countries, only forty-three have carried out judicial executions during this entire five-year period. [. . .] Only a handful of these countries carried out a large number of executions. An updated list of abolitionist and retentionist countries is Attachment 1 to this report.

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Regarding use of the death penalty:

The general conclusion is that there is evidence of a decline in executions by retentionist states, and that a substantial proportion of them use executions rarely. Even in the few countries that carried out the majority of judicial executions, there are indications that the practice has diminished.

On the other hand, and following the aforementioned report, it is necessary to note that in 2005:
The Human Rights Commission has continued to adopt annual resolutions in which it calls on all States that have not yet abolished the death penalty to consider the possibility of establishing a moratorium on executions, with the ultimate goal being total abolition of the death penalty. In those resolutions, the States that are parties to the Universal Covenant on Civil and Political Rights (General Assembly Resolution 2200 A (XXI) ) that have not yet done so are asked to consider the possibility of joining or ratifying the Second Optional Protocol of the Covenant (Assembly Resolution 44/128), with the aim of abolishing the death penalty, and all retentionist states are asked to apply the Safeguards Guaranteeing the Rights of Those Facing the Death Penalty, and to make available to the public information regarding imposition of the death penalty.

The report also refers to the Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty, which describe and specify the acts carried out by States in this regard. The Safeguards refer to: first, nonviolent financial crimes or nonviolent religious practices or expressions of conscience; second, the execution of persons sentenced to the death penalty prior to its abolition and as a third safeguard, persons below eighteen years of age

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at the time of the commission of the crime shall not be sentenced to death, nor shall the death sentence be carried out on pregnant women, or on new mothers, or on persons who have become insane. The fourth safeguard refers to ensuring that capital punishment is imposed only when the guilt of the person charged is based upon clear and convincing evidence leaving no room for an alternative explanation of the facts. The fifth safeguard refers to the procedures for a fair trial by a competent court, including the right to appropriate legal assistance at all stages of the proceedings (Avena case). The sixth refers to the right to appeal a death sentence, the seventh to the right to seek a pardon or commutation of the sentence and the eighth guarantees that no person shall be executed pending any appeal or other recourse procedure or other proceeding relating to pardon or commutation of the sentence. On the other hand, let us remember that with regard to important international instruments, the UN played a leading role in authoring one of the fundamental declarations that currently govern international conduct in this area. The Universal Declaration of Human Rights, signed in Paris on December 10, 1948, recognizes, in its third article, the right of every individual to life, liberty and the security of person.54 Unfortunately, the Declaration cannot be considered an explicit prohibition of the death penalty, since it is not a code of conduct adopted by all the worlds nations, nor can they be forced to follow it. Seeking a solution to the fact that the Universal Declaration of Human Rights is not binding in this area, another document arose from UN Headquarters: The Universal Covenant on Civil and Political Rights, adopted December 16, 1966, which took effect March 23, 1976. In Article 6.1, it is acknowledged, every human being has the inherent right to life. The precept, however, establishes an exception, when it states that, although this right shall be protected by law; [. . .] no one shall be arbitrarily deprived of life.55 That is, there is authorization to deprive a person of life in a nonarbitrary way. This is an exception to the rule established by international law. Likewise, the first paragraph of Article 1 of the Universal Covenant on Civil and Political Rights mentions: Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its ju-

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risdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. That is, on the one hand, the States that are parties to the Covenant agree to limitations on the death penalty but, on the other hand, arbitrarily depriving a person of life is a vague legal concept.56 The Second Optional Protocol to the Universal Covenant on Civil and Political Rights was signed later. Its objective is the abolition of the death penalty. It was adopted by the UN General Assembly in 1989, and it urges the total abolition of the death penalty, although it allows States to preserve it in wartime, as long as this clause is stipulated at the time of ratification of or accession to the Protocol. More simply put, the UN did not accept capital punishment, but its efforts tend toward it being applied with strict adherence to the sovereignty and internal legislation based on law and always respecting due process and the rights of the accusedbut unfortunately, as we will endeavor to show throughout this analysis, executions are due more to causes that have nothing to do with the application of justice but instead with conduct such as racism, xenophobia and political goals. There are other international and regional treaties that are important to our analysis, as they reveal an evolution in international law, showing a trend toward the partial abolition of the death penalty more than being limited solely to its legislation. First is the European Convention on Human Rights, passed by the Committee of Ministers of the Council of Europe on November 4, 1950, which took effect on September 3, 1953. It sets forth in its Article 2 regarding the Right to Life the following:
[first paragraph] Everyones right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. [Sec54 55

Resolution 217(III) of the UN General Assembly, December 10, 1948. Compendium of United Nations Standards and Norms in Crime Prevention and Criminal Justice (New York, United Nations, 1992). 56 Ana Salado Osuna, La pena de muerte en derecho internacional: una exepcin al derecho a la vida (Mexico, Tecnos, 1999) 40.

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ond paragraph] Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: (a) in defense of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection. The goal of these exceptions is the defense of a person who has been unlawfully attacked, or the enforcement of the law, but the goal of the action cannot be to cause death. If the exceptions to the rule allowed death, they would leave the right to life devoid of content, since it would be permitting death outside of any judicial proceeding.57

Subsequently, the Sixth Protocol to the European Convention on the Protection of Human Rights and Fundamental Freedoms was passed; it dealt with the abolition of the death penalty. It was adopted by the Council of Europe in 1982.58 This Protocol, which is binding on the parties, urges the abolition of the death penalty in peacetime. It declares that the participating States have the right to preserve the death penalty for crimes in times of war or threat of imminent war. Thus, we see that in the European system, the death penalty is proscribed, a necessary condition for a State to join the Union.59 For example, this was one of the main obstacles to Turkey joining the European Union.60 On November 22, 1969, the Inter-American Specialized Conference adopted the American Convention on Human Rights, which took effect July 18, 1978. In its Article 4 regarding the right to life, it states:
1. Every person has the right to have his life respected. This right shall be protected by law and, in general, from the mo57 58

Ibid., 41. This is one of the 11 additional Protocols to the European Convention on Human Rights approved by the Council of Europe on November 4, 1950 in Strasburg. 59 Hermilo Lpez-Bassols, Derecho internacional pblico contemporneo e instrumentos bsicos, 2nd Ed. (Mexico, Porra, 2003) 273. 60 Currently, any State that preserves the death penalty in its Constitution/constitution cannot be a member of the Union (European ConstitutionTreaty of Rome, October 29, 2004).

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ment of conception. No one shall be arbitrarily deprived of his life. 2. In countries that have not abolished the death penalty, it may be imposed only for the most serious crimes and pursuant to a final judgment rendered by a competent court and in accordance with a law establishing such punishment, enacted prior to the commission of the crime. The application of such punishment shall not be extended to crimes to which it does not presently apply. 3. The death penalty shall not be reinstated in states that have abolished it. 4. In no case shall capital punishment be inflicted for political offenses or related common crimes. 5. Capital punishment shall not be imposed upon persons who, at the time the crime was committed, were under eighteen years of age or over seventy years of age; nor shall it be applied to pregnant women. 6. Every person condemned to death shall have the right to apply for amnesty, pardon, or commutation of sentence, which may be granted in all cases. Capital punishment shall not be imposed while such a petition is pending decision by the competent authority. The American Convention on Human Rights is the only human rights treaty that expressly requires respect for the right to life of the unborn, as not even the UN Convention on the Rights of the Child deals with this matter.61

45

In addition, in 1990, the Protocol to the American Convention on Human Rights to Abolish the Death Penalty was signed; it was adopted by the General Assembly of the Organization of American States (OAS). It advocates the total abolition of the death penalty, although it allows States to preserve this penalty in wartime, as long as this clause is properly stipulated at the time of ratification of or accession to the Protocol. Another of the international instruments regarding human rights is the African [Banjul] Charter on Human and Peoples Rights. Its Article 4 states:
Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right.
61

Ana Salado Osuna, op. cit., 48.

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The terms employed in the Banjul Charter are less precise than those used in the human rights treaties that preceded it; nevertheless, it seems that the right to life is recognized with the same perspective. [Likewise] the Banjul Charter has the unique characteristic of being the only human rights treaty of a general nature that recognizes civil and political rights and has no derogation clause; it is also the only treaty that remains silent with regard to the death penalty.62

With the modification to the Constitution with regard to the abolition of the death penalty, which was accomplished in 2005, the way was paved for the ratification of the two aforementioned protocols: that of the American Convention on Human Rights regarding the death penalty and the Second Optional Protocol to the Universal Convention on Civil and Political Rights. At the time this book went to press, the ratifications were still pending, despite the legal obstacles in our internal legislation having been removed. It is to be hoped that very soon the constitutional procedure will be followed to make our modification in internal legislation consistent with the treaties regarding the death penalty and their protocols. The Arab Charter on Human Rights, adopted September 15, 1994, is a sui generis case of the limitation of the death penalty, as it states in its Article 5: Everyone has the right to life, liberty and security of person, although it adds: these rights are protected by law. [The Arab Charter on Human Rights] does not state, at least not explicitly, that no one can be arbitrarily deprived of life. The omission seems to be only apparent, in the first place, because according to clause a) of its Article 3, There will be no restriction of any basic human right which is recognized or existent in any state party to this Charter, pursuant to law, treaties or custom. Nor may [these rights] be derogated from under the pretext that they have not been recognized in this Charter, or recognized to a lesser degree.63 The Convention on Human Rights and Fundamental Freedoms, adopted May 26, 1995 by the Commonwealth of Independent States, is, according to Professor Ana Salado Osuna: The last
61 63

Ana Salado Osuna, op. cit., 48. Ibidem.

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human rights treaty of a general nature adopted [. . .]. This treaty recognizes the right to life in its Article 2 in terms similar to those of Article 2 of the European Convention on Human Rights, since, in addition to declaring that the right is protected by law, it establishes in the second sentence of Paragraph One that death will not be intentionally inflicted. It also makes reference to the fact that it will not be considered that death has been inflicted in violation of this article when it results from the use of force solely in such cases of extreme necessity and necessary defense as are provided for in national legislation (paragraph 4).64 Although it is true that the European Convention on Human Rights, the American Convention on Human Rights, the African Charter on Human and Peoples Rights, as well as the Convention on Human Rights and Fundamental Freedoms, do not adopt an explicit position against the death penalty, it is also true that they have as a fundamental task limiting this practice in favor of human integrity. Finally, there is the Rome Statute of the International Criminal Court, adopted in 1998. In it, the death penalty is excluded from the punishments this Court is authorized to impose, even though it has jurisdiction over crimes of extreme gravity (see Art. 77 (1-b)], such as crimes against humanity, including genocide and violations of the laws of armed conflicts. This had already occurred previously, with the founding of the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda, in 1993 and 1994 respectively, when the UN Security Council excluded the death penalty for those crimes, unlike the courts in Nuremberg and Tokyo. These international accords are complemented by the work of international non-governmental organizations that seek to denounce the misuse of the death penalty, although these have as their ultimate goal its total abolition. One of the best known and most controversialsince it has encouraged an active discussion regarding the acceptance or non-acceptance of the death penalty within the international communityis Amnesty International. This organization opposes the death penalty in all cases, without exception. In its opinion, the death penalty is the ultimate de64

Ibid., 42.

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nial of human rights: it is the premeditated, cold-blooded murder of a human being by the State and in the name of justice. It is also, according to the organizations view, the violation of the right to life as proclaimed by the Universal Declaration of Human Rights. In addition, it is the most cruel, inhuman and degrading punishment that exists.65 Noteworthy within Amnesty Internationals work is the international moratorium campaign, begun in 2000 with the slogan No to the death penalty, directed, according to its sponsors, to all who dream of ideals of peace. This campaign is headed by Sister Helen Prejeanwhose main work, used in this study, was brought to the big screen and has the support of Amnesty International and an NGO called Community of Saint Egidio.66 The campaign affirms the need to abolish capital punishment and suspend executions once and for all. It seeks to influence the supporters of this cause in order that their actions not remain isolated and to influence those who lack the same convictions but are invited to join them to lobby for a moratorium on the death penalty. Its ultimate goal is for the U.S. federal government to reexamine its judicial system.67 Because of this campaign, millions of signatures have been gathered from throughout the world, and the number continues to grow. These signatures have reached all governmental leaders, including the Secretary-General of the UN, who on December 18, 2003 accepted a strong declaration against the death penalty and a moratorium petition with 3.2 million signatures. Without a doubt,
65

Amnesty International. La pena de muerte, 11 May 2004 <http://www.amnesty usa.org/spanish/abolicion/qanda_es.html>. 66 The Community of Saint Egidio is an ONG that currently has offices in thirty-five countries and has more than 20,000 volunteers. It was founded in February 1968, led by Andrea Riccardi, who, along with a group of students, founded a lay religious association located in the Saint Egidio convent in Rome, Italy, pushed by the demands of social and political commitment present in the poor neighborhoods of Rome, crowded with refugees, immigrants and Italians from the poor rural areas of the country. The Community was born as an NGO devoted to social projects involving international cooperation and, later, it included diplomatic action, thus becoming also a Foundation for Peace (Isabel Sopranos, Comunidad de San Egidio: del compromise social a la accin diplomtica, 11 May 2004 <http://www. santegidio.org/news/rassegna/00001/20000904_oenege_CAST.htm>. 67 No a la pena de muerte: campaa internacional, May 11, 2004 <http://www.santegidio.org/cast/pdm/index.htm>.

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this initiative has been an international success, since in addition to involving important political figures, it has awakened the interest of an enormous number of people who wish to make an active commitment against capital punishment.68 Along with international NGOs, there are others whose scope of work is on a national level. It is important here to mention the existence of U.S. organizations and groups against the death penalty. Despite the fact that the United States is one of the countries that most often imposes the death penalty, or perhaps as a result of it, there are numerous civil organizations that work on the issue of capital punishment. Most of these organizations are seeking reform of the U.S. judicial system, as they feel that the current legal process is discriminatory, costly and fallible. They also seek to promote victim-offender reconciliation and to protect the legal and civil rights of those sentenced to death. With this goal, they devote themselves mainly to managing and distributing information that broadens the publics knowledge of the death penalty; they prepare legal and statistical documents, conduct surveys and publish reports, pamphlets, books and magazines.69 To summarize, we have been able to observe that the death penalty is not a new phenomenon, unique to our era. What is more recent is the global interest in the subject, as demonstrated by the abolitionist and retentionist arguments that we present here.70 At this point in our analysis, it is possible that the reader may already have formed an opinion about capital punishment. The following chapter, however, will be essential to an understanding of the situation regarding this penalty in the country with which this work is concerned: the United States.

68

The Moratorium Campaign, 11 May 2004 <http://www.moratorium2000.org/ highlights/success.lasso>. 69 For a listing of some of these organizations and a brief description of their main goals and activities, see Appendix 1-C. 70 For a listing of some of the international laws and declarations, government and non-governmental, establishing the right to life and rejecting the death penalty, see Appendix 1-C.

The Death Penalty in the United States

ITHIN THE INTERNATIONAL COMMUNITY, THE United States of America has been a country that has claimed to be a vehement defender of human rights, both inside and outside its national territory. Through history and from my professional experience, however, I have come to realize that there has not been consistency between what this nation promotes and what it practices. The 15,000 criminals that have been convicted and executed in the United States since it became a nation provide the standard for me to explain in this chapter the current situation regarding the death penalty in the United States, from the legislation that supports it, to the way in which it is carried out, and the problems that exist in its application. We begin with a brief description of the legal evolution of the death penalty in this country, emphasizing some of the law on which it has been based and important cases that have modified its application, as well as various facts regarding the reversal of death penalty sentences. We also present the evolution of the position of U.S. public opinion on the topic, the situation regarding the death penalty in the states of the Union and, finally, the U.S. position with respect to the international community. THE LEGAL EVOLUTION OF THE DEATH PENALTY When presenting the legal evolution of the death penalty in the United States, it is appropriate to begin by pointing out the power50

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ful legal influence that Europe, especially the United Kingdom, imprinted upon the United States, and its importance in the evolution of this penalty. One of the first manifestations of this legacy was the weight of religion in governmental affairs. For example, the Puritans judged a convict more harshly over a moral issue than a legal one. Capital punishment has figured in governmental debates in the United States since the countrys beginnings as a nation. From the formulation of the 1787 Constitution, there has been recognition of the autonomy granted by the federal government to the states, to legislate regarding sentences and punishments imposed upon their citizen offenders. Since that time, then, the U.S. legal system has been unusual, given the independence assumed by each state court and the vague constitutional limits imposed upon them by the Supreme Court, especially in matters of this nature. So then, even when we speak of fifty-one different jurisdictions (fifty state jurisdictions and one federal one) in a way subordinate to one federal jurisdiction, the death penalty has been one of the topics whose treatment has been limited almost exclusively to the government of each state, a situation that is important to consider when determining the evolution of capital punishment legislation in this country. So then, the fundamental rightspossessed by citizens and noncitizens residing in the United Statesin any legal proceeding originated in the first ten amendments to the Constitution, better known as the Bill of Rights.1 Below I set forth six of these ten amendments related to the issue of the death penalty (amendments 5-10):
Fifth: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself,
1

The first ten amendments (Bill of Rights) were ratified by the states and on December 15, 1791, they took effect as part of the Constitution (Richard B. Morris (ed.), Encyclopedia of American History, Bicentennial Edition (New York, Harper & Row, 1976) 145.

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nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. Sixth: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense. Seventh: In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law. Eighth: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. Ninth: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. Tenth: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Despite these modifications to the U.S. Constitution, what subsequently surprised their precursors was that the amendments protected the U.S. citizen against the federal government and not against the state government, a situation that at present is a cause of various controversies from the moment when each U.S. state decides to resort to, or not resort to, the death penalty. As has been mentioned, the legal situation of the death penalty has been in constant debate in the United States since independence in 1776. Some argued that the death penalty should be rejected by virtue of the fact that it was a practice inherited from their British ancestors. On the contrary, many conservative politicians justified the utility of capital and corporal punishment as a tool for

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maintaining civic order. Because of this dispute, the behavior of the people was also affected. For example, on numerous occasions, public executions were so disorderly that juries were often unwilling to convict if a verdict of guilty automatically meant the death penalty. Between 1820 and 1840, nearly every state had an antideath penalty movement, but there is no reliable data to indicate whether this was due to the position of the politicians or of society.2 The death penalty in the United States has been characterized by being an application with racist overtones. Since being reinstated in 1976, it has been the object of much criticism because of being applied mainly on racial and/or ethnic minorities such as Hispanics. However, prior to 1970 it was practiced mainly on the black population located in the states of Georgia, New York, Texas, California, North Carolina, Ohio, Florida, South Carolina, Mississippi and Pennsylvania. One of the most important cases during this time period was the criminal trial of Caryl Chessman, which ended with his execution in 1960. This convict was sentenced for the 1933 kidnapping and murder of the son of famous inventor and aviator Charles Lindberg. After this case, the U.S. Congress passed a law making kidnapping a federal crime if the victim is transported across state lines or if a ransom is demanded. At the same time, twenty state legislatures passed similar laws making kidnapping with bodily harm a capital offense.3
2

Eliza Steelwater, Lynching, Legal Execution and Americas Struggle with the Death Penalty: The Hangmans Knot (New York, Westview P , 2003) 58. 3 Chessmans sentence was determined in California under one of the Lindbergh laws, which mandated one of two automatic sentences: the death sentence or life in prison without parole. Several elements contributed to the issuing of the death sentence in this case. In addition to the crime of kidnapping and murder, other crimes committed during his youth were addedsexual assault and robbery carried out in the Los Angeles area. This case has a special characteristic since Chessman waived his right to be defended by a public defender, and chose to defend himself. Despite international support for Chessman (the Vatican and highprofile figures such as the Queen of Belgium, among others, supported a petition prepared by the Brazilian government, which had 2.5 million signatures, with the goal of asking for clemency for Chessman) and the opportunities which at the time allowed him to make public books detailing his case, he was finally taken to the gas chamber on May 2, 1960 (Ibid., 217).

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In 1957, several surveys showed that the U.S. population was divided with regard to the death penalty, with half in favor and half against. By 1960, the year of Chessmans execution, this percentage had not changed much, as 51 percent of the population favored capital punishment. Between 1960 and 1966, different surveys showed high rates of no opinion with regard to the topic. Likewise, in 1966 only 42 percent of the population was in favor of the death penalty, with 47 percent opposing it. During this period, nine states decided to abolish it: Alaska, Hawaii and Delaware in 1958; Oregon in 1964; Iowa, New York, Vermont and West Virginia in 1965; and New Mexico in 1969. That same year, a total of fifteen states either did not impose the death penalty or were de facto abolitionists, with a very limited use of this penalty. In 1984, Massachusetts joined abolitionist states when its supreme court overturned a 1982 bill that had been designed to meet constitutionality requirements as outlined in the Furman decision.4 The case of Furman v. Georgia, in 1972, highlighted a difference in the legality and implementation of the death penalty in the United States.5 The courts decision in that case permitted the de facto suspension of the death penalty at the federal level, since it was held by the justices to be unconstitutional, a cruel, inhuman and arbitrary punishment that violated the 8th Amendment. It was then that the federal government asked the state governments to modify their laws regarding the death penalty for the purpose of imposing certain limitations upon this punishment and resorting to it only for particularly serious crimes. Likewise, they agreed on the need to grant rights, known as appeal rights, to those sentenced to death, in order to prevent arbitrariness in trials and sentences. A year after the decision in Furmans favor, several states revised their death penalty laws with the goal of reducing the number of cases in which this sanction would be applied. In spite of this, in 1976 there was a review of the U.S. Constitution, which, according to Congress and the state legislatures, did
4 5

Ibid., 219. William Henry Furman was an African-American man who suffered from slight mental retardation and was convicted of the murder of William Micke, whom he negligently shot. At the time of the crime, the bullet passed through a closed door, killing the man, causing the greatest controversy with regard to the legality of the application of the death penalty.

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in fact include the possibility of imposing capital punishment, as long as it was carried out fairly. With modifications to the law, the first case of execution by firing squad occurred that same year in the state of Utah.6 Subsequently, in the 1980s, an increase in crime was recorded. This created concern in the U.S. population, which translated into a quest for harsher sanctions and consideration of a return to the death penalty. Politicians and candidates for elected office took advantage of this national concern, politicizing judicial review of death penalty cases. In this way, application of capital punishment served individual interests, not the strengthening of the rule of law.7 A transformation in public opinion regarding the death penalty is noteworthy as well, because despite the fact that the majority of U.S. society historically favored it, in the 1980s and 1990s, the percentage increased considerably. According to a national survey, the percentage of people favoring the death penalty in murder cases went from 67 percent in 1977 to 70 percent in 1986 and to 76 percent in 1991.8 Recent polls, however, show significant changes in U.S. public opinion on the death penalty, again placing at 67 percent, in October 2006, the approval rating for this practice. This is one of the lowest percentages in the last thirty years, although it is
Gary Gilmore was sentenced to death by the U.S. Supreme Court for the murder and robbery of Benny Bushnell, and was executed January 17, 1977. 7 Hernn de J. Ruiz-Bravo, San Diego Justice Journal (USA Western State University) 382. 8 Historically, a majority of U.S. citizens have firmly supported the application of the death penalty in murder cases. At least that has been the conclusion from the responses given to the question: Do you support or oppose the death penalty for murderers? In 1953, polls showed 68 percent in favor; in 1963 62 percent; in 1972, 53 percent; in 1977, 67 percent; in 1986, 70 percent; and in 1991, 76 percent. Only in 1966, when the percentage of citizens supporting the death penalty was just 42 percent did public support sink below 50 percent. (See H. Erkines study of state and national death penalty polls from 1936 to 1969, entitled The Polls Capital Punishment, Public Opinion Quarterly, 1970, No. 34, pp. 290-307; Hugo Bedau, American Attitudes toward the Death Penalty, The Death Penalty in America, pp. 65-92 and Robert M. Bohm, America Death Penalty Opinion, 1936-1986: A Critical Examination of the Gallup Polls, in Robert M. Bohm (ed.), The Death Penalty in America: Current Research, (Cincinnati, Anderson Publishing Co., 1991) 113-145.
6

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higher than in October 2003, when the percentage supporting the death penalty was only 64 percent.9 Regarding the issue of appeals of death sentences and their resolution, it should be noted that until 1996, the majority of reversals of capital punishment sentences in the United States occurred in federal courts, which found errors in the trials, warranting reversal in approximately 40 percent of appeals. However, the situation has changed markedly since the application of the Anti-Terrorism and Effective Death Penalty Act signed by President Clinton on April 24, 1996. This law has allowed the increase in the number of executions, significantly restricting the rights of prisoners in the United States, limiting their rights to file appeals once sentenced and authorizing state courts to punish any constitutional violation related to acts of terrorism or association with terrorism. This restriction was renewed with the adoption of the so-called Patriot Act of 2001 signed by President George W. Bush and passed by the Senate, (The Uniting Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001) with which the categories of terrorist acts and support of terrorism were broadened and the penalties for those crimes increased. Likewise, it allows law enforcement (FBI) access to confidential information within communication networks and devices for the purpose of preventing any indication of terrorism inside or outside the country. This law was further strengthened in 2003 with the passage of the so-called Patriot Act II (Domestic Security Enhancement), which includes the imposition of harsher punishments for any attack against national security and the death penalty for any act of terrorism or support thereof. Of special importance is the fact that this law allows the FBI to carry out investigations outside U.S. territory and provides for the creation of a DNA database of alleged terrorists.10 Now, it is important to learn which U.S. states apply the death penalty. Presently, in thirty-eight U.S. states, this penalty is included
The Gallup Organization: Gallup Poll, Death Penalty 2006 <http://www.galluppoll.com/content/?ci=1606&pg=1>. 10 Domestic Security enhancement, Section by section analysis, The Center of Public Integrity <http://www.publicintegrity.org/docs/PatriotAct/story_01_020703 _doc_1.pdf>.
9

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in the law;11 these are states inhabited by individuals with certain Republican tendencies, many of them high-income people who classify themselves as conservatives. Similarly, they are natives of areas where the death penalty was utilized more frequently. On the contrary, there are only twelve states where the death penalty is not applied today. These are Alaska, Iowa, Massachusetts, Minnesota, Rhode Island, West Virginia, Hawaii, Michigan, North Dakota, Vermont, Wisconsin and the District of Columbia. In five of the states where the death penalty is permitted, however, there have been no executions since 1976. These are Kansas, New Hampshire, New Jersey, New York and South Dakota. Finally, it is important to emphasize the U.S. position on this issue within the international sphere. Speaking of international legitimacy with respect to the death penalty necessarily leads us to mention countries compliance with the various treaties that have been signed over history. In this sense, it is of the utmost importance to emphasize the attention that the United States has paid to the observance of and compliance with those treaties, since the fairness, or lack thereof, of sentences imposed on foreigners residing there, and whether those sentences are in keeping with the standards dictated by international law, has in most cases depended on this. In order to perform this task, I must refer to, because of its legal significance, the Vienna Convention on Consular Relations and its Optional Protocols, signed April 24, 1963, which stands out because of three cases presented before the International Court of Justice for violations of Articles 5 and 36.12 First of all, there is the
They are: 1) Alabama, 2) Florida, 3) Louisiana, 4) New Hampshire, 5) Oregon, 6) Virginia, 7) Arizona, 8) Georgia, 9) Maryland, 10) New Jersey, 11) Pennsylvania, 12) Washington, 13) Arkansas, 14) Idaho, 15) Mississippi, 16) New Mexico, 17) South Carolina 18) Wyoming, 19) California, 20) Illinois, 21) Missouri, 22) NewYork, 23) South Dakota, 24) Colorado, 25) Indiana, 26) Montana, 27) North Carolina, 28) Tennessee, 29) Connecticut, 30) Kansas, 31) Nebraska, 32) Ohio, 33) Texas, 34) Delaware, thirty-five) Kentucky, 36) Nevada, 37) Oklahoma and 38) Utah. 12 This multilateral Treaty grants states the right to provide aid and assistance to their nationals abroad, and to represent them before the authorities of the country where they are located (Art. 5). Likewise, any foreigner who is detained will have the right to contact the consular offices of his country, as under Article 36 of this Convention the authorities having jurisdiction are required to notify detainees of this right, which, in the last three decades, has been flagrantly violated by the U.S. government.
11

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case of Paraguay v. USA, followed by the LaGrand case between the U.S. government and Germany. In the third place, there is the Avena case, a dispute between the U.S. and Mexican governments, which will be analyzed in a later chapter. Similarly, and as with the Vienna Convention, Mexico has signed a number of instruments with twenty-eight countries, with the goal of regulating consular relations and ensuring that detainees are able to exercise their right to contact their consulates in a timely manner.13 Likewise, it has bilateral consular treaties currently signed with almost sixty countries.14 Notable among them is the U.S.-Mexico Consular Convention signed in 1942, in the midst of a world war, surely for purposes of the convenience of our northern neighbor to be able to count on the support of the Mexican government in certain areas during the world war.15 Remember, for
13

These countries are: 1) Algeria 2) China, 3) Costa Rica, 4) Cyprus, 5) Denmark, 6) Ethiopia, 7) France, 8) Germany, 9) Ghana, 10) Iran, 11) Ireland, 12) Israel, 13) Jamaica, 14) Japan, 15) Korea, 16) Malaysia, 17) Oman, 18) Holland, 19) Nicaragua, 20) Nigeria, 21) Pakistan, 22) Sierra Leone, 23) Philippines, 24) Tanzania, 25) Trinidad and Tobago, 26) Uganda, 27) United Kingdom and 28) Vietnam (Hernn de J. Ruiz-Bravo, op. cit., 400). 14 These countries are: 1) Antigua and Barbuda, 2) Bahamas, 3) Bangladesh, 4) Barbados, 5) Belgium, 6) Belize, 7) Brunei, 8) Bulgaria, 9) China, 10) Colombia, 11) Costa Rica, 12) Cuba, 13) Cyprus, 14) Czech Republic, 15) Dominica, 16) Fiji Islands, 17) France, 18) Gambia, 19) Ghana, 20) Greece, 21) Granada, 22) Guyana, 23) Hungary, 24) Ireland, 25) Italy, 26) Jamaica, 27) Japan, 28) Kenya, 29) Korea, 30) Kuwait, 31) Liberia, 32) Malaysia, 33) Malta, 34) Mauricio, 35) New Zealand, 36) Nigeria, 37) Philippines, 38) Poland, 39) Rumania, 40) San Cristbal y Nevis, 41) Santa Luca, 42) San Vicente, 43) Seychelles, 44) Sierra Leone, 45) Singapore, 46) Slovak Republic, 47) Surinam, 48) Sweden, 49) Tanzania, 50) Tonga, 51) Trinidad and Tobago, 52) Tuval, 53) Rusia, 54) United Kingdom, 55) the former Yugoslavia, 56) Zambia and 57) Zimbabwe, loc. cit. 15 The U.S.-Mexico Consular Relations Convention was held for the purpose of defining the duties, rights, privileges, exemptions and immunities of the consular officers of each country within the territory of the other. It is important to note that it grants privileges and immunities, under the principle of mostfavored nation, to both career and honorary consuls. It also covers the issues of immunities, inviolability of files, offices and personal property of consular officers and offices, the functions of protection of the consulates, of nationals as well as national vessels, etc. It is comprised of 14 articles and was signed in Mexico City on August 12, 1942 by Mexican Foreign Minister Ezequiel Padilla and U.S. Ambassador to Mexico George S. Messersmith. It was approved by the Mexican Senate, according to a decree published in the Diario Oficial on February 16, 1943. The Issuance of the ratification documents occurred June 1, 1943 and was published in the Diario Oficial de la Federacin on July 17, 1943 in Tratados ratificados y Convenios Ejecutivos celebrados por Mxico (Mexico, Senate of the Republic, 1972, volume VIII 1938-1942) 763.

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example, that given the scarcity of low-cost manual labor in the United States, the U.S. government signed a number of labor treaties with Mexico known as the Bracero Program.16
THE DEATH PENALTY IN TEXAS

Given the current historical situation of the death penalty in Texas, the specific study of this state is, doubtless, an essential part of any review of the death penalty in the United States. The arbitrary actions that the government of Texas has committed against numerous citizens, residents and foreigners have led to the international community considering it one of the places in the world where the most people are legally executed. Supporting this statement are the execution figures acknowledged by the very government of Texas. For example, although between 1930 and 1970, one or more executions were carried out in twenty-nine U.S. states, no other state in the country compared with the judicial murders perpetrated in Texas. During the aforementioned period, more executions were carried out in Texas than in the next four statesVirginia, Florida, Missouri and Louisiana combined. Additionally, between the resuming of executions in 1977 and the end of 1997, 432 prisoners were executed in all of the United States a third of those executions144took place in Texas. Added to this is the fact that of the seventy-four executions carried out in the United States in 1997, halfthirty-sevenwere in Texas, an unprecedented figure since the previously mentioned reinstatement of the death penalty in 1976.17 From 1997 to 2007, there have been 1069 executions nationally, of which 390 have been carried out in Texas, representing 36.5 percent of total executions. Unfortunately, these statistics reveal only a small part of the conditions experienced there. At each step of the legal process, as we will seek to demonstrate below, the death penalty in Texas is revealed as a succession of clearly improper legal procedures that do
16

The strong demand for Mexican labor, especially in agriculture in the Southwest, had as a consequence that U.S. farmers asked their government to allow the entry of Mexican farmworkers. The Bracero Program began in 1942 and continued, after several stages, until 1963. 17 Pena de muerte, May 8, 2004, loc. cit.

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not follow current international standards and are inadequate for the effective protection of human rights. For example, it has been proven that the death penalty in Texas is applied in a racially discriminatory manner. In this sense, individuals accused of murdering a white person have a greater probability of being sentenced to death than those accused of murdering a black victim. As of late 1997, of the 144 prisoners executed in Texas, 127 (88 percent) had been convicted of murdering a white person. However, more than half of all Texas murder victims were from ethnic minority groups.18 Another distressing fact is the support of public opinion for the death penalty in Texas, as it is constant and frustrates any political effort to provide appropriate free legal aid to individuals convicted of crimes punishable by death. This politicization of capital punishment extends even to the judiciary, since in Texas the judgeships are elected offices. As a result, defendants are generally represented by inexperienced or poorly paid attorneys, increasing the risk that death sentences will disproportionately affect the most underprivileged sectors of society. Recently, laws have been passed that attempt to ensure the appointment and compensation of attorneys to represent convicted prisoners in post-conviction appeals. However, this legislation includes no requirement regarding the appointment of competent counsel, and the courts encounter numerous obstacles in attempting to find sufficient attorneys for all the cases that need them. At any rate, the Texas Court of Criminal Appeals rejects the majority of habeas corpus petitions following a superficial review.19 These undeniable, distressing deficiencies in the legal process applied in the state of Texas in a capital punishment case have been the subject of heated debates both nationally and internationally. Part of the work done by Amnesty International, for example, is a constant struggle to improve the legal representation provided in the trials of those accused of capital crimes in Texas. Among the organizations concerns is the fact that the absence of effective assistance of counsel at trial is further worsened by the lack of de18 19

Loc. cit. Loc. cit.

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termination by the courts of appeal to examine properly the legitimacy and constitutionality of death sentences. The consequences suffered by those sentenced to death in Texas, and particularly by Mexican citizens, are only too obvious, and require the presentation in subsequent chapters of the experiences of Mexicans who have faced the Texas judicial system. DEATH PENALTY AND LEGISLATION CASES In order to understand fully how the death penalty legal process works in the United States, it is necessary to present those cases that are special, in that they generate controversy because they deal with people who are vulnerable to being sentenced to death or to demonstrate the deficiencies of the U.S. legal system. These actors are minors, people with mental disabilities, women and those who have been sentenced because of their race.
MINORS

Fifty years after the Universal Declaration of Human Rights took effect, more than half the nations of the world have prohibited the death penalty in law or in practice. Of the few countries that still preserve it, most adopt international human rights laws limiting capital punishment to adults. Despite that, various nations permit the execution of minors in their legislation or in their legal practice. Executions of minors are few in comparison to the total number of executions carried out worldwide each year. Their significance, however, goes far beyond the simple numerical scale and calls into question the responsibility of some countries with regard to international law and human rights. With regard to the United States, on March 1, 2005, the Supreme Court declared unconstitutional the execution of minors under the age of eighteen, following the issuance of its decision in the case Roper v. Simmons.20 This court decision vacated the sentences of seventy-one minors sentenced to death throughout the country. Prior to this Supreme Court decision, of the thirty-eight jurisdictions that have the death penalty, twenty had established the
20

Death Penalty Information Center: Supreme Court Orders, 29 Mar 2007 <http://www.deathpenaltyinfo.org/article.php?did=248&scid=38#0506>.

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minimum age of eighteen to subject an individual to the death penalty, the federal government being included within these twenty.21 The states of Florida, Georgia, New Hampshire, North Carolina and Texas established seventeen years as the minimum age, and the states of Alabama, Arizona, Arkansas, Delaware, Idaho, Kentucky, Louisiana, Mississippi, Nevada, Oklahoma, Pennsylvania, South Carolina, Utah and Virginia established the minimum age as sixteen years. Between 1985 and 2004, prisoners who were minors when they committed the crimes for which they were convicted have been put on death row in thirteen U.S. states. The analysis of nine executions of juvenile offenders carried out since then, in five statesfive in Texas, the state that conducts the largest number of executions, and one each in South Carolina, Louisiana, Missouri and Georgia, reveals facts that must be emphasized.22 Of the nine, all of those executed were seventeen years old at the time their crimes were committed, five were white, three were black and one was Latino. All were sentenced for aggravated murdersuch as committing a murder during a robbery; double murder; or murder of a white person, a police officer, an elderly nun or a family member. In addition, they had to wait on death row from five to fourteen years before being executed. The background of the cases mentioned hereand of those of the majority of minors sentenced to death in the United States recounts stories of serious emotional, if not material, deprivation child abandonment and abuse, for example. Many of them had shown behavioral problems or had begun to commit crimes from a young ageas early as age six, were frequent consumers of drugs or alcohol and had a low level of intelligence. Some of them suffered from mental illnesses such as psychosis or schizophrenia. During the trials of these minors, circumstances occurred that lead us to conclude that the death sentence could have been avoided. In the first place, there was vitally important information about their cases that was not revealed due to the incompetence or
21

California, Colorado, Connecticut, Illinois, Indiana, Kansas, Maryland, Missouri, Montana, Nebraska, New Jersey, New Mexico, Ohio, Oregon, South Dakota, Tennessee, Washington. 22 For a description of each of the nine cases, see Appendix 2-A.

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inexperience of their attorneys. In the second place, there was demonstrated racial discrimination, given that in the three aforementioned cases of blacks sentenced to death, the juries were comprised solely of whites; notably, in one of the cases three potential jurors, who were black, were stricken. Finally, the petitions for clemency filed by groups and public figuresnoteworthy among them the request for mercy filed by the very religious order of a murdered nunwere not taken into account. Between 1973 and March of 2004, twenty-two minors were executed in the United States, which is equivalent to 2.3 percent of the executions carried out over that time period. Thirteen of the executions occurred in the state of Texas, three in Virginia, two in Oklahoma, one in Louisiana, one in Georgia, one in South Carolina and one in Missouri.23 After this brief description of the current situation of the death penalty with regard to juvenile offenders in the United States, it is important to point out that the application of that penalty to this category of people is prohibited by numerous international instruments. The most important of these are: 1. International Covenant on Civil and Political Rights (ICCPR): In Article 6 (5) the convention states that a sentence of death shall not be imposed for crimes committed by persons below eighteen years of age. 2. Convention on the Rights of the Child (CRC): In Article 37 (a) it states, Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offenses committed by persons below eighteen years of age. 3. American Convention on Human Rights (ACHR): This Convention declares in Article 4 (5) that capital punishment shall not be imposed upon persons who, at the time the crime was committed, were under eighteen years of age. 4. Fourth Geneva Convention of August 12, 1949 regarding the protection of civilians in times of war: In Article 68 it establishes that in any case, the death penalty may not be
23

Victor L. Streib, Death Sentences and Executions for Juvenile Crimes, January 1, 1973December 31, 2004 (Ohio Northern University College of Law, Ohio, 2005) 7; <http://www.law.onu.edu/faculty.streib>.

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RICARDO AMPUDIA pronounced on a protected person who was under eighteen years of age at the time of the offense. 5. 1977 1st Additional Protocol to the 1949 Geneva Conventions (regarding protection of victims of international armed conflicts): In Article 77 (5) it states that [t]he death penalty for an offense related to the armed conflict shall not be executed on persons who had not attained the age of eighteen years at the time the offense was committed. 6. 1977 2nd Additional Protocol to the 1949 Geneva Conventions (regarding protection of victims of armed conflicts that are not international in nature): In Article 6 (4) it states, the death penalty shall not be pronounced on persons who were under the age of eighteen years at the time of the offense. 7. Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty (Resolution 1984/50 of the UN Economic and Social Council, passed May 25, 1984 and ratified by consensus by the UN General Assembly in its Resolution 39/118 on December 14, 1984): This resolution states that the death penalty is not to be imposed for crimes committed by persons below eighteen years of age.

The first six instruments are international accords that bind the signatories with respect to the prohibition of the death penalty against juvenile offenders. It must be made clear that the Fourth Geneva Convention refers particularly to protection of civilians in occupied territories during times of armed conflict. The First Additional Protocol to the Geneva Conventions, for its part, covers international armed conflicts, while the Second Additional Protocol deals with internal armed conflicts. Finally, the Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty24 are not legally binding, although they approved by consensus in the UN General Assembly, an indication that there existed the unanimous commitment among the States that its precepts should be respected.25
24

Passed by the Economic and Social Council in its Resolution 1984/50 on May 25, 1984. Amnesty International <http://www.unhchr.ch/spanish/html/menu3/b/h_ comp41_sp.htm]>. 25 Regarding the legal value of UN resolutions, see Jorge Castaeda, Obras completas. Tomo I: Naciones Unidas (Mexico, SRE-Colmex, 1995) 271-294.

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One of the arguments most frequently used for capital punishment is that its use on criminals prevents others from committing similar crimes. Using this thesis, those who support capital punishment make assertions such as: 1. All human beings reason in the same way. 2. The decision to commit a crime is based on reason, whereby the criminal premeditates the consequences of his actions. 3. Potential criminals recognize that capital punishment exists and that there is a high likelihood that they will be tried and executed if they commit a crime. 4. Potential criminals fear being executed.26 These assertions, however, are not applicable in most cases. To support this conclusion, it is appropriate to point out the characteristics that may define the criminal conduct of an individual. In the first place, a criminal is that person who through action or omission violates the law. In the second place, if we take into account that behavior is based on the way we think and reason, it can be said that perhaps people more prone to committing certain crimes are those who have suffered complicating experiences throughout their lives and who, therefore, might react differently when faced with a certain situation. The Volunteer Orientation Packet published by the Idaho Correctional Department describes the manner of criminal conduct as follows:
Criminals think they have a right to absolute freedom to conduct their lives. The criminal lives isolated from the world. In this subjective, personal world, the criminal has control and the absolute right to his life. From this point of view, any restriction on his liberty is seen as an improper intrusion. So then, when the real world fails to meet his demands and expectations, the criminal takes a defiant attitude. Interpersonal relationships will be dominated by the struggle for power, ir26

Gardner C. Hanks, Against the Death Penalty: Christian and Secular Arguments against Capital Punishment (Scottdale, PA, Ed. Herald P , 1997) 70.

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ritation, and permission to do what they wish regardless of the rules and consequences of their actions; they become domineering beings.27

Certain circumstances or mental states that encourage criminal activity contribute to this attitude of the criminal. These are abuse of alcohol and other drugs, the belief, reinforced by publicity in the media, that violence is something that is natural to the human condition, suicidal tendencies, mental disorders or other types of disabilities that affect a persons behavior, and ones economic and social situation. Over the yearsand with the application of various clinical studiesit has been shown that most criminals consider violence a normal part of life and not an occasional aberration. Many of these criminals have indicated that they were physically or sexually abused when they were children. In order to confirm this, in 1988 a study was done of fourteen juvenile prisoners sentenced to death; it found that twelve of these minors had been physically abused (five of them by a relative).28 For example, we have the story of Robert Alton Harris, the first man executed in California after the Furman decision, which illustrates the previously detailed characteristics. His mother was an alcoholic. He was born three months premature because of the constant beatings his father inflicted upon his mother. As a child, he was punished frequently by his father and strangled to the point of convulsing. On several occasions, his father also threatened to shoot him. As a result of this family history, Harris suffered from fetal alcohol syndrome and an organic brain disorder, which was confirmed by experts.29 It is said that murderers carry out rational decisions when they commit a homicide. This implies that the criminals have full control of their mental faculties when they commit the crime. In this sense, it should be mentioned that it is frequently the abuse of drugs or alcohol and a state of stress that undermine a persons abil27 28

Ibid., 71. Loc. cit. 29 Ibid., 72.

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ity to make decisions based on reason. This abuse distorts an individuals perception of reality; a persons inhibitions decrease and he may come to have a false sense of his own abilities, intensifying feelings of anger or fear, which lead to violence. So, what happens when the subject is not under the influence of these drugs? What motivates his violent behavior? In order to answer these questions, it is necessary to understand two topics that are extremely important to this chapter: mental illness in general and mental retardation in particular. Mental illness is defined as the state in which severelydisordered behavior, thoughts or feelings exist, other than those cases in which the disorder is a result of low intelligence or a brain injury. Mental illness causes a person to perceive and react to the world in a way that is not accepted by society, which creates serious difficulties for interpersonal relationships.30 By definition, a mentally ill person will not react to a situation in the same way that a normal person would. Individuals who suffer from this illness may, for example, think that someone is threatening them or their family and in most cases may react violently against someone they perceive to be an imminent threat. They may also hear voices telling them to kill. On the other hand, in 1992, the American Association on Mental Retardation (AAMR) provided the following definition of this illness:
Mental retardation refers to substantial limitations in present functioning. It is characterized by significantly sub-average intellectual functioning, existing concurrently with related limitations in two or more of the following applicable adaptive skill areas: communication, self-care, home-living, social skills, community use, self-direction, health and safety, functional academics, leisure and work. Mental retardation manifests before age eighteen.31

For its part, the American Heritage Dictionary gives the concept the following definition:
30 31

Ibid., 75 ERIC Clearinghouse on Disabilities and Gifted Education, Retraso mental, 8 May 2004 <http: //ericec.org/digests/e528s.html>. Translators Source: <http://www.vrri.org/Research/Rehabilitation-Review/Volume-10-No.-7-July-1999.html>.

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Subnormal intellectual development as a result of congenital causes, brain injury, or disease and characterized by any of various cognitive deficiencies, including impaired learning, social, and vocational ability. Also called mental deficiency.

Likewise, it defines the concept of mental illness:

Any of various conditions characterized by impairment of an individuals normal cognitive, emotional or behavioral functioning, and caused by social, psychological, biochemical, genetic, or other factors, such as infection or head trauma. Also called emotional illness, mental disease, mental disorder.32

In the United States, nearly 3 percent of the population suffers from mental retardation. However, 10 percent of all men and women on death row suffer from this condition. Paradoxically to this statistic, over time it has been shown that persons suffering from mental retardation are less prone to committing acts of violence, compared to those individuals whose IQ is within normal parameters. Why, then, do so many mentally retarded convicts receive the death penalty?33 The response, basically, is that it is because prisoners who suffer from mental retardation, due to their disability, are more likely to be found guilty of any crime. Mentally retarded people possess specific characteristics that make them particularly susceptible to attacks by law enforcement and to prosecutorial tactics, even when they are very peaceful people.34 In the first place, individuals who suffer from mental retardation are less able to control their impulsive desires. These impulses often lead them to commit crimes of uncontrolled violence or of a
32

The American Heritage Dictionary of the English Language, Fourth Edition (Houghton Mifflin Company, 2009). 33 Gardner C. Hanks, op. cit., 101. 34 In an article by James W. Ellis (later President of the AAMR) and Ruth W. Luckasson, they highlight six characteristics that define the behavior of people suffering from this disability, which could affect their abilities to act appropriately within the criminal justice system. These are: memory and communication problems; impulsiveness; reduced intellectual development; lack of knowledge; denial of their disability; and conflicting stimuli (cited in ibid., 102).

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sexual nature. The lack of intellectual development of persons with mental retardation causes them to interpret events in black and white terms; that is, if something bad is happening at a certain moment, there must be someone to blame. Likewise, their impulsiveness impedes their ability to participate in their own defense. Individuals with mental retardation do not have the ability to communicate adequately in a situation of profound stress, such as an arrest or when exposed to witness observation. In addition, they are not capable of providing coherent responses to law enforcement authorities, because they do not know what to say and frequently refuse to answer questions that are beyond their understanding. Their communication and memory problems cause their testimony to appear suspect. This is because they do not have an effective ability to remember certain details of a specific situation, and they often appear confused when testifying. At times, they may even accept responsibility for the crime:
A defendant with retardation may plead guilty to a crime he did not commit because he believes the blame should be assigned to someone. Similarly, some people with mental retardation will eagerly assume blame to please or curry favor with an accuser.35

Additionally, persons with mental retardation possess a low level of knowledge. Therefore, these individuals are unaware of their basic rights and submit easily when arrested. They often do not realize the need to ask for an attorney or are unaware of the procedure for exercising that right. They are also intimidated by the appearance of persons they perceive as authorities. This becomes a much more overwhelming reality if persons with mental retardation have been confined to a mental institution. Therefore, law enforcement authorities constantly convince mentally retarded people that if they confess to the crime, everything will turn out in a way that benefits them. An example of this is the case of Jerome Bowden, who suffered from mental retardation and was executed in Georgia in 1986who was told by a detec35

Loc. cit.

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tive, if you sign this document, I will try to help you. Bowden signed a prepared statement he had not read. Likewise, recognizing their vulnerability, it is possible that people involved in the process may induce mentally retarded individuals to plead guilty to a crime they did not commit.36 On June 20, 2002, the U.S. Supreme Court declared unconstitutional the execution of mentally retarded or mentally ill people, in the decision issued in the Atkins v. Virginia case, ruling that said practice constitutes a violation of the 8th Amendment to the Constitution prohibiting cruel and unusual punishment. This decision is supported by a broad percentage of U.S. public opinion that categorically rejects the death penalty for mentally retarded individuals. Prior to this decision by the court, in 1989, in Penry v. Lynaugh, the Supreme Court held that the 8th Amendment should not be interpreted as a prohibition against executing persons who suffer from a mental illness. Therefore, prior to the courts decision in Atkins v. Virginia, twenty-seven U.S. states, including Texas, allowed such executions. Eighteen states, however, did not allow the application of this penalty even before 2002. The issue has been at the center of U.S. and international public attention with the recognition by various human rights organizations pointing out that in this country 510 percent of prisoners sentenced to death suffer from serious mental illnesses. For example, it has been reported that at least eleven of the fifty-six prisoners executed in the United States in 1995 were suffering from a mental illness or were mentally deficient. Often the defense attorney does not reveal information regarding the mental deficiencies of his client during trial, so the jury responsible for imposing the death penalty is unaware of these circumstances. In the case of Anthony Joe LaRette, for exampleexecuted in Missouri in November 1995, the jury did not know of his long history of treatment for mental illnesses. The psychiatric examination carried out at the request of the defense did not reveal LaRettes history, and concluded that he did not suffer from any type of mental illness. Another unjust case that occurred in U.S. courts was that of Varnall Weeksexecuted in Alabama on May 12, 1995. He had
36

Loc. cit.

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been diagnosed with a serious mental illness, having suffered from paranoid schizophrenia for several years. The psychologists who testified both for the prosecution and for the defense agreed that Varnall Weeks suffered from constant strange religious hallucinations. At his first trial, held in 1982, no evidence of his mental state was presented and he was found guilty of the murder of Mark Batts. Once found guilty, Weeks waived his right to be sentenced by a jury and asked the judge to sentence him to death. In a resolution dated April 25, 1995, an Alabama judge acknowledged that Weeks was a paranoid schizophrenic who suffered from hallucinations, and therefore declared him insane under the generic dictionary definition of insanity and what the average person on the street would consider insane.37 Nevertheless, the judge determined that the execution could go forward because Weeks was able to answer some questions about his execution, which proved that he was legally competent.38 Due to the moral implications of executing a mentally retarded person, the issue of capital punishment in these cases has been one of the main concerns taken openly by abolitionist positions. However, changing criminal law in the current U.S. political context is a difficult goal to attain.
WOMEN

It is a pattern of behavior of society to state that women are less prone to violence than men; however, in our times women are committing more crimes than in the past. JENNI GAINSBOROUGH, ACLU National Prison Project

The first woman executed by Americans (rather than the British) in the United States was Basheba Spooner in Massachusetts in 1778. She was accused of killing a sergeant in the Royal Navy. She justified the crime by alleging that she had been raped by that man and, as proof, she stated that she was pregnant. Her argument was definitively rejected, however, and she was hanged. When an
37

Definition of crazy: suffering from a mental illness, having lost reason or judgment. 38 Amnesty International, Noticias sobre la pena de muerte en 1995, 8 May 2004 <http://www.derechos.net/amnesty/doc/america/usa1.txt>.

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autopsy was performed, it was confirmed that she was in fact pregnant. The youngest woman executed in the United States was Hannah Ocuish, a Native American hanged in New London, Connecticut on December 20, 1786 for the murder of a child. Ocuish was twelve years old. As a result of various investigations carried out throughout the history of the United States regarding the issue of the death penalty, it is estimated that approximately 566 women have been executed since 1632, 504 of whom were hanged, including six teenagers. This constitutes 2.8 percent of 20,000 total executions. However, if we consider only the period 1900-1999, women represent only .5 percent of 7,867 executions, although they committed 10 percent of murders.39 Since the reinstatement of capital punishment in 1976, eleven women have been executed: nine by lethal injection and two by electrocution. The first was Velma Barfield, in North Carolina, by lethal injection, November 2, 1984. Between 1977 and 2003, 145 women were sentenced to death and as of July 1, 2003, forty-seven were in prison awaiting execution. Executions of women carried out during this period represented 1.22 percent of the total. In the last five-year period, this percentage has increased to 2 percent per year. There are three variables that could explain this phenomenon: a] the quest for female equality, b] an increase in violent crimes committed by women and c] the availability of lethal injection as the most common execution method, as juries and governors find it more practicable to execute women this way.40 Despite the foregoing, in 2003 there were no female executions. In fact, four women were even freed from the death sentence in Illinois when Governor Ryan decided to commute all death sentences in that state. Many states that apply the death penalty have been reluctant to execute women. For example, in Texas, there were 441 executions between 1930 and 1977, but none were women. New York State, however, applied six of its seven twentieth-century death sentences to women. It should be emphasized that the percentage of executions of women is increasing, especially in the southern states.41
39

American Female Executions 1900-2003, 10 May 2004 <http://www.geocities. com/trct111/amfem.html>. 40 Loc. cit. 41 Loc. cit.

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Additionally, women are becoming a significant growth sector within penitentiary correctional centers. Currently, females make up approximately 6.4 percent of the total prison population. According to data provided by Rebecca Leung of ABC News, across the nation women constitute one of every eight persons arrested for murder, and one of every seventy persons awaiting capital punishment. It is important to point out, however, that according to a study conducted in 1998 by the Department of Justice Office of the U.S. Prison Program, most female prisoners, approximately 1.2 million women, are not criminals with a history of drug or alcohol abuse or mental health problems. Less than 10 percent of female prisoners are receiving treatment for these types of problemsthe remaining 95 percent are victims of abuse.42 From 1900 to 2005, fifty women were executed in the United States.43 Within the topic of female executions, great controversy has been generated by those cases in which the women sentenced to die are pregnant. One case that gave rise to strong public protests and radicalized abolitionist positions around the globe is that of Karla Faye Tucker, executed, while pregnant, by lethal injection on February 3, 1998, in Texas, for double murder after being denied clemency by then-Governor George W. Bush. Mrs. Tucker claimed that she had a right to be a mother. In the resolution of her case, however, the degree of absolute silence regarding her petition stands out. The distressing thing is that it established a precedent by carrying out an execution despite the arguments regarding the right to life of the unborn.44 Only two U.S. states have programs for prisoners who are mothers, while in others, pregnant women are forced by state law to have abortions.45 Contrary to the U.S. situation, contemporary international law includes the rights of women who are or will become mothers in some of the aforementioned international instruments. In the first place, the First Additional Protocol to the Geneva Conventions of
42

Rebecca Leung, Women and the Death Penalty, ABCNews.com, 10 May 2004 <http://more.abcnews.go.com/sections/us/dailynews/women_deathpenalty.html>. 43 Death Penalty Information Center/Death Penalty Fact Sheet/ loc. cit. 44 A. L. Stubbs, Clemency: The Future of the Death Penalty (New York, Ed. Clemency Books, 1999) 29. 45 See Lorraine Espinosas article regarding the work done by Kathy Morriss and her project Baby Blessings (Ministry Saves Babies, in Celebrate Life, 1997).

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August 12, 1949 regarding Protection of Victims of International Armed Conflicts46 contains two prohibitions of the death penalty with regard to women. According to its Article 76 (3): To the maximum extent feasible, the Parties to the conflict shall endeavor to avoid the pronouncement of the death penalty on pregnant women or mothers having dependent infants, for an offense related to the armed conflict. The death penalty for such offenses shall not be executed on such women. In other words, this resolution recognizes two separate rights with regard to women accused of crimes punishable by death, as long as the crime is involved with the armed conflict. This standard is also included, in terms similar to those of the First Additional Protocol, in Article 6 (4) of the Second Additional Protocol to the Geneva Conventions of August 12, 1949 regarding Protection of Victims of Non-International Armed Conflicts.47 That is, it recognizes the right of pregnant women not to be executed as a consequence of a death sentence, and the same right as to any woman who is the mother of a young child. Unlike the First Additional Protocol, however, the Second does not require a relationship of dependency between the mother and the child in order for them to be protected by the rule. In addition, the 1984 Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty,48 in their third paragraph, state as follows: Persons below 18 years of age at the time of the commission of the crime shall not be sentenced to death, nor shall the death sentence be carried out on pregnant women, or on new mothers, or on persons who have become insane.
RACIAL SITUATION

At least since the 1950s, opposition to the death penalty in the United States has been based, in part, on the argument that the
46

Also known as Protocol I. It was approved on June 8, 1977 by the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts. 47 Also known as Protocol II. It was approved on June 8, 1977 by the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts. 48 Passed by the Economic and Social Council in its Resolution 1984/50 on May 25, 1984.

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penalty is applied in a racially discriminatory manner. This argument played a significant role as a basis for questioning the constitutionality of the death penalty in the mid-1960s. Most of those who oppose capital punishment believe that the racist element affects all levels within the system and that it will not possible to eradicate it in the near future.49 This issue was a crucial factor in U.S. Supreme Court Justice Harry Blackmuns decision to discontinue his support of the death penalty. In a speech given in 1994 to announce his new position, he said, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. [. . .] [I]t surely is beyond dispute that if the death penalty cannot be administered consistently and rationally, it may not be administered at all.50 Currently, even most death penalty defenders acknowledge that, the way it is currently applied in the United States, it is a racist institution. Within this group, some agree that if this fact can be proven, and there is no better solution, the death penalty should be abolished. Others insist that racism in the application of the death penalty is no worse than racism in other areas of the criminal justice system. Others accept this accusation and propose to remedy it by executing more white peopleespecially whites who murder blacks. There is extensive evidence showing that race indeed is a significant and determining factor when sentencing a defendant to death or simply giving him a lesser sentence for the same crime. Extensive research regarding death penalty patterns over the last twenty years show that the race factor, both consciously and unconsciously, influences the decision of who should live and who should die.51 The fact that juries tend to calculate silently the harm caused by murders would explain why death sentences are given much more often for murders of white people than for murders of black people. On some occasions, the figures might not reflect racial discrimination, but a careful analysis would reveal this fact. For ex49

H. A. Bedau (ed.), The Death Penalty in America: Current Controversies (London, Oxford UP , 1997) 249. 50 Paul A. Winters, The Death Penalty: Opposing Viewpoints (San Diego, Ed. Greenhaven P , 1997) 149. 51 Loc. cit.

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ample, no one would be surprised that, in the case of two identical murders, one would receive the death penalty if the victim was a beloved schoolteacher and mother of three, while the other would receive a lesser sentence if the victim were a crack addict and drug dealer. If we look at it this way, race plays no role in these decisions, but because the distribution of wealth, power and status in the United States is so unequal among races, this would inevitably have an effect on them. In addition, it is appropriate to emphasize the fact that many of the violent murders occur in poor neighborhoods of U.S. cities; in Chicago, for example, almost half of homicides are gang-related. In these cases, the race of the victim and the perpetrator, and the fact that a person voluntarily places himself at risk by getting involved with gangs, will play an important role when deciding about the death penalty.52 This inequality in the distribution of wealth can be seen in the difference regarding the percentages of whites and blacks living in poverty. In black families, the poverty rate is 31.3 percent, while in white families it is 9.4 percent. The unemployment rate among blacks is 11.5 percent, compared to 5.3 percent among whites. If we add to these figures issues such as fewer educational opportunities, poor living conditions involving a great risk of committing crimes and substance abuse, we can see that the totality of these conditions lead to an environment making it more likely that blacks would be given the death penalty and the resulting racial prejudice.53
FIGURE 6. RELATIONSHIP BETWEEN RACE OF PERPETRATOR AND RACE OF VICTIM IN DETERMINING USE OF THE DEATH PENALTY
Number of times death penalty Percentage of death Race of Race of perpetrator victim applied compared to number of crimes penalty applications

Black White White Black

White White Black Black

50 of 223 8 of 748 2 of 60 18 of 1,443

22% 8% 3% 1%

SOURCE: Study conducted by David Baldus of the University of Iowa.

52

Scott Turow, Ultimate Punishment: A Lawyers Reflections on Dealing with the Death Penalty (New York, Ed. Farrar, Straus and Giroux, 2003) 72. 53 Gardner C. Hanks, op. cit., 96

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According to statistics, in 1994, 40 percent of prisoners sentenced to death in the United States were black, despite the fact that blacks constitute only 12 percent of the national population. In all, 50 percent of those sentenced to death were minorities.54 Given these numbers, studies have been done showing the role of race in the determination of the death penalty. They have concluded that one of the most important factors in determining the application of capital punishment is the race of the victim, combined with the race of the perpetrator, as reflected in the following chart: When speaking of the racial factor in the application of the death penalty, it is also important to consider the situation of the
FIGURE 7. RACIAL STATISTICS IN EXECUTIONS SINCE 1976
Race Perpetrators executed since 1976 Percentage Victims since 1976 Percentage

Blacks Hispanics Whites Others

364 73 608 24

31 6.6 57 2.3

225 81 1,263 33

14 4.7 79.3 2

SOURCE: Death Row USA 2007, NAACP Legal Defense Fund.

Hispanic minority in the United States. Recent studies and statistics indicated that 34.1 percent of those executed from 1976 to January of 2007 were black, while 6.6 percent were Hispanic. Similarly, 41.7 percent of those sentenced to capital punishment are black and 10.7 percent Hispanic. Since 1976, sixty-nine Latinos have been executed in the United States, fifty-six of them in Texas, making it the state that has executed the largest number of Latinos. However, California presently has 136 Latino prisoners who have been sentenced to die, making it the state with the largest number of Latinos sentenced to capital punishment.55 One of the most important studies was conducted in the late 1970s by William Bowers and Glenn Pierce, both of Northeastern University of Boston; this study compared statistics on capital punishment imposed in the states of Florida, Georgia, Texas and Ohio. The sentences in these four states represented 70 percent of all
54 55

Legal Defense and Educational Fund, NAACP , 1994. NAACP Legal Defense Fund, Death Row USA 2007 <http://www.naacpldf.org/ content.aspx?article=297>.

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death penalty sentences imposed during that time period. The researchers found that those who murdered whites were more likely to be sentenced to death than those who murdered blacks. Similarly, they found that although many of those who murdered whites were themselves white, the group most frequently sentenced to death was that of blacks who killed whites. In Florida and in Texas, for example, blacks were sentenced to death five and six times, respectively, more than whites. In Florida, a death sentence for a black offender who had killed a white was forty times more likely than for a black offender who had killed a black. On the contrary, during the time of the study, in Florida, not a single white offender was sentenced to death for having killed a black. In 1980 in this same state, a white man was the first to be sentenced to death for having killed a black woman.56 Another study carried out in the early 1980s sought to discover why the murderers of white victims in Georgia had received the death penalty approximately eleven times more than those who had killed blacks. The study found two significant points that affected the likelihood of a death sentence, when prosecutors were deciding whether to allow negotiation of appeal and seeking a capital punishment sentence after a murder conviction. In those cases in which the victims were black, life sentences were more likely than death. On the other hand, blacks convicted of killing whites had less possibility of receiving reduced charges and more probability of receiving the maximum penalty.57 In other statistics, an analysis was done on a sample of 227 prisonersaccused of having killed 302 victimsexecuted between 1976, when the death penalty was reinstated, and January 1994. Of the total number of victims, 84 percent were white and only 16 percent were black or belonged to any other minority group. Of the prisoners executed whose victim was of a different race, eighty-six blacks or other minorities were executed for having killed whites, while only two white murderers were executed for killing a non-whiteone for the murder of a black man and the other for the murder of an Asian woman.58
56 57

Ibid., 151 Loc. cit. 58 Ibid., 150

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The foregoing figures suggest that those who make decisions in the judicial systempolice, prosecutors and jurorsare placing greater value on the lives of whites than on those of blacks. When the capital punishment system makes the murder of a white person a crime punishable by death much more often than the murder of a black person, we are talking about a thorny issue that particularly calls into question whether equal crimes are truly punished equally. THE LEGAL PROCEDURE OF THE DEATH PENALTY This section of the chapter is devoted to explaining the legal procedure used in the United States to decide to sentence someone to death. The first part is a case study, because although this procedure is similar in all U.S. states, there are differences. It was felt, however, that a step-by-step account of the death penalty legal process in a single state was a practical way of providing the reader with an explanation of the procedure described herein. The second part will go on to a careful analysis of the most important elements of the legal process. Finally, the flaws in the U.S. judicial system will be identified.
CASE STUDY: THE LEGAL PROCESS OF THE DEATH PENALTY IN MISSOURI

The first stage of a capital case in Missouri includes the trial and the direct appeal. If the defendant is poor and cannot afford an attorney, the state may assign him a defense attorney. Under the Sixth Amendment to the Constitution,59 the defendant has the right to be assigned a defense attorney for this first stage, which includes pre-trial activities, such as arrest, interrogation, appointment of counsel, determination regarding the possibility of bond, notification by the prosecution of its intent to seek the death penalty, discovery, possible mental examination, investigation and motions filed and heard by the court.60
59

It must be remembered, as was pointed out in the first part of this chapter, that the Sixth Amendment specifies, among other rights, that in any criminal case, the defendant will enjoy the right of [. . .] having the assistance of an attorney to defend him. 60 See the entire legal procedure described in Cathleen Burnett, op. cit., 10.

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If the prosecutor decides to go ahead with the death penalty process, the trial is divided into two stages, generally, with the same jury. First is the guilt phase, where it is determined whether the defendant intentionally and with premeditation caused the death of another person. If the jury decides to convict the defendant of firstdegree murder, a penalty phase then follows, in which mitigating and aggravating evidence can be presented. Then, the jury can choose between a sentence of life in prison without parole or death. In Missouri, in order to choose the death sentence, the jury must first find, beyond a reasonable doubt, at least one legal aggravating circumstance, and must decide that the mitigating factors do not outweigh the aggravating factors. In principle, the judge must accept the sentence imposed by the jury, although in 1984, the jury procedure was amended to allow the judge to impose the sentence in case the jury is unable to decide or agree on the punishment. The law requires the judge to follow the same procedure required of the jury. Once the death sentence has been imposed, an execution date can be set. The execution will be postponed, however, if there are appeals pending, in order to guarantee that only fair and accurate death sentences are carried out. The first appeal of a death penalty conviction is an automatic review called direct appeal; it is sent to the state supreme court. In the direct appeal, it is determined whether a death sentence is appropriate and whether any of the listed errors put the fairness of the trial in doubt. The death sentence can be affirmed, reduced to one of life without parole or the case can be sent back to the trial court for a new sentencing. Following the direct appeal, the prisoner sentenced to death can appeal a negative decision to the U.S. Supreme Court via a petition for certiorari. In this stage, there is no constitutional right granting legal assistance to the accused; however, if he requests it, the state will appoint two attorneys to assist him. The petition for cert allows the accused to ask the U.S. Supreme Court to examine how the state court conducted the trial. If this petition is not granted, which happens in 99 percent of cases, the prisoner will have to go ahead with the next set of appeals, since normally an
60

See the entire legal procedure described in Cathleen Burnett, op. cit., 10.

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execution date is set. If the petition is granted, the U.S. Supreme Court will review the sentencing decision and may hold a hearing, but there is no guarantee that the ruling will be favorable. The second stage of a capital case is that of state habeas corpus or post-conviction proceedings. This is an action by the prisoner fighting his conviction or sentence (or both) after the direct appeal stage has concluded. In most states it will be considered that issues not raised, that could have been raised at trial or in the direct appeal, are waived and therefore will be procedurally excluded in a post-conviction action. These issues can still be asserted, but the court will determine whether they should be considered as an exception to what is stipulated by the waiver clauses. Those claims that could not have been raised at trial or in the direct appeal such as ineffective assistance of counsel or failure to produce exculpatory evidencemay be asserted or not, depending on their own characteristics. The prisoner is attempting to demonstrate that there was a fatal error, that is, that a legal procedure during the trial significantly harmed the accused, negatively influencing the result of the trial. Observations demonstrate, however, that it is unlikely that a court that has held a trial will change its manner of thinking and declare invalid something that at the time it considered valid. After this first post-conviction appeal, each of the parties can appeal to the state supreme court. If unsuccessful, the prisoner sentenced to death can appeal once more to the U.S. Supreme Court through another petition for certiorari. The third stage of a capital case consists of the federal habeas corpus proceedings. In Missouri, these cases are sent to the Eighth Federal Circuit, which also has jurisdiction over Arkansas, Nebraska, Iowa, South Dakota, North Dakota and Minnesota. The prisoner can initiate this third stage only after having exhausted all state proceedings. Before he can continue, the appellant must have obtained a probable cause certificate (also called certificate of appealability) that demonstrates that the issues raised are debatable among reasonable jurists. The federal district court will consider only those issues that have been presented and decided by the state courts. Unless the defense attorney demonstrates that an issue was not previously raised for a good reason, it cannot be subsequently raised. After appealing to the Federal District Court, the

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prisoner appeals to the Federal Circuit Court of Appeals. The final appeal is a petition for certiorari to the U.S. Supreme Court. The federal habeas corpus appeal process was modified significantly by the Antiterrorism and Effective Death Penalty Act (AEDPA) in 1996. In the Act, the sections referring to the death penalty were designed to reduce the number of habeas corpus appeals, to shorten the time allowed for them to reach the appropriate authorities and to reduce the likelihood that the petitions would be granted. Once the courts have issued a final judgment, the prisoners only possibility is to appeal to the governor for clemency. The clemency petition is sent to the governor, who in turn sends it to the committee on commutation of sentences and pardons, so that the committee can investigate and make its non-binding recommendations to the governor. In the decision on whether to grant clemency, the rules of evidence that apply in the courts do not limit the governor. In fact, the governor has complete freedom to decide whether to grant clemency or not.61
THE FIVE ELEMENTS IN DEATH PENALTY LEGAL PROCEDURE

In this section, we present five key players in the legal process of determining who should receive the death penalty. An analysis of the role played by each one of these actors within a death penalty sentence is essential to an understanding of all the factors involved in a decision of this nature. They are presented more or less in order of precedence or importance within a capital punishment trial, and they are the defense attorney, the prosecutor, the judge, the courts of appeal and the state governor.
a. The defense attorney

As indicated above, the Sixth Amendment guarantees a defendant adequate assistance of counsel in order to defend himself at trial, with the goal of guaranteeing justice for all persons accused of crimes. This constitutional protection is considered one of the four fundamental rights of U.S. citizens. It is a guarantee that U.S. society, in general, takes for granted. It was in 1932, in the case of Powell v. Alabama, that the U.S. Supreme Court held that due
61

Established by the Missouri Constitution, Article IV, Section 7.

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83

process required that states provide a court-appointed attorney for indigent defendants in capital punishment cases. However, because the Sixth Amendment does not specify what stages, beyond trial, are covered by the legal representation guaranteed therein, heated debates have arisen in litigating death penalty cases.62 The American Bar Association published a brochure containing Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases. The goal of this publication is to provide information necessary to guaranteeing quality representation at all stages of the case. The guidelines specify the minimum eligibility requirements for an attorney to be appointed in a death penalty case. The attorney must have five years of experience as a criminal defense attorney, must have participated in at least nine criminal trials and in three of them must have functioned as lead attorney in a homicide or aggravated homicide case and must have participated in at least one capital punishment case. The attorney must be a specialist on expert witnesses and evidence, in addition to being familiar with the procedures and practices in his jurisdiction, and must have participated in specific continuing education regarding death penalty litigation.63
b. The prosecutor

Prosecutors must operate under ethics rules that guide their actions and limit the possibility of abusing their power. These ethics rules are listed in the American Bar Associations Lawyers Manual on Professional Conduct.64 These model rules make it clear that the role of the prosecutor is that of a minister of justice and not that of a simple lawyer. The prosecutor is to seek justice, not just a conviction, because the obligation to defend it is inherent to the legal system. This expectation of seeking justice may be in conflict with the need to win at trial, obtaining the conviction of the accused. However, the job of the prosecutor is not only to win but also to win fairly, staying within the rules. As a minister of justice, the prosecutor is required by ethical standards to see that
62 63

Cathleen Burnett, op. cit., 63. ABA, Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases, 1989. 64 ABA, Lawyers Manual on Professional Conduct, 1997.

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the defendant receive justice in the process and that guilt be decided based on sufficient evidence.65 Thus, the ideal prosecutor should actively look for facts and laws that would free the innocent, as well as evidence to charge and convict the guilty. This dual role is difficult to sustain when the political pressures of the job demand a response to societys fears; society wants the bad guys to be convicted and does not understand the prosecutors responsibility to protect the innocent. In this sense, fear is what molds the viewpoints of public opinion, as it is focused on crime and arrests and pays little attention to the remaining aspects. In other words, public opinion infers that any arrest is equivalent to a guilty person having been found, so if the system is effective the conviction should thus be inevitable. This public attention on conviction is aggravated by the fact that, in many jurisdictions, the prosecutor is an elected official. That is, public opinion has no access to the daily reality of the prosecutors office and sees only the results; it does not see how they were reached. Therefore, convincing public opinion that the decision made by the prosecutor is the correct one is a very difficult process that often encourages the conviction of innocents. Included among the elements of justice that are to be utilized by the prosecutor, then, are not withholding evidence that could help the accused and not presenting evidence that is not otherwise admissible. In other words, the prosecutor has the obligation to provide the defense attorney with any information that could help the accused. This just demand is the basis of a constitutional decision (Brady v. Maryland, 1967). For its part, the National District Attorneys Association also promulgates certain standards of behavior for prosecutors. For example, it establishes that closing arguments at trial shall be characterized by fairness, accuracy, rationality and confidence in the evidence. In this guideline, we see the professional obligation of defending the process of doing justice while attempting to prove beyond a reasonable doubt that the accused is guilty. It is obvious that these rules are necessary reminders of the duty to resist the tendency to focus exclusively on convictions. The rules themselves
65

Burnett, Cathleen, op. cit., 41.

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establish that their intention is to certify fair competition and maintain public trust in the prosecutors office. Of course, reality is different from manuals, since prosecutors, as has been indicated, are subject to pressures and even must win and come out on top if they wish to put into practice their ideals of justice. In a study that reveals cases of more than 400 Americans wrongly convicted of crimes punishable by death, Michael Radelet, Hugo Bedau and Constance Putnam (1992) underscore the role of prosecutors in creating wrongful convictions by withholding exculpatory evidence from the defense. As we have seen, whatever their motives, such actions clearly violate ethical and constitutional expectations. Withholding exculpatory evidence from the defense appears as a basis for clemency petitions in nine of fifty petitions in Missouri, or 41 percent of cases with problems related to the prosecution. It was also shown that in five of the clemency petitions (10 percent), witnesses who falsely (according to the petition) identified the condemned as the killer were rewarded by the prosecution for their testimony. This type of deal-making leads to unreliability in the murder conviction as well as in the death sentence. Since the juries were not aware of these problems with the evidence, their deliberations were based on incomplete or even false information.66
c. The judge

Many expectations are associated with the role of the judge during the trial stage of a death penalty case. Death penalty trials take place in two phases, separating the determination of guilt from the sentencing decision. The courtroom in which these decisions are made is under the management of the judge, who is given wide latitude in fulfilling the legal responsibilities. The judge decides questions of the admissibility of evidence and of procedure, assists in the selection of the jury and guides the questioning of witnesses, and is responsible for maintaining an environment in which all parties are given the opportunity to present their side of the case, while maintaining respectful and appropriate decorum in their conduct.67
66 67

Loc. cit., 43-44. Ibid., 100

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It is a basic understanding that judges are entrusted with the duty of ensuring that the trial is conducted within the boundaries of legal fairness.68 In order to point out what is expected of the judge, the American Bar Association has developed the Criminal Justice Section Standards, which specify, The trial judge should require that every proceeding before him or her be conducted with unhurried and quiet dignity and should aim to establish such physical surroundings as are appropriate to the administration of justice. [ . . . ] Once both adversaries have presented their case, the judge formally charges the jury by instructing its members on what points of law and evidence they must consider in reaching a decision, receives the jurys decision and then formally imposes the sentence. Guiding the judge throughout the trial is the general responsibility for safeguarding both the rights of the accused and the interests of the public in the administration of criminal justice.69 This ethical code of judicial conduct also deals with describing the rules that a professional judge should follow. Within them, three are particularly relevant to this analysis: 1. A judge should perform the duties of his office impartially and diligently. A judge should be faithful to the law and maintain professional competence in it. He should be unswayed by partisan interests, public clamor or fear of criticism. 2. A judge may engage in activities to improve the law, the legal system and the administration of justiceif in doing so he does not cast doubt on his capacity to decide impartially any issue that may come before him. 3. A judge shall not make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office; [or] make statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court.70 Unfortunately, the promise of the ideal judge is difficult to achieve in death penalty trials because judges are typically elected
68 69

Ibid., 101 Ibid., 100. 70 ABA, Standards for Criminal Justice, 1980.

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to their positions and as such are likely to be sensitive to public opinion, especially if a death penalty case receives a lot of media attention.71 Even when appointed, rather than elected, the reality is that it is difficult for judges to escape the political dimension of their work.72 In some cases, this causes judges to fail to enforce the constitutional guarantees of a fair trial for the accused. Some researchers believe that, sensitive to the publics intense interest in capital murder cases, judges are more likely to sentence a defendant to death than are juries hearing the same evidence.73
d. The appellate courts

Traditionally, the role of appellate courts has been to discover serious trial errors and to correct those errors [. . .] At the appellate level, state judges have longer terms than trial judges, and federal judges have lifetime appointments, all in the expectation that these appellate judges will be more insulated from common political concerns and be better able to uphold the neutral principles of justice and fundamental fairness.74 The fact that there is the possibility of appealing a sentence and having it reviewed implies the recognition that judges may make mistakes in the administration of justice and that serious errors should be corrected. We expect that any wrongful conviction will be discovered and overturned.75 It is assumed that if the appellate courts do not stop the execution, or the case is not reversed, then it must be true that the trial judgment is correct and the sentence is just.76 This is the reason that executions are carried out unless appellate courts point out some problem with the sentence. In this sense, the appellate courts give legitimacy to the implementation of the death sentence.77 When evaluating whether a death sentence is appropriate what is known as proportionality review, the state supreme court to which the sentence was appealed must compare it to other sim71 72

Ibid. Ibid., 102. 73 Ibid. 74 Burnett Cathleen, op. cit., 117. 75 Ibid. 118. 76 Ibid. 77 Ibid.

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ilar cases. The National Center for State Court Proportionality Review Project recommends that a meaningful review would use a pool of cases for comparison that included all cases in which the criminal charge included a death eligible offense and in which a homicide conviction was obtained. Then, in assessing whether the particular death sentence is proportional, the review should be able to display rationally based differences between those defendants who receive death sentences and those defendants who do not.78 After the proportionality review, the death row prisoner asks the courts for a writ of habeas corpus. The writ of habeas corpus has been known as the Great Writ because it is a bulwark against convictions that violate fundamental fairness (Engle v. Isaac 1982). Concerned with the potential abusive power of government, the state and federal habeas reviews give important protection to individual rights. As Justice Fortas observed, There is no higher duty of a court, under our constitutional system, than the careful processing and adjudication of writs of habeas corpus. (Harris v. Nelson 1969:292).79
e. The state governor

Executive clemency is more than simply mercy. There is a clear emphasis in tradition on its role in correcting mistakes. ABRAMOWITZ AND PAGET, 1964

All the issues surrounding the fairness of the process and the legal procedures of death penalty cases come together in the final stage of the process: the appeal for executive clemency made to the governor. The term clemency refers to an act of leniency in the criminal justice system, based on humanitarian grounds, which may invoke doubt as to the guilt of the person convicted or personal considerations of the governor or advisory council regarding the process. Within the death penalty system, clemency may be one of three things: a reprieve; a commutation; or a pardon (or a combination thereof). A reprieve is a stay of execution, granting time in order to
78 79

Ibid. Ibid.

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do something else, to give time for consideration of other issues, possibly in other jurisdictions. Many governors have a great deal of discretion in shaping what happens during the period of a stay. A commutation of sentence is a reduction of the penalty, usually to a sentence of life without parole. A pardon is a complete absolution of guilt for a crime. However, pardons are rarely granted in capital punishment situations.80 In order to understand the importance of the concept of clemency, it is necessary to go back into U.S. history. During the development of the United States as a nation, the power of pardon was imported from the English tradition and incorporated into the legal system. The justification for this imitation was explained by Alexander Hamilton in the Federalist Papers.
The criminal code of every country partakes so much of necessary severity that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.81

With regard to the procedure to appealing for clemency, when the United States was formed as a nation, there was discussion regarding whether the power of clemency should reside in the executivein-chief or in the legislature. The constituents of that time were aware that the power to grant pardons should be delegated in such a way as to be independent of the judicial branch and thus act as a review of courts decisions.82 Initially there was a distrust of a powerful executive, since the colonies had just achieved their independence from the dictatorial monarchy. The states made different decisions as they wrote their constitutions. The passage of time erased this distrust, and some states resumed the practice of leaving this responsibility to the executive. Presently, the granting of clemency is exercised differently in states that have the death penalty. In the states of Alabama, California, Colorado, Kansas, Kentucky, New Jersey, New Mexico, New York, North Carolina, Oregon, South Carolina, Virginia, Washington and Wyoming, the
80 81

Burnett, Cathleen, op. cit., 13. The Federalist Papers, 18 July 2005 <http://www.law.ou.edu/hist/federalist/>. 82 Loc. cit.

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granting of clemency depends exclusively on the governors decision. The states where the governor must act based on clemency recommendations made by an advisory council are Arizona, Delaware, Florida, Louisiana, Montana, Oklahoma, Pennsylvania and Texas. In the states of Arkansas, Illinois, Indiana, Maryland, Mississippi, Missouri, New Hampshire, Ohio, South Dakota and Tennessee, the governor may act based on clemency recommendations made by the clemency advisory council. In other states, it is only the clemency advisory council that decides whether to grant this relief; this is the case in Connecticut, Georgia and Idaho. Likewise, there are other states where the governor is a member of the clemency council and makes a decision in conjunction with the other members as to whether to grant clemency: these states are Nebraska and Nevada. In cases involving the federal government, the granting of clemency is the exclusive power of the president.83 Regarding the composition of the clemency or pardon council, it is important to point out that there are no established parameters for its composition and therefore each state forms its council differently. Generally, council members are appointed by the state governor, and they include judges, attorneys, law enforcement officers and exemplary citizens. Additionally, it is important to mention that the granting of clemency may be conditional, that is, the restoration of the offenders civil rights may have conditions imposed, or it may be unconditional. Thus, we must situate clemency within the executive branch of the government, as an integral part of the death penalty judicial process. In the case Herrera v. Collins (1993), Supreme Court Chief Justice Rehnquist clearly trusted in the role of the governor to grant clemency. In that case, the justice stated:
Clemency is deeply rooted in our Anglo-American tradition of law and is the historic remedy for preventing miscarriages of justice where judicial process has been exhausted. In England, the clemency power was vested in the Crown and can be traced back to the 700s. Executive clemency has provided the
83

Death Penalty Information Center, The Clemency Process, in: loc. cit., 10 Apr 2007.

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fail safe in our criminal justice system. It is an unalterable fact that our judicial system, like the human beings who administer it, is fallible.84

91

With the Supreme Courts confidence in the governor to be the fail-safe mechanism, the executive branch becomes, then, a key step in the administration of justice and a check on the judiciary. Some governors would reject this role, feeling that the clemency power interferes with the judicial process, but this point of view is not very credible. Given the severity and irrevocable nature of the death penalty, it can be said that executive clemency is a fundamental characteristic of the justice system. The clemency petition is the opportunity given to death row prisoners to declare their innocence before the governor, to ask for mercy, to beg for justice. Examining the clemency petitions presented to Missouri governors, for example, we realize the burden borne by the governor when the Supreme Court relies on his ability to be the fail-safe in the death penalty system. However, in reality, it is very unlikely that a governor would leave his political office and evaluate the clemency petition based on the arguments presented. Clemency is granted for various reasons, some of which are based on the concern to achieve justice, while other are related to mercy. However, each state considers different factors when it comes to granting clemency. Clemency has been granted for the following reasons: 1. actual proof of innocence; 2. violation of prevailing standards of decency (such as in diminished mental capacity, retardation, intoxication or minority); 3. an express request by the prosecution; 4. guilt is in doubt; 5 proportionality or equity in punishment among equally guilty codefendants; 6. public has shown conclusively albeit indirectly that it does not want any death sentences carried out;
84

Quoted in loc. cit.

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RICARDO AMPUDIA 7. a non-unanimous vote by the appellate court upholding a death sentence conviction leaves disturbing doubt about the lawfulness of the death sentence; 8. the statutes under which the defendant was sentenced to death are unconstitutional; 9. mitigating circumstances; 10. rehabilitation of the offender while on death row undermines the rationale for carrying out the death penalty; 11. the death penalty is morally unjustified; 12. fairness of trial (such as in eyewitness testimony, perjury by real killers, confessions).85

FLAWS IN THE U.S. LEGAL SYSTEM

Following the explanation of the functioning of the death penalty legal process, we proceed to deal with a number of problems that have been identified in the application of the death penalty, which offer valuable material for those who oppose capital punishment. As a consequence of the contradictions that have existed in the use of the death penalty, in February 1997 the American Bar Association stimulated abolition efforts when its House of Delegates voted in favor of a moratorium on executions until the states had the means of guaranteeing that executions were performed fairly and appropriately. The House of Delegates concluded that fundamental due process is now systematically lacking in capital cases. Led by the Section of Individual Rights and Responsibilities of the ABA, the moratorium resolution was a response both to the legislative actions of Congress and to the Supreme Courts tendency to avoid a substantive review that would guarantee justice and due process in the litigation of capital cases. A great concern of the ABA is
Title I of the Antiterrorism and Effective Death Penalty Act of 1996 passed by Congress, which specifically narrowed the appeal process for death row inmates, curtail[ing] the availability of habeas. The new law establishes deadlines for filing
85

Ibid., 158.

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federal habeas petitions, places limits on federal evidentiary hearings into the facts underlying federal constitutional claims, sets timetables for federal court action, limits the availability of appellate review, establishes even more demanding restrictions on second or successive applications for federal relief, and in some instances, apparently bars the federal courts from awarding relief on the basis of federal constitutional violations where state courts have erred in concluding that no such violation occurred.86

93

Although the pressure to restrict appeals was justified in part because of numerous frivolous appeals, the ABA remarked that contrary to popular belief, most habeas corpus petitions in capital punishment cases do not rest on frivolous technicalities. Despite its intention to reduce frivolous appeals to the federal courts, the change in the habeas law meant that cases with meritorious issues would be less likely to be considered by the federal courts. The ABA resolution criticized the new federal legislation as having dramatically undermined the federal courts capacity to adjudicate federal constitutional claims in a fair and efficient manner. Because of the deference to state decisions, the law also undercut the traditional role of the federal court to maintain national standards of justice and due process.87 In another action, Congress completely withdrew federal funding from the post-conviction defender organizations in 1995. Such action had the result of ensuring that poor defendants would have little or no assistance of counsel, especially at the higher appeals stages where thorough reviews are critical. In addition to the problems mentioned with the legal decisions,
The ABA documented serious flaws in legal representation and recommended remedies, to no avail. States consistently underfund the defense of persons accused of capital crimes even as they bolster prosecution resources. Even in the stages of litigation where counsel can be appointed to a poor defen86 87

Ibid., 11 Loc. cit.

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dant, the ABA observed that the federal courts have not rectified the low standard for effective assistance of counsel.88

This situation is aggravated since, because death penalty law is quite different from other criminal law, defense attorneys require significant time and resources to mount an adequate defense. Given that a private attorney would require $100,000 to be paid before a death penalty case is taken on, most Americans would be considered poor if found in these circumstances. Since state funding for appointed defense attorneys has been abysmally low, the conclusion is inescapable that poor defendants are condemned to death without benefit of the due process that is a guarantee of justice for all. This problem intensified with the Supreme Courts action in taking away many avenues to correct serious errors. The ABA identified additional obstacles that death row prisoners face when attempting to raise constitutional claims in the courts. According to the ABA, prisoners have not been entitled to a stay of execution to complete their post-conviction litigation. The federal courts typically have refused to consider claims that were not properly raised in state court, even if the failure to raise them was due to the ignorance or neglect of defense counsel. And prisoners have often not been allowed to litigate more than one petition, even if they have offered strong evidence of egregious constitutional violations that they could not have presented earlier.89 Fairness questions are dramatically raised through the publicity of persons wrongly convicted and then released from prison after their exoneration. The long-standing work by attorney Barry Scheck and the Innocence Project he established at the Cardoso Law School discovered conviction errors mainly by utilizing new techniques of DNA testing. More attention to wrongful convictions came primarily through the investigative efforts of Northwestern University Law School students and their teachers. Highlighting these efforts, a conference in November of 1998 at Northwestern University Law School presented eighty-seven personsall wrongfully convicted of capital murderwho have been released from
88 89

Ibid., 9. Ibid., 10.

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death rows since the reinstatement of the death penalty in 1976. As these numbers of wrongful convictions accumulate, increasing voices from within the system point to the numerous flaws in the legal process. Press conferences held by former federal U.S. attorneys (Millin, 2000) and law professors (OBrien, 2000) give witness to the growing support for the abolition of the death penalty.90 These voices warning of serious problems in death penalty litigation were reinforced most recently in a study conducted by James Liebman et al. (2000). These researchers found that appeal courts reversed death penalty cases 60 percent to 70 percent of the time, leading them to suggest that the death penalty system is broken because of this evidence of serious errors throughout the majority of states. Nonetheless, their research could be interpreted by death penalty supporters to endorse the credible job the appellate courts are doing in detecting errors. However, if it is true that the courts were once effective at detecting errors, these assurances may no longer be appropriate as the courts change the focus of their reviews. At the U.S. Supreme Court level, there has been a movement away from consideration of death penalty issues. Despite the appearance of micromanaging death penalty litigation, the U.S. Supreme Court, in effect, deregulates their control by deferring to the states imposition of the death penalty (Steiker and Steiker, 1995). This shift toward states rights has resulted in the relinquishment of the traditional role of the federal courts to ensure constitutional protections. What the Court set up was a series of trapdoors where any procedural wrong step, no matter how trivial, resulted in a petitioner forfeiting his claims (Lazarus, 1998: 503).91 LIFE ON DEATH ROW AND THE EXECUTION OF A CONVICT With the knowledge of how the death penalty legal process works in the United States, and the serious problems that occur in it, we cannot fail to mention the most serious punishment suffered by those condemned to death. I refer, of course, to the physical and psychological torment that the prisoners must bear, as they carry with them the burden of knowing that they will be executed inside a prison
90 91

Burnett, Cathleen, op. cit., 8. Lazarus, 1998.

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whenever U.S. authorities permit it. To many experts, the waiting area of death row represents to the condemned, being in a state of having no hope for life and the loss of ones integrity as a human being. To address this topic in this chapter, I will rely on, among other works, some passages regarding the prison life of Eddie Sonnier, sentenced to capital punishment in 1977 for murder and rape. This case captured the attention of the international community, and Sister Helen Prejean was charged with shedding light upon Sonniers life in prison.92 Below, I present some excerpts from Sister Prejeans book, entitled Dead Man Walking, which was subsequently adapted for the big screen:
Prison is torture for Eddie Sonnier. He hates waiting while the guards do the count. He tells me how every inmate at every minute of the day has to be accounted for. Before going to work you wait for the count. After work you wait for the count. Before eating, before you go to sleep, when you first wake up at 5:00 a.m. He hates being thrown side by side with all kinds of people. On the streets, he had kept to himself, avoided crowds. He is afraid in this place. You never know, he says, when someone might lose it and stab you with a radio antenna or a blade someones buddy made for him in the welding shop. Hes already been sent to the hole, because someone with a grievance had put contraband under his mattress. He had protested his innocence, but to no avail. [There is also the possibility of] getting into it with a cellmate [. . .]. [I]n the dorms, if you have enemies, they can follow you when you go to the bathroom at two or three in the morning and beat you up or stab you or rape you and if the free man on duty isnt quick to intervene, youre dead meat, youre history.93 Plenty of potatoes, rice, pancakes and beans. He is allowed out of his cell for one hour a day (the time of day varies; the earliest is 5:00 a.m.) and then he can visit with the other eleven men on the tier if he chooses, but relations are often tense.94
92

The prisoner where Eddie Sonnier was held is located near the Mississippi River and was known in the 1960s as the bloodiest prison in the Southern United States. 93 Sister Helen Prejean, op. cit., 33. 94 Ibid., 13.

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Periodically, inmates are strip-searched. Eddie points to the door in the visiting room through which inmates return to the prison. Behind that door is a room and a guard. After a visit the inmate removes all of his clothes. He opens his mouth and sticks out his tongue. He turns his head from side to side so the guard can check his ears. He raises his arms above his head and stands spread-eagled, then he turns his back to the guard, bends over, and opens the cheeks of his buttocks. Finally, his back still toward the guard, he raises his feet one a time for the guard to inspect the soles of his feet, his toes. If a guard suspects drugs, he may do a finger wave of the inmates rectum.95

97

Ill be moving to Cell One any time now, he tells me. An inmate on countdown for execution is put in the cell nearest the guard station. That way the guards, trained to spot desperate behaviorsuicide, escapecan look on him and makes notes in a log book on how he is bearing up. Tranquilizing medication is offered to the inmate if he desires it.96 Any minute the prison authorities might summon him to move to the death house. He has packed what they allow him to bring: a toothbrush and toothpaste, a change of underwear, cigarettes, his Bible, his address book, stationery and a ballpoint pen. No radio. Music stirs emotions, and prison authorities want as little emotion as possible in this process. There will be a television for him to watch. There will be a telephone on the wall near his cell from which he can make collect calls. Some men on the Row have recently made this move to the death house, but they have all come back alive, receiving stays of execution from the courts.97 The foregoing, in addition to making us aware of the daily aspects of life in prison, shows the great loneliness suffered by prisoners. The degree of solitude experienced by those sentenced to death is inevitable and can be explained in different ways. In the
95 96

Ibid., 33. Ibid., 34. 97 Ibid., 36.

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first place, and paradoxically to what one might think, the prisoner does not have the full support of his family. Many prisoners have not had contact with their families since the day they went to prison. One man condemned to death explained this situation:
In my own case, I have never experienced the web of mutually supportive relationships that families usually offer; in fact this deficit led me to leave my home and nine brothers and sisters at age 15. When I was tried on the capital charges in 1984, no family members came to my trial. [. . .] One critical letter from my father has been the only contact since.98

With death being the next challenge that the prisoners must face, the convict at times begins an internal quest for something or someone that will restore his inner peace and reconcile his soul. Thus, those sentenced to death often take refuge in the study of religious beliefs such as Christianity and Catholicism, among others, seeking to regain the strength and determination to face such a terrible fate. Unfortunately, isolation causes the individual to lose patience and self-control, giving rise to frequent fights with other prisoners and with prison authorities. Thus, the wait for the day of execution becomes a real hell for the prisoners, who often use all legal means possible to demand that the court make an immediate decision on their cases. Therefore, the conditions in which those sentenced to death live is one of the most traumatic experiences someone can bear. This leads me to reflect on what is worse for a prisoner sentenced to death: the punishment per se of the death penalty, or living in a state of complete isolation and physicalmental torment that he must bear while awaiting execution? When the wait ends, the convicts still have to experience what happens on the day of execution. But this process is experienced not only by the prisoner, since for jail staff, witnesses and other authorized persons, witnessing an execution is also a terrible experience that forever marks their lives. It is for this reason that I will describe below the most noteworthy circumstances that the prisoners must face on the day of their execution. For this, I will rely
98

Quoted in Michael Radelet, Facing the Death Penalty: Essays on a Cruel and Unusual Punishment, Philadelphia (Temple UP , 1989) 199.

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particularly on texts that offer information about the McAlester, Oklahoma penitentiary, better known as The Wall.99 The death chamber is separated from the witness seating area by a wall, most of which consists of a large, clear plate-glass window with a set of dark blinds. Behind the witness room with its two rows of chairs is an even smaller room, with a single row of chairs behind a one-way tinted window. This is where the family and friends of the victims watch the inmate die. The room measures some ten by fifteen feet. A small podium stands against the wall. This is where the warden will log, with minute precision, every action associated with the execution, what happened and when. The execution gurney takes up most of the room. The gurney is a converted American Sterilizer operating table taken from a hospital emergency room. The table has been customized, with crudely welded metal armrests, leather wrist restraints and black nylon and Velcro body straps. White sheets and sterile paper cover the worn black vinyl cushions. A small pillow lies where the inmates head will rest. A microphone is positioned on the wall at the head of the gurney. When the inmate is ready to give his final statement, the microphone will be lowered into place. Against the wall by the plate-glass window is a shelf holding a video monitor. Across from the gurney is a white door that opens into LL cell.100 On the day of execution, the inmate is awakened around 6:00 or 7:00 a.m. The warden meets with him and tells him exactly what will happen that day. They take care of legal matters like the inmates will, if he needs one, and the disposition of his body. Two corrections officers stand outside LL cell all day. The inmate is allowed visitors most of the day, but they are not permitted to touch; instead, he speaks with family and friends through the visitors windows. After spending the morning with his visitors, the inmate eats his last meal at noon. He is allowed to have anything available in the local community that costs up to fifteen dollars. After his last meal, the inmate is allowed to have his visitors back for a couple more hours. If the execution is scheduled for later at night, the inmate can eat a regular prison dinner off the line, if he is still hungry.101
Mark Fuhrman, Death and Justice (New York, St. Martins P , 2003) 1. Ibid., 9. 101 Ibid., 11.
100 99

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An hour before the execution, the visitors are escorted out of LL. The prison chaplain comes into the cell to speak with the inmate, and to hear his confession and give him last rites if he is a Catholic. The inmate is dressed in a light blue outfit that resembles surgical scrubs. About twenty minutes before the execution, the warden comes into LL and asks, Are you ready to walk with me? The inmate follows the warden through the door and into the death chamber. While the inmates visitors are secured elsewhere, three men enter the prison. They arrive separately and do not know each others names. Their identities are kept secret from nearly every other prison employee. They are the executioners.102 The executioners room is tiny, not much bigger than a large supply closet; there is one cinder-block wallthe other three are concreteand shelving filled with sterile sheets, rubber gloves and other medical necessities. A small biohazard trash bin sits on the floor by the door. The only light comes from a weak green bulb, which gives it the appearance of a photographers dark room. The executioners set up three different chemical doses and saline solutions that are run through two holes in the wall and into the IV units in the inmates arms. A local hospital had provided the drugs, until the doctors there decided that participating in executions was contrary to their Hippocratic oath. For the same reason, the executioners are not doctors themselves, and the doctor in the death chamber is not there to participate in the actual execution, only to monitor the inmate and pronounce death, or in case of an emergency. There is a phone in the witness seating area that a prison official uses to call the governor before the execution to make sure there will be no last-minute reprieve. Once the final word from the governor has been received, the prison official places a call to the phone inside the death chamber. When the warden gets the okay, he announces that the execution will proceed.103 The inmate lies down on the gurney, which has been covered with sterile blue sheets (when the inmate dies, his bowels and bladder will release). Nylon straps with Velcro fasteners secure his body. His arms are strapped down to the metal armrests. A registered
102 103

Ibid., 12. Ibid., 13.

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phlebotomist places an IV unit in each arm. Through the glass, he can see the first two rows of witnesses, but he cannot see past the tinted glass to where the family members of his victims sit. The inmate is asked whether he would like to make a final statement. If he wants to say something, the microphone is lowered down from the wall behind him, and he says a few words. Usually the condemned says goodbye to his family. Sometimes he apologizes to the victims and their families.104 When the inmate is finished speaking, the warden gives the command for the execution to commence. In his log, the warden records every move, noting the time and any physical reaction by the inmate. Inside the executioners room, each executioner pushes a button. First, sodium thiopental is injected into the inmate, which causes unconsciousness. Next is a saline flush, which clears out the IV tubes to ensure that the chemicals do not mix inside the inmates bloodstream. Then pancuronium bromide is injected, which paralyzes respiration. Next is another saline flush, and then potassium chloride is injected, which stops the heart from beating. Once the inmate is declared dead, the blinds are lowered and the witnesses are escorted outfirst the inmates family, friends and attorneys, and later the victims families.105
CASE STUDY: TAMMS CORRECTIONAL CENTER

This case study is presented because it is one of the maximumsecurity prisons that, as described above, allow us to learn about the living conditions of those sentenced to death in the United States. Tamms Correctional Center is known in the penal field as CMAX, a closed maximum-security place, and is popularly known as Super-Max. It can be said that the worst of the worst come to Tamms, some 259 bad guys chosen from a total population of almost 45,000 prisoners, most of them gang leaders or men with untreatable discipline problems, especially with histories of having attacked other prisoners or guards. The inmates remain imprisoned there until they demonstrate that they have the ability to control their violent tendencies.106
104 105

Ibid., 14. Ibid., 14. 106 H. A. Bedau (ed.), op. cit., 84.

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Tamms is located near the bottom point of Illinois, where the state is farther south than part of Kentucky. The Mississippi, a wide body of cloacal brown, floods the nearby lowlands, creating a green region of marshes along the orange sandstone bluffs. At the foot of one of these stone outcroppings, on twenty-six acres of a vast savanna-like grassland, stands the Tamms closed facility.107 The terms of confinement in Tamms CMAX are admittedly grim. Inmates are permitted no direct flesh-to-flesh contact with other human beings. Each prisoner is held 23 hours a day inside a seven-by-twelve-foot block of preformed concrete, weight approximately 32 tons, which has a lone window to the outside, roughly 42 by 18 inches and segmented by a lateral steel bar. The cell contains a single stainless steel fixture holding both a toilet bowl and a sink, and a concrete pallet over which a foam mattress is laid. The door is punch plate, steel pierced by a network of half-inch circles almost like bullet holes, which permits conversation but prevents a prisoner from doing the mayhem possible when he can get his hands through the bars. Once a day an inmates door rolls back under remote control, and at the end of the corridor of cells, the doorway slides open, allowing exit to an outdoor area, 12 by 28 feet, half of it roofed and all of it surrounded by 13-foot concrete walls. For an hour, the prisoner may exercise or just breathe fresh air. Showers are permitted on a similar remote-control basis, 20 minutes, several times a week. For those who remain recalcitrant and few dothere are still privileges that may be suspended. For example, misbehaving inmates can be put on meal loaf, which means that, rather than usual fare, they are fed a brown mass of mashed meat, spinach, and meal, among other ingredients. Prisoners who cooperate are progressively rewarded, with high favor represented by the installation of a TV , housed in a clear plastic case to prevent anyone from turning it into a weapon.108 Like most penal institutions, Tamms has its critics. In addition to the objections from the left that the isolation and restriction of Super-Maxes constitute cruel and unusual punishment, there are also complaints from the right. Tamms is expensive, in part be107 108

Turow, Scott, Ultimate Punishment: A Lawyers Reflections, 85. Loc. cit.

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cause, blessedly, it is not full. The roughly $52,000 spent in 2002 on each Tamms prisoner was two and one-half times the approximately $20,500 it cost on average to imprison an inmate in Illinois other penitentiaries.109 In sum, analyzing the legal system that supports the application of the death penalty in the United S., from its history, legislation, process, special cases and contradictions, is fundamental for understanding the scope of the problems facing a defendant accused of a crime punishable by death, when it comes to his legal defense. Now, having learned of the problems in the U.S. legal system, we can move on to the analysis of the situation of Mexicans sentenced to death in the United States, and the work that their consulates perform to provide legal assistance to their citizens facing this situation.

109

Loc. cit.

Consular Protection of Mexicans Sentenced to Death in the United States

E HAVE ALREADY ANALYZED SOME ASPECTS OF THE U.S. judicial system, and we have seen the risks faced by Mexicans accused of serious crimes in the United States, as well as the possibility of being sentenced to death despite being innocent. We also took into account the many factors involvedpolitical, economic, cultural, racial, etc.in imparting justice in the United States. Many of the opinions, however, impinge on the commitment to impartiality. Given this situation, the assistance that the Mexican consulates provide to their citizens facing prosecution in the United States is of vital importance. There lies the focus of this chapter, in which the most important points regarding consular protection are explained. The historical analysis that is presented in the first section demonstrates that the protection granted by the Mexican government to its nationals abroad is not a recent creation, but in fact has been a priority in Mexico since its earliest days as a nation. This protection consists of not only isolated actions but also extensive regulations. Additionally, it covers different aspects that are vital for ensuring a fair and impartial legal process. However, it must be acknowledged that in recent years this task of protection has taken on special emphasis.

104

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HISTORY OF THE CONSULAR PROTECTION PROVIDED BY THE MEXICAN GOVERNMENT TO ITS CITIZENS ABROAD The defense of Mexicans abroad, and the promotion of respect for their human rights, for years have been two of the main pillars of Mexican foreign policy, upon which is based the task of protection performed by the Mexican government. Consular protection, especially that provided to migratory workers who go to the United States, has a long tradition in the history of Mexican diplomacy. Therefore, the protection of citizens, throughout Mexicos history, can be identified since Mexicos earliest days of nationhood. Soon after attaining its independence, Mexico showed an interest in establishing consular contacts with other nations. However, it is logical that, since at that time we did not have a professional, trainer consular corps, this required improvisation, to the extent that many appointments were conferred upon foreigners, a situation that continued throughout the nineteenth century.1 The idea of establishing consular agencies in the United States, in order to protect Mexican interests, first arose in 1823 during the Iturbide administration. However, it did not become a reality then, since, given the lack of Mexicans who spoke English and who had the knowledge necessary to perform the job, no agreement was reached as to who would head a proposed consulate in New York. Then came the fall of the Iturbide government.2 Around the same time period, Mr. Gutirrez de Lara, a Texas representative, insisted on the establishment of a consular agency in Natchitoches, whose main objective would be to keep watch over the Sabina River border. The consular agency was not opened there but in fact a consular agent for Mexico was named in New Orleans in 1824. Later a vice consulate was opened in Baltimore in 1825, a consular agency in New York and a vice consulate in Philadelphia
1 2

Ramn Xilotl Ramrez, Derecho consular mexicano (Mexico, Porra, 1982) 138. Mr. Zozaya Bermdez, then head of the delegation certified before the U.S. government, presented as a candidate to head the consulate Mr. Roberto Meade, a Philadelphia banker and contractor of several war ships that the Mexican government had ordered, under the idea that, although it was distasteful to confer those posts to foreigners, it would be necessary to do it this way, for the time being, adding to them young people to be trained in consular jobs. Meades candidacy was unsuccessful and Iturbides fall from power led to the recall of Mr. Zozaya. Los primeros consulados de Mxico, 1823-1872 (Mexico, SRE, 1974) 25.

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in 1826, a vice consulate in Boston in 1827, a consulate in St. Louis, Missouri, in 1832, a vice consulate in Mobile, another in Charleston and one more in Pensacola in 1836, a consulate in Independence in 1843, one in San Francisco in 1848, one in New Mexico in 1849 and that same year a vice consulate in Brownsville and in El Frontn de Santa Isabel (now Port Isabel, Texas).3 Thus, we come to the time period when a clear need to protect the interests of Mexicans abroad arises for the first time. In 1848, with the end of the war between Mexico and the United States, more than half of Mexican territory was lost, including California, Arizona, New Mexico, Texas and part of Colorado, Nevada, Utah and Wyoming. Following the signing of the Treaty of Guadalupe Hidalgo, the United States paid $15 million as compensation for damages to Mexican territory during the war.4 During the treaty negotiations, the Mexican government worked to achieve clear regulation regarding respect for the rights and properties of Mexicans who lived within the territory that was now on the other side of the border. However, these rights were not respected. The Treaty of Guadalupe Hidalgo provided for protection of the civil rights and property of Mexicans who remained in what was now U.S. territory.5 Additionally, the United States agreed to patrol
3 4

Ibid., 25-31 The Treaty of Guadalupe Hidalgo brought an end to the Mexican-American War. It was signed February 2, 1848, in Guadalupe Hidalgo, which is today part of the Gustavo A. Madero Delegation in Mexico City. Let us recall that President Santa Anna was unable to prevent the capital of the Republic from falling into U.S. hands, and therefore he resigned his position. Then Don Manuel de la Pea y Pea, Chief Justice of the Supreme Court, became Interim President and transferred his government, as well as Congress, to the city of Quertaro. Luis de la Rosa, Interior and Foreign Minister, was given responsibility for the negotiations that culminated in the treaty of peace, friendship, borders and definitive arrangement between the Mexican Republic and the United States of America. Subsequently, Congress voted in Quertaro on the signing of the Treaty of Guadalupe Hidalgo, which passed with fifty-two votes in favor and thirty-five against, cast by the Liberals. Senado de la Repblica, Tratados ratificados y convenios ejecutivos celebrados por Mxico, SRE. 5 For example, Article VIII, in its third paragraph, stated regarding the property of Mexicans: In said territories [that is, those lost by Mexico], any type of property, now established there, shall be inviolably respected. The current owners and all Mexicans who may, now or in the future, acquire said properties through a contract, shall enjoy, regarding them, guarantees as broad as if these properties belonged to U.S. citizens. Arturo Santamara Gmez, Hace ciento cincuenta aos . . . Viviendo el legado del Tratado de Guadalupe-Hidalgo, Selecciones del Tribuno del Pueblo, March 1998.

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its side of the border, and both countries agreed to submit future disputes to binding arbitration. When the U.S. Senate ratified the treaty, however, it eliminated Article X, which guaranteed protection of land grants given to Mexicans by the governments of Spain and Mexico. It also weakened Article IX, which guaranteed rights of citizenship. This, in turn, gave rise to an anti-Mexican sentiment that led to violations of Mexicans civil rights. In Texas, their vote was restricted; in New Mexico, they were victims of violence; and in California, the authorities passed laws against them, some of which were known as Greaser Laws, thus demonstrating their contempt for Mexicans. It is important to note that during the period of the treaty, approximately 80,000 Mexicans, or 4 percent of the Mexican population, lived in the territory given up by Mexico. The majority of these Mexicans continued to live in what was now the southwestern United States, believing that their civil and land-owning rights would be protected, although it should be mentioned that few of them chose to keep their Mexican citizenship. By the late nineteenth century, the majority of those who did keep their nationality lost lands through fraud dispossession.6 The next occasion on which the practical performance of the task of protection was documented occurred in the decade of the 1880s, when the hiring of large groups of Mexican workers began in the United States. During those years, attention was focused on aid to the few Mexicans who wished to be repatriated, although beginning in 1920, more complete and varied assistance became necessary for the increasingly large groups of citizens who were emigrating to the North.7 Later, with the economic crisis in 1929-1932, there was a massive return of Mexicans, accompanied by greater development of
6

During the Chicano Movement of the 1960s, New Mexico land rights leader Reies Lpez Tijerina, and his group Alianza, invoked the Treaty of Guadalupe Hidalgo in their struggle to regain the lands stripped from Mexicans during that time. In 1972, the Brown Berets, an organization of young Latino activists, also invoked the treaty when they temporarily took over Catalina Island. With regard to land ownership, many of the previously mentioned land grants were not recognized by the United States. In California, nearly twenty-seven percent of them were rejected; in New Mexico, 76 percent were rejected. 7 Remedios Gmez Arnau, Mxico y la proteccin de sus nacionales en Estados Unidos (Mexico, UNAM-CISEUA, 1990) 229.

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consular protection. Beginning in those years, the Mexican Foreign Office strengthened its supervisory functions in this area and the consulates were asked to report more frequently and in greater detail regarding this matter. Similarly, there was an important change in the methodology for detecting protection cases, instituting the need for consular representatives in the United States to carry out, for this purpose, visits to the places within each of their districts where they were likely to find Mexicans in trouble, such as immigration detention centers, jails and hospitals.8 The Bracero Agreements, which were in effect between Mexico and the United States from 1942 to 1964, brought about a growth in the flow of Mexicans emigrating to the North, not only within the framework of the Bracero Agreements, but also without documents. We must remember that one of the reasons for the Bracero Program was that World War II was going on. As U.S. workers joined the Army, the U.S. economy required labor to cover the rest of its production activities, especially agriculture. That is, Mexicos collaboration, directly or indirectly, served as an escape valve for the problems faced by the U.S. economy. Thus began the interest in hiring cheap, temporary labor, only for the duration of the wara situation that could be analogous to the recent deployment of Mexican-American soldiers to Iraqi territory. Many of the Mexicans who emigrated during that Bracero period, however, remained in U.S. territory. This created an obvious need to increase and strengthen the Mexican governments protection work. Since that time, there has been constant attention from the Mexican government, which in 1980 led to the creation, for the first time, of an administrative unit within the Secretariat of Foreign Relations devoted exclusively to dealing with all matters related to the function of protection of citizens abroad. The creation of the General Directorate of Protection, and the subsequent allocation of human, material and financial resources, as well as greater control and planning, in this sense, can be considered proof of the political interest that the Mexican government had then in strengthening of protection for Mexicans abroad.9
8 9

Loc. cit. Loc. cit.

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It must be mentioned that in the 1980s, Foreign Ministry Legal Advisor Alberto Szekely had a magnificent idea that he put into practice. Four Legal Centers were created in the United States where attorneys specializing in U.S. law were stationed; they advised the consulate itself, in the region that corresponded to them on the U.S. map, in cases involving Mexican citizens. During the following year, the protection of Mexicans went through periods of less attention, as well as other periods of strengthening and institutionalization, reflecting, at times, national political and economic circumstances, and at other times, immigration policies carried out in the United States. For example, in 1985, due to budgetary adjustment measures, the General Directorate of Protection was transformed into the General Directorate of Protection and Consular Services. That is, this new administrative unit was charged with dealing with both the area of protection and that of consular services provided by the Mexican government, which translated into a limitation on the impetus for the work of protection.10 However, the Mexican reaction on this issue, given the economic crisis and its consequences, would have long-term positive effects. The economic crisis stimulated initiatives against illegal immigration to the United States, since there was a great fear on the part of the Mexican government of a possible exodus of workers to the North. On the other hand, this reinforced the U.S. position of acting unilaterally, as demonstrated by the number of U.S. government initiatives to control undocumented immigration, within a very intensive legislative process, that later would culminate in the IRCA (Immigration Reform and Control Act of 1986). With regard to the perception of the Mexican government, not only were there fears of the effects of U.S. laws passed between 1982 and 1984, but the greatest concern was the potential mass expulsion of Mexican nationals. This led, in Mexico, to a wide-ranging debate on preventive measures to confront this possibility. In this sense, the adoption by the Mexican government of a new development strategy in the 1980s promised to end the causes of the economic crisis, that is, the trigger for the increase in Mexican immigration to the United States.11
10 11

Ibid., 230. Francisco Alba, Crisis econmica de 1982 en Mxico, Estudio binacional Mxico-Estados Unidos sobre migracin (Mexico, SRE, 1999, Vol. VIII) 102.

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Despite the foregoing, one of the most important developments in Mexican immigration policy occurred during this decade, when there began a change of attitude on the part of the Mexican and U.S. governments regarding Mexican migration to the United States. For much of the twentieth century, although Mexico never stopped taking action to confront Mexican migration to the North, its government was, basically, nothing more than an observer of U.S. immigration policy and the problems resulting from the immigration phenomenon. That is, Mexicos sphere of influence for controlling migratory flow was limited, due to the greater decisionmaking power of its powerful northern neighbor. The U.S. perception toward Mexicans entering its territory, however, also began to change. Joint efforts between the two governments such as the Bracero Program (1942-1963)contributed to changing the U.S. governments position with regard to the problem. For example, a bi-national study conducted in 1997 demonstrated part of the responsibility that the United States shares with Mexico in the causes of migration; this study recommended, in part, the advantages of a bilateral approach to this complex phenomenon. Therefore, given the recognition of the impossibility of confronting the problems caused by immigration alone, the U.S. government began to show, at least temporarily, a great willingness to cooperate with Mexico in seeking solutions to immigrationrelated problems. Thus, despite the continuing differences in Mexico and U.S. perception of the immigration phenomenon, there was a recognition of certain shared interests, which brought about bilateral cooperation. As a result, several bilateral initiatives were created to deal with immigration problems and coordinate the efforts of the governments involved in the issue.12 During the term of President Carlos Salinas de Gortari (19891994), the consuls undertook intensive work in the areas of protection, promotion and issuance of consular documents. In order to coordinate their functions, consul meetings were held to define strategies to follow in these areas. Additionally, there were efforts to establish an infrastructure that would allow the consuls to
12

Quetzalli Kalinka Padilla Dulch, Cambios en la poltica migratoria mexicana en el marco de la institucionalizacin de la relacin Mxico-Estados Unidos 1982-2000, (thesis, Mexico, El Colegio de Mxico, 2002) 123.

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devote most of their time to performing effective tasks of protection and to simplify, to the extent possible, related tasks, such as preparation of reports and other administrative tasks. In order to accomplish this, there was a significant budgetary effort to equip the consulates with functional buildings, new vehicles, computer equipment and modern communication systems.13 Likewise, the North American Free Trade Agreement (NAFTA) was signed; it sought, initially, to improve living conditions in Mexico in order to discourage emigration to the North. It is difficult to measure the impact that NAFTA has had in attaining this goal, but it can be said that at least it contributed to an institutionalization of MexicoU.S. relations. That is, there was an increase in contacts between government officials of the two countries, on different levels and involving all three branches of government, in addition to the compartmentalization14 of the relationship, which facilitated bilateral work on the topic of immigration.15 During the following administration, that of Ernesto Zedillo (19942000), Mexican immigration policy continued to become more active in negotiating with the U.S. government the creation of
13

In this way, existing consular offices, and others that were opened as a result of the diversification of Mexicos foreign policy, dealt with cases of guidance and advice, location of persons, repatriation of minors, indigents or the sick, obtaining child support or maintenance payments, visiting Mexicans in jails and detention centers, claiming employment benefits on behalf of migratory workers and intervention in labor disputes, participating in complicated civil, family and criminal jurisdictional cases. In addition, the development of a program that has colloquially been called mobile consulate was also brought about; it consists of taking certain consular protection and document issuance services to the heart of the Mexican community, thus obviating the need for our citizens to travel very long distances to reach the cities where the consulates are located, missing days of work and, as a result, of pay. With regard to preventive protection, a brochure was prepared, written in simple language, aimed at migratory workers, which is distributed by Secretariat of Foreign Relations offices in Mexico and also by Mexican consulates in the United States, in which migrants are warned of the dangers they face when trying to enter the United States without documents. They are also given information regarding the services provided by the Mexican consulates. Eduardo Ibarrola Nicoln, La function consular: actualidad y perspectivas, Revista Mexicana de Poltica Exterior, 44 (1994) 65. 14 The term compartmentalization is used to describe that diplomatic relationship in which different topics are handled separately, seeking to prevent conflicts in one area of the relationship from contaminating or hindering progress in another area. 15 For an analysis of this development, see Quetzalli K. Padilla Dulch, op. cit., passim.

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a number of mechanisms whose goal was to administer the problems arising from the immigration phenomenon.16 That is, a new vision was agreed upon, in which each one of the governments took responsibility for causing migratory flows, as well as the fact that the immigration of Mexicans cannot be stopped, but indeed the conflicts arising from it can be reduced. In the specific area of protection, the Program for Mexican Communities Abroad should be mentioned; this program connected the government with the Mexican community in the United States, as well as collaborating with different Chicano or human rights associations. Likewise, the Beta Group sought to reduce accidents and deaths of Mexicans attempting to cross illegally into the United States in high-risk areas. President Vicente Foxs administration continued some of the developments that occurred during the previous administrations to complement the work done by the Mexican consulates in the United States. Early in his term, a special office was named, which reported directly to the president, for the connection with Mexicans abroad; subsequently its functions were incorporated into the Institute of Mexicans Abroad.17 It is important to stress that in the National Development Plan (20002006), protection of Mexicans residing outside the country was specifically included within the pillars of foreign policy, as is made clear below:
16

Some of them, such as the Border Liaison Mechanism and the Border Governors Conferences, focused on the problems of violence occurring on the U.S.-Mexico border. 17 Foreign Relations Secretariat. Covers the functions of the Presidential Office for Mexican Communities Abroad and the Program for Mexican Communities Abroad; it has an Advisory Council made up of 152 members, representatives of the Mexican and Mexican-American community in the United States. It is the functional arm of the National Council for Mexican Communities Abroad, headed by the President of the Republic and made up of the Secretaries of Foreign Relations; State; Agriculture; Livestock; Rural Development; Fishing and Nutrition; Economy; Treasury and Public Credit; Public Education; Social Development; Labor; Health; Tourism; and Environment and Natural Resources. Since 1990, the Foreign Relations Secretariat orchestrated the Program for Mexican Communities Abroad, which brought about the connection of those communities with Mexico, as well as their development with regard to health, education, sports, culture and community organization. The next phase was announced on August 6, 1990 before representatives of the Mexican communities abroad; the National Council for Mexican Communities Abroad, the Institute of Mexicans Abroad (IME) and the Advisory Council of the IME were installed, with the goal of strengthening the Mexican governments institutional capacity to carry out policies of rapproachement with this population.

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The second pillar is the attention to and defense of Mexicans abroad. [Through a firm commitment and increased resources, President Foxs government seeks to support and defend] our fellow countrymen who have chosen to earn their livelihood beyond our borders [especially in the United States. The means of achieving this objective are] legal assistance, consular support and negotiation with the authorities in order to improve their living conditions.18

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Thus, we see how, since the 1980s, the Mexican governments task of protection, especially through Mexicos consular delegations in the United States, has been becoming one of the priorities of the Mexican government. This work is focused on three areas: first, assistance to Mexican migrants in cases of deportation or expulsion from the United States; second, claims for unpaid salaries that Mexican workers are not able to handle personally; and finally, the issue that concerns us here, providing legal counsel to Mexicans who are imprisoned or under criminal proceedings in the United States, such as death penalty cases.
MEXICAN LAWS AND CONSULAR PROTECTION

A brief study of Mexican foreign policy laws can provide us a vision of how the work of protecting Mexicans abroad has been strengthened within the priorities of the Mexican government. The laws, regulations and decrees under which the Mexican Foreign Service operates have been developing ever since Mexico first became an independent country. It is obvious that as a newly independent country, the Mexican governments priority was not protecting its citizens abroad, but instead promoting and ensuring successful foreign trade. With this objective, during the administration of Vicente Guerrero, the first Foreign Service Law was enacted October 31, 1829, establishing the general and special delegations and the consulates as representatives of Mexico. With regard to the consulates, it established the consulates general, the individual consulates and the vice con18

Speech by Secretary of Foreign Relations, Dr. Luis Ernesto Derbez, in the 110th Assembly of the Inter-Parliamentary Union, April 23, 2004.

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sulates, all of them with the principal objective of protecting international trade. Subsequently, during the administration of President Valentn Gmez Faras, the first Law regarding the Establishment of Consulates was enacted February 12, 1834. It specified some aspects with regard to consulates that were previously referred to in the Foreign Service Law of 1829. This law stressed the powers and benefits of the Mexican consular agents appointed abroad. Additionally, it provided for the establishment of the consulates general, the individual consulates and the vice consulates that the government deemed appropriate, as well as for the protection of foreign trade. The first time, then, that the task of protection of Mexican citizens appeared in legislation was during the rule of Agustn de Iturbide. The second resolution of the Iturbide government was the Organic Law of the Consular Corps of the Mexican Empire, enacted August 12, 1865. It specified the traditional duties of protecting trade and Mexican citizens. The next development in consular matters occurred almost forty years later, on September 16, 1871, when the Regulations of the Law regarding the Establishment of Consulates of 1834 were enacted. When the Republic was restored, the government sought to combine all current regulations in a single legal document. In this way, and in order to communicate the way the consular agents were to exercise their functions, and thus facilitate the exercise of their powers, the Secretariat issued rules for the Consular Corps as provided in Article 11 of the February 12, 1834 law on the establishment of Consulates. These regulations, the first in the nation, laid the contemporary foundations for the exercise of the consular function; they benefited the country in its first trade promotions and were initiating its other main responsibility, which is that of protecting Mexican nationals. The functions of the Consular Corps were very precise and repeated the provisions of the 1834 law: promoting trade; providing protection to Mexicans; instructing the Government on matters of interest; earning the respect of the authorities and residents of the consular district where they exercise jurisdiction. Nevertheless, there was still no clear regulation of the characteristics of the consular institution. Surprisingly, this legal void was filled just at a difficult time for the Mexican government, almost at

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the beginning of the Revolution. The Foreign Relations Secretariat managed to issue the Mexican Consular Service Act of November 11, 1910, which repealed the February 12, 1834 law regarding the Establishment of Consulates. This Act granted a new dimension to the Mexican consular institution and established the bases of Career Service, which in turn granted privileges to its agents and placed them on a par with diplomats in their functional and institutional evolution and development. In order to regulate this law, the Regulations to the Mexican Consular Corps Act were enacted March 12, 1911. The Presidency of the Republic issued regulations under which the Mexican Consular Corps would operate. It is an extremely extensive, innovative and descriptive regulatory framework, consisting of more than 325 pages, divided into fifty-three chapters and 813 articles, in addition to those regarding the consular institution contained in treaties in effect between Mexico and Germany, Austria-Hungary, Belgium, China, Denmark, Dominican Republic, Ecuador, France, Great Britain and Ireland, Honduras, Italy, Japan, Nicaragua, Netherlands, Persia and El Salvador. The Regulations repeat the law establishing the General Directorate of Consulates enacted December 16, 1910. The important part of this provision is its explicit broad scope with regard to the support that the consuls are to provide to citizens with the local foreign authorities, especially in legal matters and complaints. Also regulated are matters of repatriation, placing limits on relief. By the time of the Revolutionary governments, we find important laws in the area of protection. One of them is the Mexican Consular Corps Act, enacted January 9, 1923 during the administration of lvaro Obregn. This law establishes as priorities of the Mexican Consular Corps the promotion of trade and the protection of the rights and interests of the government and of Mexicans abroad. Additionally, on October 25th of that same year, regulations for this law appeared. In these regulations, new provisions for the functioning of consulates and the performance of their agents were established. During the brief presidency of Abelardo Rodrguez, a new law was enacted. On this occasion, for the first time in history, the diplomatic and consular branches were included as part of a single Foreign Service. In this way, with the Mexican Diplomatic and Consular

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Corps Foreign Service Law, enacted January 25, 1934, the door was opened for the Foreign Service to develop in two parallel branches. In its regulations, issued April 30th of the same year, the previously established objectives of the Mexican Foreign Service were determined. The mission of the consular head in promoting trade and protecting nationals was again ratified, with greater specificity regarding the procedures that he was to carry out. An innovation was the decision that Foreign Service officers could perform the functions of migration inspectors in order to aid Mexicans abroad. Six years later, on November 12, 1940, when General Lzaro Crdenas was constitutional president, the Internal Regulations of the Secretariat of Foreign Relations was enacted. Without a doubt, it already reflected a structure and wording closer to contemporary regulations. With the administrative restructuring required by these regulations, the new departments into which the Secretariat would be divided came into being. There would be twelve of them: Private Secretariat of the Secretary; Private Secretariat of the Undersecretary; Administrative Department; Diplomatic Department: Diplomatic Missions; Ceremonial; Consular Department; Consular Offices; Legal Department; Mexican Section of the International Borders Commission; Mexican Section of the International Commission on Water; Office of Coordination; Library and Publications. In turn, the Consular Department was subdivided into the areas of: Protection; Successions and Indemnizations; Consular Staff; Passports and Legalizations; and Foreign Trade. With regard to the Mexican Foreign Service Act, the most recent legislation regarding it was that of 1934; therefore, modifications became necessary in light of the developments that the country was displaying in the international arena. Thus arose the Mexican Foreign Service Act of December 23, 1966, published in the Diario Oficial de la Federacin on March 4, 1967. It specified that the Foreign Service is the permanent organization of the Mexican government assigned to safeguard national interests abroad and to represent Mexico before international governments or forums. The conceptual definition process within which this document is framed clarifies what is meant by diplomatic mission. In this regard, it states that these are called Embassies, and that the consular missions are called Consulates.

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On September 18, 1975, when Lic. Luis Echeverra lvarez was Constitutional President and Lic. Emilio O. Rabasa was Foreign Secretary, new regulations were issued for the Secretariat, repealing all prior provisions in this area, including the regulations issued thirty-five years earlier. These regulations presented an organization of the Secretariat that, although it included some elements of the previous one, introduced new features, such as the creation of a new Undersecretariat, that split functions with the first one, the new office of the directors in chief, who were to respond according to the regulations, the general directorates, including the creation of the Matas Romero Institute for Diplomatic Studies. This is how the Secretariat became organized in the following manner: a secretary; an undersecretary of International Economic and Multilateral Affairs; an undersecretary of Legal Bilateral, Consular, International Border and Water Affairs, a chief clerk, a legal consultant, a director in chief of Bilateral, Consular, International Borders and Waters Political Affairs, a director in chief of International Organizations, a director in chief of International Economic Affairs, a director in chief of Cultural and International Technical Cooperation Affairs, a director in chief of Legal Affairs. Likewise, 13 General Directorates were establishedsome of which already existedamong them a General Directorate of the Diplomatic Service and another of the Consular Service. The General Directorate of the Consular Service was to direct the work of the consular delegations; participate in consular technical aspects in the training programs for Foreign Service personnel; coordinate tourism promotion, trade exchange, and cultural diffusion of the consular delegation; and other traditionally contemplated duties. The administration of Jos Lpez Portillo was characterized by the repeated issuance of internal regulations. The first were issued September 20, 1977, repealing the 1975 ones that had been amended in 1976. The Secretary at the time was Santiago Roel Garca. In the first place, it was established that the functions of the Secretariat follow the Political Constitution of the Mexican United States and the Federal Public Administration Act (LOAPF), among other laws. A third undersecretariat was created, and other changes were made to the structure of the organization. Among them, the former Directorate in Chief of Bilateral Political, Consular and Bor-

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der Affairs changed its name and was called simply Political Affairs. In the second set of regulations issued under the Lpez Portillo administration, issued March 16, 1978, the organizational structure was again modified to allow for a fourth undersecretariat, but there were no changes in the consular functions. The third Internal Regulations of the Secretariat, issued during this administration, appeared under the leadership of Secretary Jorge Castaeda A. on October 15, 1979. Restructuring continued to be a constant, now due to the replacement of the Foreign Secretary, who began to establish a new order in the Foreign Office. In the fourth year under Lpez Portillo, another set of regulationsthe eleventhwas issued November 21, 1980. The difference in these regulations was the inclusion of the General Directorate of Protection, which was assigned the task of formulating guidelines for the protection of Mexicans abroad; planning of objectives and goals of the program for protection of Mexican citizens abroad; assignment to the General Directorates of the bilateral and multilateral areas of cases involving violations of fundamental human rights or breach of International Conventions and Treaties that harm Mexican nationals; supervision of the program of protection of migratory workers; arranging repatriations; and others. Likewise, it included the General Directorate for Passports and Consular Services, and discontinued the Directorates of Conferences and Autonomous Organizations, and also the General Directorate of International Borders and Rivers. During the Jos Lpez Portillo administration, there was an attempt to add new elements to the Foreign Service Act of 1966, which had revised and replaced the Mexican Consular and Diplomatic Corps Foreign Service Act of 1934. Thus arose the Mexican Foreign Service Act on December 30, 1981. In 1982, a necessary and long overduereform was done to the Mexican Foreign Service Act Regulations, since almost half a century had passed with no modification to the Regulations to the Mexican Consular and Diplomatic Corps Foreign Service Act of 1934. In the Regulations to the Mexican Foreign Service Act of July 16, 1982, published in the Diario Oficial de la Federacin on July 22, 1982, the duties of the members of the Foreign Service are specified, with an emphasis on those regarding protection.

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In the Internal Regulations of the Secretariat of Foreign Relations, issued by President De la Madrid on August 22, 1985, some changes occurred. Among them, the general coordinator offices disappeared, and the number of general directorates was reduced to twenty-one, given that the directorates of passports, consular services and protection were merged into Consular Protection and Services. Under the administration of Carlos Salinas de Gortari, the 14th Internal Regulations for the Secretariat of Foreign Relations were issued January 23, 1989. The changes were few, and, in many cases, the only change was the name of the administrative unit. The name of the Directorate of Protection and Consular Services was changed to just Consular Affairs, thus eliminating one of its functions, which was to propose, develop and execute, in coordination with other administrative units, the program of distribution of passport issuance and other consular services (including the opening and closing of Secretariat of Foreign Relations offices). During the administration of Salinas de Gortari, on December 16, 1993, the Foreign Service Law was issued, repealing the 1982 Law. Its main attribute is greater precision with regard to the three kinds of Foreign Service personnel: career personnel, temporary personnel, and subcontractors. A fundamental distinction was drawn within career personnel, previously divided into diplomatic, consular and administrative branches. With this reform, the diplomatic and consular branches were merged into a single one, while the other branch became technical-administrative. With the diplomaticconsular branch now a single entity, its categories had to be standardized, thus eliminating the consular nomenclature. At the end of the Carlos Salinas de Gortari administration, on March 11, 1993, new regulations were issued for the Secretariat, in accordance with the situation in the country, especially given the anticipated signing of NAFTA. In NAFTA, a new Directorate for Mexican Communities Abroad appeared; among its functions was that of supporting the formation of organizations that would coordinate Mexican communities abroad, improving their image, encouraging their accurate, continuing knowledge of Mexican reality; improving connections among Mexican groups and communities abroad, in the areas of promotion of business, tourism, culture, education, sports, civil and social activities; participating with other

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departments in negotiating, carrying out and overseeing programs with Mexican communities abroad; reporting to other departments on matters of specific interest that are in process before the agencies within their jurisdiction; formulating suggestions, initiatives, studies and recommendations in order to contribute to the development of foreign policy; and others. Another set of internal regulations was adopted August 25, 1998. During the Vicente Fox administration, on August 8, 2001, new International Regulations were issued for the Secretariat of Foreign Relations. Regarding consular protection, three new functions were added to the General Directorate for Protection and Consular Affairs: First, that of participating, in coordination with the appropriate authorities, in the design and international implementation of Mexicos migration policy; second, carrying out the functions resulting from its designation as the central authority in implementing international treaties and accords regarding adoptions, abduction of minors and child support and that of coordinating the measures of simplification, technological modernization and administrative deregulation that would tend to improve efficiency in providing consular and migratory services offered by Mexicos delegations abroad. Finally, the subsection referring to preparing the administrative training program for protection and consular affairs in coordination with the appropriate administrative units of the Secretariat was eliminated. The General Directorate of the Program for Mexican Communities Abroad stressed functions such as contributing to improving the standard of living and quality of life of Mexican communities outside the country; reinforcing in Mexicans abroad the love for their roots, identity, culture and interest in strengthening their ties with Mexico and their communities of origin: obtaining, analyzing and systematizing information that allows for the designing of policies of strengthening and expansion of attention to communities abroad; serving as a link with Mexican organizations abroad through consular delegations, among others.19
19

The account of Foreign Service Laws and Regulations, especially those regarding the Consular Service, and their descriptions were taken verbatim from: Hermilo Lpez Bassols. Tratado de Derecho Diplomtico y Consular (Mexico, Porra, 2003).

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The decree creating the Institute of Mexicans Abroad was published in April 2003. Due to its importance, it is appropriate to include its key articles: ARTICLE 1The Institute for Mexicans Abroad is created as a decentralized administrative entity of the Ministry of Foreign Affairs. ARTICLE 2The goal of the Institute for Mexicans Abroad will be to promote strategies, create programs, collect proposals and recommendations from the communities, its members, its organizations and advisory bodies that contribute to improving the living standards of the Mexican communities abroad, and to implement the instructions issued by the National Council for the Mexican Communities Abroad. ARTICLE 3The Institute of Mexicans Abroad will have the following attributes: I. To promote both a reevaluation of the migratory phenomenon and the dignified treatment of Mexicans who live abroad; II. To encourage the creation of meeting places and promote communication with and among the Mexican communities abroad; III. To act as liaison in coordination with Mexicos diplomatic offices with the Mexican communities abroad; IV. To establish adequate coordination with the state and municipal governments, institutions and organizations involved with assisting the Mexican communities abroad and with other related and complementary issues. V. To design and promote mechanisms to implement programs and projects that pertain to the work of the Institute for Mexicans Abroad; VI. To organize and participate in seminars, conferences, symposiums, colloquia and public, private and academic congresses related to migration and issues involving Mexicans abroad; VII. To gather and systemize proposals and recommendations for improving the social development of the Mex-

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ican communities abroad submitted by advisory boards made up of representatives from these communities, and VIII. To carry out the other functions that this decree and other legal instruments confer upon the Institute for Mexicans Abroad or the Foreign Ministry that are related to those set forth in the previous paragraphs as well as those functions given it by the Foreign Secretary. ARTICLE 4The Director of the Institute will be named by the President of Mexico at the suggestion of the Secretary of Foreign Affairs. ARTICLE 5The Director of the Institute will have the following functions. He will: I. Draw up the plans and programs of the Institute for Mexicans Abroad; II. Formulate the draft programs and budgets for the Institute for Mexicans Abroad in conformity with the applicable directives; III. Coordinate activities that benefit the Mexican communities abroad through the diplomatic and consular network of the Mexican government; IV. Coordinate and participate in the meetings of the advisory groups that are created; V. Implement the policies and directives defined by the President or the Secretary of Foreign Affairs; VI. Participate in the commissions and boards to which the Foreign Ministry is party in the area of expertise of the Institute for Mexicans Abroad; VII. Coordinate and promote institutional actions in those areas that contribute to strengthening and developing the communities abroad in coordination with the agencies of the federal executive branch of government; VIII. Promote and participate in coordinating with the governments, institutions and organizations of the states and municipalities and the private sector programs and actions that benefit migrants; IX. Participate in actions that benefit migrants in coordination with the public and private offices that assist Mexican migrants;

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X. Collaborate and participate in the various programs of the federal government that benefit the Mexican communities abroad; XI. Participate in federal programs and actions that are designed to obtain and provide information on issues of interest related to the communities abroad; XII. Formulate and propose public policies to the National Council for Mexican Communities Abroad based on the needs, opinions and concerns expressed by the Mexicans residing abroad, and XIII. Carry out any other functions that this decree and other legal instruments confer upon him or upon the Foreign Ministry that are related to those indicated in previous paragraphs or entrusted to him by the Secretary of Foreign Affairs.20 THE SITUATION OF MEXICANS SENTENCED TO DEATH IN THE UNITED STATES In order to understand the issue of Mexicans sentenced to death in the United States, it is necessary to do a brief review of executions of Mexicans carried out during the twentieth century, and their consequences for the Mexican governments protection work. It is to be noted that prior to 1993, there had been only two executions of Mexicans in the United States, both in Texas: that of Agapito Rueda in 1924 and that of Emiliano Benavides in 1942, both by electrocution.21 The first execution of a Mexican by lethal injection occurred on March 25, 1993 in the maximum-security prison in Huntsville, Texas.22 Ramn Montoya Facundo, convicted of killing a police officer, was not allowed to receive consular assistance for more than
20 21

Translators Source <http://www.ime.gob.mx/>. The performance of these executions without the Mexican government being able to prevent them could be explained by the historical context in which they occurred. In the first place, in 1924, not only were there no diplomatic relations between Mexico and the United States, but also Mexico was awaiting State recognition by its northern neighbor. In 1942, U.S. concern must have been focused on World War II and not on resolving less urgent issues with its neighbor. 22 This execution, carried out at the Ellis I Prison in Huntsville, was the fifty-eighth execution conducted by the state of Texas since the U.S. Supreme Court reinstated the death penalty in 1972.

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ten years. When the Mexican authorities learned of the case, the appeal deadline had passed, and the only option was a petition for clemency to the Board of Pardons, which refused to intervene.23 This is a fact that must be taken into account in order to be able to understand the significance of the Avena case in the protection of Mexicans sentenced to death; this case will be analyzed below. The execution of a Mexican in the United States, for the first time in more than fifty years, provoked widespread national repudiation. The Mexican pressin more than 100 articlesdescribed the action as barbaric and brutal, practiced only by savage, uncivilized peoples. Likewise, statements by Secretary of Foreign Affairs Fernando Solana and President Carlos Salinas de Gortari, condemned the practice as violating the most fundamental of human rights: the right to life.24 The positive feature of this protest was to make public the possibility that Mexicans citizens could be sentenced to the death penalty in the United States and the existence, in fact, of a considerable number condemned in the following years, that would result in growing organization of civil society and Mexican authorities to provide help to them. For example, by June 30, 1998, there were thirty-nine Mexican citizens on death row in ten U.S. states, distributed as follows: the largest number in California and Texas, each state with fourteen; three in Arizona; two in Illinois; and six others, each in a different state (Arkansas; Nevada; North Carolina; Ohio; Oklahoma and Oregon).25 One year later, in 1999, official statistics of the Secretariat of Foreign Relations reported that there were now forty-two Mexicans sentenced to death in the United States. This figure constituted a little more than 1 percent of the total on death row in 1999, approximately 3000. Of this total, only seventy-one, or 3.2 percent, were foreigners. Of the foreigners, more than half were Mexicans, imprisoned in nine states: seventeen in California; sixteen in Texas; two in Arizona; two in Illinois; and five more in other states (Arkansas Nevada, Ohio, Oklahoma and Oregon).26
23 24

Jorge Cisneros, Diversas anomalas, El Universal, 6 Dec 2004: A25. Francisco Gonzlez de Cosso, art. cit., p. 102. 25 Rodolfo Quilantrn Arenas, La pena de muerte y la proteccin consular (Mexico, Plaza y Valds, 1999) 76. 26 Boletn de Prensa (Secretara de Relaciones Exteriores, Mexico, 1999).

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That same year, the consular services of the Secretariat of Foreign Relations followed eighty-three cases of Mexicans whose crimes could be punishable by death in the following states: Illinois (36), Arizona (12), California (12), Texas (7), Oregon (4), North Carolina (3), Michigan (3), Florida (2), Colorado (1), New York (1), Utah (1) and Washington (1). Some of the Mexicans were originally from the following places: Aguascalientes (1); Baja California (5); Coahuila (1); Colima (1); Chihuahua (6); D.F . (1); Durango (4); Guanajuato (3); Jalisco (4); Michoacn (5); Morelos (1); Nayarit (1); Nuevo Len (2); San Luis Potos (1); Sinaloa (3) and Tamaulipas (3).27 Regarding these figures, it is easy to observe that the majority of these convicts were originally from Mexican states closest to the U.S. border, a reflection of the significance of the connection between border cities and the cross-border flow of that time, when the circumstances for crossing were not as difficult as they are now. This is also evidence that the places with the highest indices of migration to the United States during those yearstraditional migration were Jalisco, Michoacn and Guanajuato. As has been pointed out in the previous chapters, Texas is the U.S. state with the largest number of executions since 1982. In the period from 1982 to mid-1997, 122 people were executed, most of them being Anglo (61), followed by African Americans (42), Hispanics (18) and one Asian. The Mexicans executed during this time period in Texas were Ramn Montoya Facundo (1993) and Irineo Tristn Montoya (1997).28 The case of Ramn Montoya Facundo was analyzed above, emphasizing the fact that this executed prisoner did not have the consular assistance of vital importance to his defense, which is considered a right of detainees under Article 36 of the Vienna Convention on Consular Relations of 1963, a multilateral accord signed by both Mexico and the United States. This violation of an international treaty is of vital importance, because of having occurred in the
27 28

Loc. cit. For purposes of comparison, it is important to point out that up until 1995, eightyfour executions had been carried out in Texas, while in California there were only two, and 242 in the entire United States. This meant that 34 percent of all executions were conducted in Texas (Francisco Gonzlez de Cosso, art. cit., 109).

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cases of Mexicans executed in the United States; the terrible question remains of whether these executions could have been prevented. For example, in the case of Irineo Tristn Montoya, executed in Texas in 1997, the violation of Article 36 is clear. After being interrogated without an attorney and without consular assistance, the Mexican signed a four-page statement in English, a language he did not know or understand, through which he was convicted as coperpetrator of a murderwhile the main murderer was sentenced to life in prison. At that time, the U.S. State Department contacted the government of Texas, which responded that Texas had not signed the Vienna Convention on Consular Relations.29 The case of Mario Benjamn Murphy is similar, except that he was executed in Virginia that same year, having been denied the right to contact the consulate. He was the only person executed, and the only foreigner, of six who murdered a naval officer. When asked about the irregularities that had occurred during the trial, the state attorney general said that he had never heard of the Vienna Convention, and the prosecutor stated, He didnt think Mexico would declare war over it.30 More recently, we find the case of Javier Surez Medina, executed in Texas in 2002. Born in Piedras Negras, Coahuila, this Mexican was three years old when he came to the United States with his mother, who was looking for work. In 1988, when he was nineteen years old, he killed a DEA agent with six gunshots during a raid in Dallas. When he was detained, there was no communication with the Mexican authorities, because they didnt know he was Mexican, which is an incredible contradiction, since whenever anyone is detained, in addition to asking for identification, they verify the persons immigration status. Sentenced to die in 1989, his execution was postponed fourteen times. At the age of thirty-three, a lethal injection finally ended his life, as his mother, stepfather, sister and nineteen friends and relatives watched. His mothers campaign I want to touch everyones hearts did no good, nor did her tears; nor did the letter of UN Human Rights Commissioner Mary Robinson, nor did the formal protests of fourteen countries, various NGOs,
29

Mnica Gonzlez, El nmero cinco: Javier Surez Medina, 8 Feb 2005 <www.ccm.itesm.mx/noticias/encomun/penamuerte.html>. 30 Loc. cit.

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such as Amnesty International, nor did the executive petitions from the Mexican government, which we will discuss further below.31 In early 1995, eight of the twenty-three Mexicans sentenced to death in the United States were imprisoned in the maximum-security prison in Huntsville, Texas, ninety miles north of Houston. Although the crimes for which they were convicted had been committed in different areas of the state, the fact that death row was near Houston meant that the main monitoring of their cases by the Mexican government would fall within the jurisdiction of the Mexican Consulate General in Houston.32 That is, the consulate in Houston was in charge of coordinating the procedural stages regarding Mexicans sentenced to capital punishment in Texas. From the review of the cases of the nine Mexicans on death row in Huntsville as of December 31, 1994, it can be concluded that the actions of the consulate in Houston were key elements, as in the past, in reporting and reversing various irregularities that occurred during the proceedings.33 On April 8, 2007, there were fifty-five Mexicans sentenced to death in the United States, in addition to 104 Mexicans being prosecuted for capital crimes. In this sense, consular relations with U.S. authorities should be strengthened to better protect Mexicans on death row. THEWORKOFTHE MEXICANGOVERNMENT INTHE PROTECTION OF MEXICAN CITIZENS SENTENCED TO DEATH IN THE UNITED STATES The Mexican governments work in protecting its citizens sentenced to death in the United States has not been, at all, like the rest of its protection work, a situational matter. That is, it has not responded to the interests of a certain administration, but completely the contrary; there has been a continual evolution of the mechanisms utilized by the Mexican government in this regard, especially in the last two decades, thus becoming consolidated into a government policy.
31 32

Loc. cit. It is important to clarify that the concentration of those sentenced to death in Huntsville was due only to budgetary reasons, given that these kinds of jails require a maximum-security system significantly more costly than that of a conventional penitentiary. 33 Francisco Gonzlez de Cosso, art. cit., 108.

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When the death penalty was first reinstated in the United States in the 1960s, it is obvious that the Mexican government had neither the legal nor the political weapons to defend its condemned citizens. However, over time, it began to develop strategies that have been increasingly effective, although there are still a number of very complex problems within the U.S. judicial systemi.e. the oftenintransigent position of the state authorities in charge of imposing the death sentence, a determination that in no way facilitates our task. It can be said that Mexico has adjusted to the times, having caused the U.S. authorities, in a way, to be more careful about how they proceed. That is, the careful vigilance and monitoring that the Mexican authorities have provided in the cases of Mexican sentenced to death have served as a counterweight aimed at preventing indiscriminate actions by U.S. state and federal authorities. As a result of the execution of Ramn Montoya in 1993, the efforts of Mexican legal and political actions to protect its citizens sentenced to death in the U.S. increased. There are two fundamental reasons for this. In the first place, as was already mentioned, there was greater openness of information. When public opinion began to be aware of the situation of those sentenced to death in the United States, it raised the awareness of Mexican society, which not only demonstrated its repudiation, but also demanded that the Mexican government demonstrate a much more forceful position toward what it considered a completely unjust act. As has already been pointed out, unlike the United States, despite the fact that the Mexican Constitution, and some state constitutions in Mexico, do include the death penalty for very specific crimes, Mexico, for a long time, has not recognized its utilization as a means of prevention or punishment; that is, the mention of the death penalty served only as a warning regarding the commission of serious crimes. Here it is important to emphasize that in Mexico the prison system is based on the possible rehabilitation of the offender.34 Even more important is the fact that Mexico has signed important international instruments that prohibit the use of the death penalty.35
34 35

Eduardo Ibarrola Nicoln, art. cit., 68. For an example, see Appendix 1-C regarding international laws against the death penalty.

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As a result, we can speak of a humanist tradition favoring abolition of the death penalty.36 The basic argument in support of this position is that respect for life is the fundamental value of people, regardless of the criminal liability with which they may be charged, because without it, no other rights exist. Mexico, like many other nations of the world, rejects the death penalty as a cruel and inhuman punishment, and because its use makes impossible the correction of legal errors if, after it is applied, proof would come to light demonstrating the innocence of the convicted or irregularities in the process.37 This has allowed the Mexican government to oppose consistently the use of capital punishment in other countries, particularly those that intend to execute Mexican citizens.38 Mexicos opposition, however, has always been subject to the absolute recognition of the sovereign jurisdiction of nations. The reason for this is that, throughout its history, Mexico has had to deal with abuses by powerful countries under the pretext of exercising protection of their citizens and interests in Mexican territory. As a consequence, in Article 27 of the Mexican Constitution, as well as in the guiding principles of Mexican foreign policy, such as the Carranza and Crdenas doctrines, Mexico has sought to set clear limits on the rights of foreigners in the Mexican Republic, so that any issues that may arise regarding them and their property on Mexican soil can be handled in the national courts, in accordance with Mexican law, and excluding any foreign diplomatic intervention that may attempt to influence the decisions of the Mexican authorities to the exclusive benefit of the foreigners. Likewise, in multilateral forums, Mexicos representatives have spoken out against abusive diplomatic protection and have advocated instead for peaceful resolution of controversies, always in a context of respect for the sovereignty of each country. On May 11, 1988, an important addition to subsection X of Constitutional Article 89 was published in the Diario Oficial; it in36

Let us recall that Article 22 of our current Constitution until recently provided in its third paragraph: . . . the death penalty remains prohibited for political crimes . . . , and it listed the cases in which it could be imposed, almost all of them being practices relegated to the past, making its use now inoperative. This article attempted to recover the humanitarian heritage of the previous Mexican constitutions and even of that of Cdiz of 1812. 37 Rodolfo Quilantrn Arenas, op. cit., 59. 38 Loc. cit.

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cluded the guiding principles that the chief executive is to observe in conducting foreign policy, and it states:39
Article 89. The powers and duties of the President are the following: I to IX [. . .] To direct foreign policy and to sign international treaties, submitting them to the Senate for approval. In conducting such policy, the Chief Executive will observe the following guiding principles: the self-determination of peoples; non-intervention; the peaceful resolution of controversies; proscription of threats or use of force in international relations; legal equality of States; international cooperation for development; and the struggle for international peace and security.40

Former Foreign Secretary Dr. Emilio O. Rabasa, in a critical evaluation, pointed out, at that time, that the constitutional reform was appropriate because, from the moment it took effect, Mexicos foreign policy was
inexorably subject [to the seven guiding principles], by clear and precise constitutional mandate and not through a treaty obligation. [Therefore], the violation of these principles or the failure to fulfill them would mean, respectively, breaking the Supreme Law or not obeying it. Consequently, international principles would have the highest legal status possible.41

In fact, the foreign policy guidelines contained in numerous international treaties and stemming from the common law practice of the states, take on constitutional status, requiring the Executive, assigned the task of directing foreign policy, to observe them, under penalty of violating the constitutional law. These actions have contributed to the generalized acceptance of the principle that diplomatic protection can be exercised only in cases of denial of justice and only after exhausting local legal resources. So, in contrast to the actions exercised by other countries, the methods utilized by Mexico to protect the interests of its nationals
39

The inclusion of these principles in the Mexican Constitution is, in the opinion of a distinguished professor of international law, a very innovative feature that has a parallel only in the 1977 Constitution of the Soviet Union (Hermilo Lpez Bassols), La solucin de controversias, in Emilio O. Rabasa (Coord.), Los siete principios fundamentals de la poltica exterior de Mxico (Mexico, PRI, 1993) 30. 40 Political Constitution of the United Mexican States, Art. 89-X, 1989. 41 Nota introductoria, in Emilio O. Rabasa, op. cit., 14.

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abroad have been peaceful, respectful of the sovereignty and internal laws of others countries, and have been characterized by being carried out through their consuls rather than through their diplomats, with the goal of assuring, always, the proper respect for the international principle of exhaustion of local resources and using diplomatic action. Additionally, unlike the kinds of interests for which representatives of powerful countries have advocated, which have generally involved foreign possession of property and investments in Mexico, this country has had to protect, in a fundamental way, its migrant work force, mainly those who, since the nineteenth century, have traveled to the United States.42 Therefore, the Mexican government has made clear that its actions on behalf of Mexicans who are or may be sentenced to death, are not intended to pass judgment on the U.S. legal system, but instead to see that the legal proceedings involving Mexican citizens follow the law. In this sense, it is well known that Mexico has no intention of deciding the guilt or innocence of the acts of Mexicans, since that responsibility falls exclusively to the U.S. judicial branch, by virtue of the fact that the crimes were committed in the United States, and Mexico supports unconditional respect for the sovereignty of other States.43 Therefore, what both the Foreign office and the extensive network of Mexican Consulates in the United States44 seek to do is to maintain a policy of supporting Mexicans at risk of being convicted, in order to improve their defense and to stress to the appropriate authorities the importance of respecting a process that could prevent imposition of the death penalty.45 Within Mexican policy, there are several factors that are fundamental to the protection of Mexicans facing prosecution. First, we have the role of the Foreign Office, bolstering its consular per42 43

Remedios Gmez Arnau, op. cit., 227. Boletn de Prensa, (Secretara de Relaciones Exteriores, Mexico, Oct 22, 1996). 44 It is important to note here that while Mexico has almost fifty consulates and related offices in the United States, charged with handling a variety of matters dealing with the interests of its citizens residing there, there are only six honorary consulates in the country, most of them in states with a very low percentage of Mexicans (Alaska, Hawaii, Wisconsin and North Carolina), which deal with very different kinds of subjects, such as business and tourism. The contrast between this type of consulate and the career ones further demonstrates the importance the Mexican government places on the presence of millions of citizens on U.S. soil. 45 Rodolfo Quilantrn Arenas, op. cit., pp. 59 s.

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sonnel with professionals who are specialists in this area. Second, the support of the consulates in selecting defense attorneys, whether through consulting attorneys who provide services to a consulate or hiring firms of attorneys, generally Mexican Americans, for a particular case. Third, the joint work of the consulates with civic organizations devoted to the issue of the death penalty. Fourth, the creation of coalitions comprised of consulates of several countries. For example, it has been shown that the union of Mexican consuls with Central American ones who deal with the same issue, though on a different scale, can be an effective mechanism for sharing legal information. Finally, the position assumed internationally by the affected governments, in this case, Mexico, which represents international pressure on the U.S. authorities. For example, the last time a Mexican was executed in the United States was the case of Javier Surez Medina. The Mexican government launched a strong protest of international dimensions. Texas governor Rick Perry denied Surez a thirty-day staythe only action the governor could authorize without the approval of the parole boardand Surez was executed August 15, 2002. Condemning the execution, President Fox canceled a visit to Texas,46 where he was to have met with his U.S. counterpart, George Bush.47
46

Fox had planned to travel to several cities in Texas and to visit Bushs Crawford ranch August 2628, 2002. This decision is a signal of unequivocal rejection of the execution, said Presidential Spokesman Rodolfo Elizondo at a press conference. It would be inappropriate under these unfortunate circumstances to go ahead with the visit to Texas, and he concluded that Mexico trusts that the cancellation of this important presidential visit will contribute to strengthening the respect, on the part of all States, for the rules of international law and the Conventions that regulate the coexistence of nations. The White House, for its part, responded that the cancellation of the visit would not affect relations between the two countries. 47 As was explained previously, Texas authorities violated Article 36 of the Vienna Convention on Consular Relations. As a result of this violation, not only was the executed Mexican citizen deprived of his right to benefit from the assistance of his country when he needed it most, but also the Mexican government was prevented from providing the priority assistance that might well have influenced the result of the trial. For Mexico, the violation of the right to consular notification in this case seriously affected other basic guarantees of the right to due process of law established in international instruments. This, in turn, resulted in the illegality of the capital sentence imposed on this Mexican. Thus, Mexico had appealed for a stay of execution to allow both U.S. courts and international tribunals, as well as the Texas Board of Pardons and Paroles, to have sufficient time to consider the many violations in the Surez Medina case.

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Likewise, when the Texas governor visited Mexico, he was not received by the president. It is important to highlight, among these factors, the extensive network of Mexican consulates that currently exist in the United States, which are the basic mechanisms for applying the policy of protection of the Mexican community residing there. Without a doubt, it is the most extensive consular network that any country has in another, anywhere in the world. It consists of nineteen Consulates General, twenty-six Career Consulates and one Consular Section located in Washington, D.C.; that is, a total of forty-five offices to which the Mexican community can turn to request protection by its government. These offices are located in the following states: California 11, Texas 10, Arizona 5, Florida 2, New Mexico 1, New York 1, Pennsylvania 1, Nevada 1, Georgia 1, North Carolina 1, Utah 1, Nebraska 1, Oregon 1, Massachusetts 1, Indiana 1, Missouri 1, Michigan 1, Illinois 1, Colorado 1, Washington 1 and Washington, D.C. 1. By way of comparison, it can be pointed out that in the rest of the world Mexico has only sixteen General and Career Consulates, in addition to three Consular Connection Offices in Strasbourg, Calgary and Taiwan, and a Consular Section in the United Kingdom. We feel that it is useful to present a chart showing the location of the eighteen Consulates General in the United States, with the proportion of career Mexican Foreign Service officers carrying out the work of protection and legal matters, as compared to the total career officers assigned to those consulates. Finally, we see that although the defense of Mexicans citizens who have been or risk being sentenced to death is conducted exclusively by the defense attorney, also important are the aid and guidance provided by the Mexican government, through its consulates, at every stage of each prosecution. In the first place, it provides information, advice, and general, including economic, assistance, to Mexican citizens sentenced to capital punishment in the United States, and to their families. In this sense, consular work on behalf of relatives of Mexican inmates facing capital punishment, as well as the visits of Mexican consular officers to those prisoners, is an important part of the help provided. This type of support includes detailed, timely information regarding the legal status of the respective cases, as well as, often, transportation of the

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families of inmates to the respective prisons so that they can visit their relatives,48 and economic aid, among others. In the second place, it promotes appropriate legal defense of Mexican citizens, from locating witnesses and other evidence on behalf of the defendant, to assist the defense attorney, to filing legal petitions (appeal and review), petitions for executive clemency, etc. Additionally, other assistance is provided to the defense attorney as requested. As was already mentioned, the work of the Mexican government has as its main goal respect for fundamental due process. Therefore, when necessary, assistance is sought from nongovernmental organizations49 for filing appeals, or the Foreign Office is asked to present diplomatic notes with different objectives. Additionally, the consulates participate in activities designed to keep the Mexican government informed of the legal progress of the cases of citizens facing the death penalty. We should stress the coordination, not only of the Mexican government, through the Foreign Office, with the Mexican consulates in the United States, but also the coordination of the latter with defense attorneys and organizations that oppose the death penalty, such as the Texas Resource Center and human rights NGOs.50 In the third place, the Mexican government maintains informational programs addressed to national public opinion in Mexico, designed to reduce existing prejudices in this area, since Mexicans general impression that death sentences have only a
48

In coordination with the governments of the Mexican state of origin of the citizen sentenced to death, or wherever the family may be located. 49 It is important to clarify that it is these organizations, in most cases, and through their information and investigation systems, that advise Mexican consulates of general or particular situations regarding citizens who are detained or sentenced to death. 50 Some of the non-governmental organizations devoted to the study of the death penalty in the United States are: Amnesty International, Human Rights Watch, American Civil Liberties Union, Death Penalty Information Center, Murder Victims Families for Reconciliation, National Black Police Officers Association, National Coalition to Abolish the Death Penalty, National College for Criminal Defense and National Conference of Black Lawyers. It is also important to say that there are a number of state and national legal assistance programs regarding the death penalty, among them Habeas Assistance and Training Project, NAACP Legal Defense Fund, National Association of Criminal Defense Attorneys and Southern Center for Human Rights. For a list of these and others already mentioned, as well as their contact information, see Rodolfo Quilantrn Arenas, op. cit., 111118.

CHART 5. ACCREDITED STAFF AT MEXICAN CONSULATES (2005) Staff attached to consulates general51 City Type
General General General General General General General General General General General General General General General General General General General Consul General Consul General Consul General Consul General Consul General Consul General Consul General Consul General Consul General Consul General Consul General Consul General Consul General Consul General Consul General Consul General Consul General Consul General Consul General 3 2 3 10 5 3 4 8 10 5 3 8 1 2 4 6 7 4 2 4 3 4 11 6 4 5 9 11 6 4 9 2 3 5 7 8 5 3

Rank of head

Consular Subtotal Administrative Technical Subtotal official Assistant Administrative

1 1 1 3 2 2 2 4 1 2 1 2 1 1 1 1 1

Total

Last Act. SRE

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19

Atlanta Austin Boston Chicago Dallas Denver El Paso Houston Los Angeles Miami Nogales New York Phoenix Sacramento San Antonio San Diego San Francisco San Jose Washington

3 2 1 5 3 1 4 3 8 3 1 4 3 2 3 5 4 1 5

4 3 2 5 6 3 6 5 12 4 1 6 4 4 4 6 5 2 6

8 6 6 16 12 7 11 14 23 10 5 15 6 7 9 13 13 7 9

4/6/05 5/2/05 4/6/05 3/1/05 12/8/04 4/28/05 5/9/05 5/20/05 4/6/05 3/05 5/9/05 5/9/05 1/21/05 1/05 5/9/05 11/22/04 4/13/05 5/13/05 5/23/05

51

Hermilo Lpez-Bassols, Tratado de derecho diplomtico y consular (Mexico, Po rra, 2006) 7967.

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136

CHART 6. ACCREDITED STAFF AT CAREER CONSULATES Consular official

3 1 2 1 2 1 1 1 2 1 1 1 2 1 1 2 1 2 1 1 1 2 1 1 1 1 1 1 2 1 1 1 1 4 1 4 2 3 1 1 1 5 2 4 1 1 1 2 1 1 1 1 1 1 1 2 2 2 1 3 1 1 4

City

Type

Rank

Subtotal Administrative Technical Subtotal Assistant Administrative

Total Last Act. SRE

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Updated information provided by the Foreign Office, 19 Apr 2007.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 26 27 29 30

Albuquerque Brownsville Calexico Del Rio Detroit Douglas Eagle Pass Philadelphia Fresno Indianapolis Kansas City Laredo Las Vegas Little Rock McAllen Omaha Orlando Oxnard Portland Presidio Raleigh St. Paul Salt Lake City San Bernardino Santa Ana Seattle Tucson Yuma

Career Career Career Career Career Career Career Career Career Career Career Career Career Career Career Career Career Career Career Career Career Career Career Career Career Career Career Career

Consul Consul Consul Consul Consul Consul Consul Consul Consul Consul Consul Consul Consul Consul Consul Consul Consul Consul Consul Consul Consul Consul Consul Consul Consul Consul Consul Consul

4 2 3 2 3 1 1 3 2 2 3 2 3 2 2 2 3 2 2 1 2 2 3 2 2 2 2 2

2 4 4 0 2 2 2 2 3 2 1 2 1 2 5 1 4 2 4 1 1 2 1 5 1 4 4 1

6 6 7 2 5 3 3 5 5 4 4 4 4 4 7 3 7 4 6 2 3 4 4 7 3 6 6 3

2/4/05 5/9/05 4/6/05 10/6/04 2/1/05 5/3/05 5/2/05 4/4/05 1/20/05 4/5/05 3/29/05 5/6/05 4/1/05 2/2/05 3/10/05 9/30/04 4/4/05 12/22/04 2/9/05 5/13/05 5/2/05 2/3/05 4/8/05 2/4/05 4/4/05 3/2/05 1/21/05

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racial origin, not a legal one, while this may be true but not always, at times hinders the defense attorneys work. Finally, it promotes information campaigns in the United States to prevent xenophobic or discriminatory attitudes (very intense on the border, mainly in Arizona, California, Texas and New Mexico), as well as campaigns to raise awareness of the judicial authorities handling the Mexicans cases, thus seeking to avoid errors at trial. In support of the protection work by the Mexican consulates in the United States, in September 2000, the Foreign Office instituted, through its General Directorate of Protection and Consular Affairs, what was then called the Program of Legal Assistance for Mexicans Sentenced to Death. This program was renewed in October 2001, and its name changed to Program of Legal Assistance for Capital Punishment Cases in the United States. The goal of this program is to prevent the imposition of capital punishment upon Mexicans accused of crimes punishable by death, through the timely intervention and technical-legal advice provided by the program. This guidance is offered to defendants defense attorneys and to Mexican consular delegations in the United States. It also works on the provision of technical-legal assistance in cases in which Mexicans have been sentenced to capital punishment, in order that their defenders have legal elements and mitigating factors during appellate processes before state and federal courts, including the U.S. Supreme Court, to stop scheduled executions or, if appropriate, to vacate the sentence and obtain a new trial. Likewise, it anticipates participating in the training of consular staff and members of the Mexican Foreign Service who carry out protection work in the consulates in the United States, as well as of Foreign Office Officers, to provide them with theoreticalpractical elements for better handling of and attention to capital punishment cases.52 The support provided through the program is given at various phases of the legal proceedings, including pre-trial proceedings, guilt determination phase and sentencing phase, as well as during post-conviction stages, which are direct appeal and state and federal habeas corpus, through specialized advice on U.S. and inter52

Foreign Office, Services of Assistance and Consular Protection, General Directorate of Protection and Consular Affairs.

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national criminal law to attorneys charged with the defense of Mexicans facing capital punishment. The program began its work in September 2000 by retaining the services of the law office of attorney Sandra Babcock, a recognized expert in international law and capital punishment cases, to collaborate with the defense attorneys of Mexicans involved in death penalty proceedings. This firm was chosen based on its experience and excellent reliability, because during the 1990s, this office established a precedent in U.S. courts by presenting, as a defense argument, the violation of Article 36 of the Vienna Convention on Consular Relations in death penalty cases. It is also very important to point out that the Mexican Foreign Office, in creating the program, took into account the success achieved by the defense in the Aldape case, which will be analyzed below. Sandra Babcock was a recent graduate of Harvard Law School at the time she became involved in that case. In 1999, when the Mexican authorities contacted her, there was one goal in the attorneys mind: to defend Mexicans imprisoned in the U.S. because I was certain that they are vulnerable due to the language barrier and cultural differences.53 The program is comprised of four types of officials. There is an attorney in charge of the program, who coordinates the actions of the attorneys that participate in it and keeps in touch with the defense attorneys of the Mexican citizens, the prosecutors, the judges and the Mexican consuls in the United States. For their part, the support attorneys prepare the documents presented as legal pleadings and petitions in different courts, and carry out actions in support of the attorney in charge of the program, such as monitoring of U.S. jails in order to detect potential death penalty cases, and conducting interviews with consuls, prosecutors and judges. There is also a group of investigators that assist in locating elements that can be presented as mitigating evidence on behalf of Mexican citizens, with the goal of presenting them in the courts in ordinary or postconviction legal proceedings. Finally, there is a group of specialists who present testimony as mitigating factors in the courts. These may be neurologists, psychiatrists, jury selection consultants, academics who are experts on international law, among others.
53

Jorge Cisneros, Un ngel en el pabelln de la muerte, El Universal, 6 Dec 2004.

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In order to ensure its effectiveness, program support is provided to defense attorneys both during the trial phase as well as in post-conviction stages, through specialized advice on U.S. and international (treaties and conventions) criminal law. Its main responsibilities include: 1) drafting and filing of legal and administrative petitions and briefs, such as amicus curiae, direct appeal, habeas corpus, application for writ of certiorari, and executive clemency petitions; 2) detection of any irregularities occurring before, during or after the trial, such as racial discrimination, failure to provide consular notification, ineffective assistance of counsel, among others; 3) supporting the Mexican citizens defense in obtaining mitigating evidence; 4) locating specialists to testify; 5) constant monitoring of the U.S. jail and prison system; 6) establishing direct, constant contact with judges and prosecutors; 7) maintaining the chain of communication among consulates, attorneys and program; 8) organizing, in conjunction with the Foreign Office, training courses for members of the Mexican Foreign Service and Foreign Office officers devoted to protection work. Given the great demand for legal aid for convicted prisoners in the United States, the program has clearly established eight criteria to determine whether a case is appropriate to receive program support. These are: 1) cases where there is information to presume the innocence of the Mexican citizen; 2) cases of those who were minors as of the date the crime was committed; 3) cases of citizens who have or have had clearly ineffective assistance of counsel; 4) cases of obvious racial discrimination during the proceedings, especially when codefendants have received lesser sentences; 5) cases of Mexican citizens with mental problems; 6) federal capital punishment cases; 7) cases of Mexicans who have been sentenced to death whose execution date is in the near future, and those who have execution dates already set; 8) for serious violations of due process and the right to access and consular notification, in flagrant violation of the Vienna Convention on Consular Relations.54
54

It is worthy of note that the Program has been the channel for presenting to the prosecutors offices the Advisory Opinion filed by the Mexican government with the Inter-American Court of Human Rights (OC-16/99) and the decision of the International Court of Justice on the Avena case, regarding the interpretation of Article 36 of the Vienna Convention on Consular Relations, which will be analyzed in the following chapter.

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Since it began in the year 2000, this program counts among its achievements 131 cases in which prosecutors, judges and juries did not pursue capital punishment, and seven cases in which the sentence was commuted. In twenty-eight cases, funds were allocated to hire investigators and experts in various areas of specialization, such as psychologists, psychiatrists and neurologists, in order to supplement the defenses scarce resources. It is important to mention that on ten occasions, steps were taken to allow for specialized attorneys to replace court-appointed attorneys, including the cases of two Mexicans unjustly convicted of homicide in the state of Texas. As a result of the intervention of the programs attorneys, various legal arguments were able to be preserved, including that of the violation of the right to consular notification in eighteen case files, thus avoiding application of the rule regarding failure to raise the defense at trial; as a result, these arguments will be able to be asserted in subsequent legal proceedings before higher courts. In twenty-three cases, program attorneys drafted amicus curiae briefs that were filed by the Mexican government in the courts having jurisdiction over the cases. Additionally, program attorneys consulted with defense attorneys assigned to eighty-seven capital punishment cases and also with sixty-four Mexican citizens involved in capital crimes, imprisoned in various U.S. prisons. The program also created manuals for attorneys representing Mexican citizens in capital trials, and for consular officers working in the area of protection. These documents provide basic information regarding the legal defense of Mexicans facing capital punishment and appropriate handling of these cases. As part of the actions of this program, four regional seminars have been held in Houston, Los Angeles, Chicago and Dallas, for consular staff in the offices with the highest rates of capital cases, and two others in San Francisco and Santa Monica, for defense attorneys representing Mexicans facing capital punishment. Likewise, in Mexico City another seminar was held regarding protection, for members of the Mexican Foreign Service and Foreign Office staff who participate in work on capital punishment cases. Without a doubt, one of the greatest achievements of the program is the case of Osvaldo Torres Aguilera, sentenced to death in Oklahoma. Through the immediate intervention of the program

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and the participation of the Mexican Embassy in the United States, the governor of Oklahoma commuted his death sentence to life in prison in May 2004, in response to the decision of the International Court of Justice in the Avena case. Another noteworthy case is that of Gerardo Valdez Matos, whose execution was vacated by the Oklahoma Court of Criminal Appeals and a new hearing held to reconsider his sentence, following the programs intervention and collaboration with the defense attorney. In this case, the presiding judge determined that Valdez Matos in fact was prejudiced by not receiving timely notification of his rights under Article 36 of the Vienna Convention and, in an unprecedented decision, ordered an indefinite stay of execution in May 2002, sending the case back to the trial court for a new sentencing phase. In that new phase, the prosecutor agreed to withdraw the capital charges in exchange for a guilty plea. This is the first case of a court in that state vacating a death sentence as the result of an appeal.55 In 2004 alone, forty cases were handled directly, including twenty-two Mexicans sentenced to death and eighteen facing that possibility. Also recorded were 142 cases of Mexicans being tried in cases that could lead to a death sentence. It should be noted that during that year, although Mexicans represented only 1.4 percent of the 3,701 people sentenced to death in the United States, the fifty-four Mexicans sentenced to death represented 44 percent of all foreigners condemned to death in the United States, making Mexico the country with the highest number of citizens in this category.56 For her part, attorney Sandra Babcock, assigned to the program, calculated that one hundred Mexicans lives had been saved as a result of the programs work.57 Following this brief analysis of the Mexican governments protection work on behalf of its citizens facing the possibility of a death sentence, or having already been so sentenced, it is essential to point out that this work has been successful, having achieved stays of several executions and commutation of death sentenceswith
55

Consejo Nacional de Poblacin, Informe de Ejecucin 20052006 del Programa Nacional de Poblacin 20012006. 56 Boletn de Prensa (Secretara de Relaciones Exteriores, Mexico, 2004). 57 Jorge Cisneros, Un ngel en el pabelln de la muerte, art. cit.

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examples going back more than ten years.58 However, it is undeniable that the most powerful example of the success of the work done by the Mexican government is the recent decision of the International Court of Justice (ICJ) (in the Avena case), which was preceded by the Advisory Opinion issued by the Inter-American Court of Human Rights (IACHR). These two cases, together with the stay of Ricardo Aldape Guerras executionwhich directly concerns the authors personal experiencewill be analyzed in the next chapters.

58

Gonzlez de Cosso, for his part, lists five cases occurring between June of 1992 and December of 1994 (art. cit., 124, footnote).

The Avena Case

S WAS EXPLAINED IN THE PREVIOUS CHAPTER, THE Mexican government, for several decades now, has consistently protected the rights of its nationals living abroad, temporarily or permanently, especially those living in undocumented status within the United States. It can be stated that the history of the Mexican Foreign Service is, in large measure, the history of the defense of our Mexican citizens who, on the other side of the border, face a world of cultural barriers, abuse and exploitation, not devoid of racial prejudice, which place them in an extremely vulnerable position with regard to U.S. authorities. The task of consular protection which, by legal mandate, the Mexican consuls carry out day after day, strives to offset this de facto inequality, through the provision of a great number of services for the benefit of Mexicans living abroad, with full respect for the laws of the country where they live.1 Basic consular functions include providing assistance to Mexican citizens abroad and ensuring that they receive fair, equitable and humane treatment while in the custody of law enforcement authorities. Access to the consulate and its assistance are indispensable whenever foreign citizens face charges and detention under the legal system of another country, especially when facing a death sentence. Timely consular intervention ensures that foreign detainees understand their legal rights and have the means to prepare an adequate defense.2
1

Juan Manuel Gmez-Robledo, El Caso Avena y otros nacionales mexicanos (Mxico contra Estados Unidos de Amrica) ante la Corte International de Justicia, Anuario Mexicano de Derecho Internacional (Mexico, UNAM, V-2005) 175. 2 From Paragraph 52 of the decision, ICJ 2004.

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Consistent with this position, on December 19, 1997, Mexico asked the Inter-American Court of Human Rights for an Advisory Opinion on the applicability in the United States of various treaties regarding human rights protection. The Mexican governments request was related to minimal judicial guarantees and due process within the context of the death penalty, imposed by courts upon foreigners whom the receiving State has not informed of their right to contact and request assistance from the consular authorities of their State of nationality. Mexico based its argument on the provisions of Article 64.1 of the American Convention on Human Rights, the Vienna Convention on Consular Relations, the American Declaration of Rights and Duties of Man and the UN International Covenant on Civil and Political Rights. All of these instruments are binding on Mexico. We will examine this advisory opinion, which constitutes an important precedent on the subject, in the following paragraphs. Subsequently, consistent with this primary objective of the Mexican government of protecting its citizens abroad, Mexico turned to the International Court of Justice in The Hague in January 2003, instituting proceedings to have the court determine the applicability of Articles 5 and 36 of the Vienna Convention on Consular Relations. The Mexican government filed the case because U.S. authorities did not advise a significant number of Mexicans prisoners, sentenced to death, of their right to speak with consular officials. The Vienna Convention on Consular Relations provides for the right to notification and consular assistance. In its Article 36, it requires local authorities to inform immediately detained, jailed or imprisoned foreign nationals of their right to notify their consulate of their detention. At the request of the detainee, the authorities must, without delay, notify the consulate of the detention and authorize access by consular representatives to the detained citizen. This right permits consular officers to provide assistance, including legal advice, in order to help guarantee a fair trial to citizens of their countries who may be at a disadvantage in criminal proceedings abroad. Mexico asserted, when it filed the claim, that these citizens had been tried, convicted and sentenced to death without being duly informed of their rights, despite the fact that the United States was one of the 168 countries that adopted the Vienna Convention and made a commitment to the international community to follow

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its provisions.3 The Convention provides for freedom of consular communication, which is vitally important to the exercise of their functions: the right to communicate with their own citizens established in Article 5.4 Consequently, at present, the importance of open communication between nationals of a State and their government is such that it can be stated that without it, the establishment of consular relations would be almost pointless. Article 36 of the Vienna Convention sets forth three obligations for all signatories in cases where a foreigner is taken into custody or imprisoned to serve a sentence imposed by a court, within its territory. In the first place, the State must inform a consular officer of the State of the detainees citizenship regarding the fact of his detention. Secondly, the receiving State must ensure that the consular officer receives any communications sent by its citizens, whether they are detainees, defendants or convicted prisoners. Thirdly, the receiving State must allow the consular officer to visit his States citizen who is detained or imprisoned in his consular district, allow him to converse with that citizen and aid in his defense in court. This provision covers cases in which a citizen of the sending State has been taken into custody and a criminal proceeding has been commenced against him, cases in which the citizen has been convicted, but still has a right to file an appeal, and also cases in which the judgment of conviction of the citizen is final. Of essential importance is the fact that the article recognizes that these obligations of the receiving State
3

The United States signed the Vienna Convention on Consular Relations at the conclusion of the Vienna Conference on April 24, 1963, and it was ratified by the government on November 24, 1969. 4 Article 5 of this Convention, regarding consular functions, establishes that the functions related to the case at issue here consist of: a] protecting in the receiving State the interests of the sending State and of its nationals, both individuals and bodies corporate, within the limits permitted by international law; helping and assisting nationals, both individuals and bodies corporate, of the sending State; i] subject to the practices and procedures obtaining in the receiving State, representing or arranging appropriate representation for nationals of the sending State before the tribunals and other authorities of the receiving State, for the purpose of obtaining, in accordance with the laws and regulations of the receiving State, provisional measures for the preservation of the rights and interests of these nationals, where, because of absence or any other reason, such nationals are unable at the proper time to assume the defence of their rights and interests.

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must only be carried out if the detained foreigner so requests. Nevertheless, the receiving State has the duty to inform, without delay, the detained foreigner of the fact that he has those rights. This essential point, established in subparagraph 1-b, is precisely the omission committed by the U.S. authorities, who thus committed a very clear violation of the aforementioned Convention.5 It is important to point out that the rights analyzed here, those of both the national and the consular officer, are so important for most States that they have been included in various treaties, but they have even been recognized in the absence of a treaty specifying themboth as a matter of international practice and in seeking reciprocity. In the Vienna Convention, as was already stated, this right is codified in Article 36, which can be considered not only one of the most difficult regulations to draftjudging by the controversies that arose during the debates held by the States participating in the Vienna Conferencebut one of the most important contributions of the Convention to contemporary consular law.6 Therefore, the case filed by Mexico, whose central issue was a controversy regarding the application and interpretation of the Vienna Convention on Consular Relations, began January 9, 2003. When Mexico made the decision to file a case against the United States before the highest international court, four Mexicans had been executed in the preceding few years, under circumstances in which their rights to consular protection had been violated. The
5

Article 36 of the Convention, regarding communication with the nationals of the sending State, in pertinent part, states: 1-b] if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this subparagraph; c] consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgement. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action. 6 Hermilo Lpez-Bassols, Tratado de derecho diplomtico y consular . . . , op. cit.

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two most recent cases, at the time, were Javier Surez Medina on August 14, 2002 and Miguel ngel Flores Muoz on November 8, 2002, both in Texas. Mexico argued correctly that timely consular assistance could have protected the procedural guarantees of the defendants. Although the original claim dealt with the cases of fiftyfour Mexicans, by the time the courts decision was issued, there were only fifty-two cases remaining to be resolved.7 The definitive and final decision was issued March 31, 2004. Thus, the International Court of Justice pronounced judgment, after a little more than a year of deliberationsan unusually short timein the proceeding initiated over the case regarding fifty-two Mexicans sentenced to the death penalty. The court found that the United States had violated its international obligations in the majority of the cases of Mexicans sentenced to death (fifty-one cases). Therefore, it ordered that, through means of its choosing according to domestic law, there be a review and reconsideration, through the courts, both of the convictions and of the sentences, taking fully into account the weight of the lack of consular notification in the final death penalty decisions of the state courts. BACKGROUND As we will attempt to demonstrate in this chapter, the Avena case is an unprecedented event in the legal defense of nationals in a foreign country, because through the favorable ruling by the ICJ, greater certainty was achieved in all those countries that rely on international law to settle their international controversies. The Avena case cannot be viewed in isolation, however, because it is not a completely original claim. There have been numerous violations of the right to consular communication, and among them, those committed by the U.S. government stand out. Therefore, as background for the Avena case are cases filed by other countries and, obviously, the advisory opinion petition that the Mexican government filed in the Inter-American Court of Human Rights, over the same facts that later led the government to petition the ICJ.
7

Caso Avena: El Tribunal International de Justicia falla contra EEUU, La insignia, 2 Apr 2004, human rights.

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THE BREARD CASE

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One important precedent, at least with regard to the first phase, that of interim, or provisional, measures, is the Breard case, which pitted Paraguay against the United States in the ICJ. In 1992, authorities in the state of Virginia arrested and jailed ngel Francisco Breard, a Paraguayan citizen, who confessed to the attempted rape and capital murder of Ruth Dickie. A court in the county of Arlington tried, convicted and sentenced the defendant to death, without him ever having been notified of his right to consular assistance, and without having notified the authorities of the consulate of Paraguay of Breards arrest and trial. It was not until 1996 that ngel Francisco Breards family took legal action when they learned of the case and of the fact that he had the right to receive help from the Paraguayan consulate. The U.S. courts, however, ruled that it was too late to consider the matter as part of his habeas corpus petition, due to the fact that the state and federal courts with jurisdiction to hear capital cases in Virginia strictly follow the doctrine of procedural default, which limits the possibility of defendants introducing new arguments on appeal. Given that Breard had not previously raised, before the Virginia courts, the issue of the violation of the Vienna Convention, the federal courts ruled that it was no longer possible to consider that argument.8 The Paraguayan government, having learned of the case through other means, in early 1996 filed a civil suit against the Virginia officials, requesting a court order preventing ngel Francisco Breards execution and overturning his conviction. However, the Fourth Circuit Court of Appeals dismissed the case in January 1998, stating that the 11th Amendment to the U.S. Constitution precludes foreign governments from suing a U.S. state, even for breach of an international treaty, in cases where there is no continuing violation of the treaty.9 Paraguay made every effort to exhaust all procedural remedies within the jurisdiction of the
8

Amnesty International, Angel Francisco Breard: Facing Death in a Foreign Land, March 1998. 9 Added to the U.S. Constitution in 1798, the 11th Amendment precludes foreign citizens (or those from another state) from suing a U.S. state without its consent.

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receiving State. However, all the Paraguayan efforts to vacate the sentence proved fruitless. Therefore, the Republic of Paraguay asked the ICJ to rule that Paraguay was entitled to restitutio in integrum, and that the United States was under the legal-international obligation to refrain from applying the doctrine of procedural default,10 or any other doctrine of internal law that would preclude, in one sense or another, the exercise of the rights contained in the Vienna Convention on Consular Relations. Paraguay also asked for provisional measures to safeguard the defendants life while the ICJ made its findings. The U.S. government, however, took an ambiguous position regarding the provisional measures order issued by the ICJ. That is, the only step taken by the U.S. government in this respect was to send a letter, on April 13, 1998, from the Secretary of State to the governor of Virginia. On the one hand, the lukewarm letter reflected the reluctance on the part of the United States to comply with a measure it considered unjust, as it did not believe that consular notification would have made any difference in the Breard case. Additionally, in the opinion of the United States, the provisions of the Vienna Convention could not be interpreted by any reading to mean that the lack of consular notification required overturning the results of the trial. On the other hand, however, the act of sending the letter also indicated that the U.S. government feared that an attitude of contempt toward the ICJ could bring about reprisals, by individuals, against U.S. citizens abroad. Therefore, it can be said that the petition to postpone the execution was due more to the concern for the safety of U.S. citizens abroad, than to the ICJs decision, which the United States did not consider binding. We should clarify here, however, that under the ICJ Statute (Article 41, paragraphs 1 and 2), the provisional measures are suggested, but cannot be legally required. Similarly, given the nature of the U.S. legal system, it was argued that the only thing the federal government could do was to
10

Through this doctrine, the U.S. courts decided that since Mr. Breard did not assert his right to consular assistance during the previous phase of his case, it could not be raised during the federal habeas phase, which seems surprising given the evidence that the defendants failure to raise this issue occurred precisely because of the failure of the local authorities to advise him of that right.

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take a persuasive measure, but never a letter that would be compulsory in nature. Therefore, the governor of Virginia decided to carry out the execution on April 14, 1998, the date that had been set by the Arlington County Court. In a statement issued that same day, the governor of Virginia maintained that his first duty was to ensure that those who reside within our borders may conduct their lives free from the fear of crime, and that he was concerned that the ICJ was conducting a review of the Breard case, since that would have the practical effect of transferring responsibility from the courts of the Commonwealth and the United States to the International Court.11 After the execution, the Paraguayan government decided to withdraw the claim it had filed before the ICJ, and therefore the case never reached the final stage. However, as has already been stated, it served as precedent for Mexico, as it represented a clear violation by the United States of the Vienna Convention and with regard to ICJ provisional measures.12
THE LAGRAND CASE

In order to understand the Avena case, it is necessary to be familiar with the ICJs ruling in the LaGrand case, a case similar to ours that, in more than one sense, established the precedent upon which Mexico would seek to develop the interpretation of international law.13 On March 3, 1999, Walter LaGrand, a German national, was executed in the Arizona gas chamber, despite an order by the ICJ demanding a stay of execution. His brother, Karl LaGrand, had been executed by lethal injection one week earlier, despite requests for a reprieve by the German government. Both had been arrested in 1982 and sentenced to death in 1984 for the murder of a bank employee during an attempted robbery in 1982. However, neither of the two was advised at the time of their arrest of their right to contact the German consulate to request assistance, although they
11

Commonwealth of Virginia, Office of the Governor, Statement by Governor Jim Gilmore concerning the Execution of Angel Breard, Press Office, April 14, 1998. 12 Vienna Convention on Consular Relations (Paraguay v. USA), ICJ Report 1998. 13 Vienna Convention on Consular Relations (Germany v. USA), ICJ Report 1998.

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pointed out their German nationality. The German authorities knew nothing of the LaGrand brothers situation until ten years after their arrest, when the brothers learned of their consular rights through other prisoners and got in touch with their consular delegation, acknowledging their country of origin. It was seventeen years after their arrest that the Arizona authorities informed the LaGrand brothers of their right to notify their consulate of their arrest and to be in contact with it, based on the Vienna Convention on Consular Relations, although it is established that this notification must be made without delay, at the time of the arrest of a foreign citizen. By then the appeal process was too advanced, and it was too late to allege the violation of the treaty and appeal the death sentences, according to the U.S. legal doctrine of procedural default. Consequently, German filed a claim against the United States before the ICJ, asserting that the United States had violated its binding obligations under Article 36 of the Vienna Convention on Consular Relations by failing to inform immediately the LaGrand brothers of their consular rights, and for thereby preventing Germany from providing timely assistance to its citizens. The ICJ issued a unanimous order with provisional, or interim, measures, urging the United States to take all measures at its disposal to ensure that Walter LaGrand was not executed pending a final decision of the Court regarding the treaty violation. The Supreme Court rejected Germanys request that the ICJ order be followed, arguing that its orders are not legally binding. Thus, Arizona Governor Jane Hull gave the green light for the execution, ignoring the unprecedented recommendation of the Arizona Clemency Board for a stay of execution for Walter LaGrand.14 Despite Walter LaGrands execution, Germany continued with its efforts to obtain a binding judgment. On June 27, 2001, the ICJ issued its historic ruling in the LaGrand case. By fourteen votes in favor and one against (USA), the Court declared that the United States had breached its obligations to Germany and to the LaGrand brothers under the Vienna Convention upon failing to inform im14

As a State Party to the Vienna Convention and its Optional Protocol, Germany had the right to seek a binding judgment from the ICJ against the United States for its alleged violation of the Vienna Convention.

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mediately Karl and Walter LaGrand, upon their arrest, of their right to contact their consulate.15 The ICJ established the general obligation of remedying a breach of the obligations under Article 36 of the Vienna Convention in the following terms: The Court finds, nevertheless, that if the United States, notwithstanding this commitment (to ensure the implementation of specific measures adopted in fulfillment of its obligations under Article 36, subparagraph 1-b), should fail in its obligation of consular notification to the detriment of German nationals, an apology would not suffice in cases where the individuals concerned have been subjected to prolonged detention or convicted and sentenced to severe penalties; in the case of such a conviction and sentence it would be incumbent upon the United States to allow the review and reconsideration of the conviction and sentence by taking account of the violation of the rights set forth in the Convention. This obligation can be carried out in various ways. The choice of means must be left to the United States.16 Beginning in June 2001, when the ICJ issued its decision in the LaGrand Case, Mexico used all the diplomatic means within its power to convince the U.S. government of the need for judicial review of the cases of Mexicans sentenced to death in which there was proof of violation of the rights of consular information and notification guaranteed by Article 36 of the Vienna Convention. The diplomatic effort was unsuccessful. The United States, in fact, limited its interpretation of the LaGrand decision to the review of penalties imposed exclusively through the mechanisms of executive clemency, in view of the choice of means indicated by the ICJ to comply with the obligation of redressing the breach of Article 36. Mexico argued that the mechanism of executive clemency could in no way be viewed as satisfying the requirements of the LaGrand decision and, therefore, could not constitute redress under international law of the Article 36 obligations. Although the LaGrand case did not directly benefit Mexicans affected by violations of the Vienna Convention, it set the standard
15

LaGrand Case: Germany v. USA, in The World Court Reference Guide (Kluwer Law International, U.S., 2002). 16 Loc. cit.

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for the Mexican government to seek a more forceful, explicit ruling that would set aside the ambiguity and relativity that clemency mechanisms may contain at the time of their application. In this wayand based on the Advisory Opinion of the Inter-American Court of Human Rights, which Mexico had already obtained and which will be analyzed belowthe foundation was laid for Mexico to seek true legal vindication through the ICJ in the Avena case.
ADVISORY OPINION 16/99 OF THE INTER-AMERICAN COURT OF HUMAN RIGHTS

As stated above, the petition for an advisory opinion filed by the Mexican government with the Inter-American Court of Human Rights is an important precedent for the Avena case, as it included several of the legal arguments that would later be made, by both Mexico and the United States. It was also further proof of the clear intention on the part of the Mexican government to settle its international disputes through the appropriate channels, which have been previously agreed upon by nearly all participants in the international system.
Mexico files its petition

The Inter-American Court of Human Rights (IACHR) dealt with the U.S. violations of the Vienna Convention. On November 17, 1997, the Mexican Foreign Office had filed with the IACHR an application for an advisory opinion regarding the interpretation of various treaties regarding protection of human rights in the United States.17 The subject of the inquiry concerned the issue of minimum judicial guarantees and the requirement of due process when a court sentences to death foreign nationals whom the receiving State has not informed of their right to communicate with and seek assistance from the consular authorities of the State of which they are nationals. In the application for an advisory opinion that Mexico presented to the IACHR, the basis, and crucial point of the petition, was the interpretation and legal scope of Article 36 of the Vienna Convention on Consular Relations. It is noteworthy that although it was Mexico that filed the petition before the IACHR, there was general interest in the court rul17

Official letter sent by Foreign Secretary Jos ngel Gurra, and received by the Secretariat of the IACHR on December 9, 1997, Mexico, SRE, November 17, 1997.

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ing on this matter, as demonstrated by the unprecedented participation in the proceedings of eight IACHR member States and twenty-two institutions and individuals as amicus curiae.18 Upon receiving the application, the IACHR first declared that it had jurisdiction to render the opinion, considering various factors. In the first place, both the sending State (Mexico) and the receiving State (USA) were Parties to the Vienna Convention on Consular Relations, as well as members of the Organization of American States (OAS). In addition, both states had signed the American Declaration of the Rights and Duties of Man, and ratified the International Covenant on Civil and Political Rights. The Court pointed out that the objective of its advisory function is to contribute to the fulfillment of international obligations in the American states in matters concerning the protection of human rights.
The United States presents its defense

In its counterargument, the United States first asserted that the IACHR did not have jurisdiction to hear the case, since the object of the controversy was related to the interpretation of obligations contracted by the States party to an instrumentthe Vienna Convention that is neither a human rights treaty nor a treaty concerning the protection of human rights.19 In addition, the United States argued that the fact that the Vienna Convention stipulates a protectionpotentially important for certain detained individualsdoes not imply the protection of human rights as such, in the strict sense that could confer jurisdiction upon
18

The States that submitted their observations were, in addition to Mexico and the United States, Costa Rica, El Salvador, Guatemala, Paraguay, Honduras and the Dominican Republic. Among the organizations and persons who functioned as amicus curiae were: Amnesty International, Comisin Mexicana para la Defensa y Promocin de los Derechos Humanos (Mexican Commission for the Defense and Promotion of Human Rights), Human Rights Watch, Center for Justice and International Law, Death Penalty Focus of California, Delgado Law Firm, International Human Rights Law Institute of De Paul University College of Law, MacArthur Justice Center of the University of Chicago Law School, Minnesota Advocates for Human Rights, Sandra L. Babcock, Bonnie Lee Goldstein, William H. Wright, Jr., Mark Kadish, Jos Trinidad Loza, John Quigley, Adele Shank, Robert L. Steele, Jean Terranova and notable Uruguayan jurist and former foreign minister of his country, Hctor Gros Espiell. 19 Written Observations of the United States in OC-16, U.S. Department of State, Office of the Legal Adviser, June 1, 1998.

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the Court. The United States also maintained that the Vienna Convention is in no sense a regional treaty, nor does it belong to the scope of the inter-American legal system. In fact, it is a convention adopted under the auspices of the United Nations for the purpose of establishing a uniform, global system for the better handling of consular relations among sovereign states. Thus, in the opinion of the U.S. government, the act of attempting to take the interpretation of states obligations under the Convention to a regional context was something completely inconsistent with its nature. Also, the United States would say, an additional reason to prevent the IACHR from hearing Mexicos petition, was that the petition was not what it claimed to be; the United States argued that the Mexican government was in fact presenting a contentious case under the guise of an application for an advisory opinion. Thus, the United States maintained that the request was patently an attempt to subject the United States to the contentious jurisdiction of this Court, even though the United States is not a party to the American Convention and has not accepted the Courts contentious jurisdiction. Regarding this latter point, the United States argued, additionally, that it was necessary to take into consideration that fact that the International Court of Justice had, at the time, a contentious case on its docket filed by Paraguay against the U.S. government, involving the same issues that Mexico was raising in its petition to the IACHR. This required the court to be prudent and show the utmost caution, until the court in The Hague issued a final decision. Is this a valid argument? Finally, according to the U.S. government, the criminal justice system that controls it gives full effect to the mechanisms that ensure a fair trial. These guarantees and procedures are not at all dependent upon timely consular notification, access to it or possible aid, assistance or protection from the consulates. In this sense, the U.S. government alluded to the legal instruments supported by the U.S. Constitution, including the 5th and 14th Amendments, which establish that anyone accused of a crime is guaranteed due process of law, as well as the guarantee that no person will be subject to discrimination by state or federal authorities based on race, gender, ethnicity or national origin. Of particular importance for some persons of foreign nationality is the fact that the U.S. courts have

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interpreted the 5th and 6th Amendments as granting the right to the assistance of an interpreter in cases where the detainee does not understand English. The United States also argued that, although the death penalty is permitted in the United States, it is subject to very rigorous processes containing a number of legal remedies and appeals. The system of automatic review, through which the U.S. Supreme Court re-examines death sentences before they are carried out, serves as a safeguard against the possibility of capital punishment being imposed in an arbitrary, capricious or disproportionate manner.
The IACHR issues its advisory opinion

Finally, the court concluded in its advisory opinion OC-16/99 that the interpretation of the American Convention on Human Rights and any other treaty concerning protection of human rights in the American States must guide the conduct of all member States of the Organization of American Statesto which the United States belongsas well as the principle bodies of the inter-American system of human rights protection, with regard to relevant legal matters, such as those set forth in Mexicos request for an advisory opinion. With regard to the Vienna Convention on Consular Relations, the court determined that Article 36 of the Vienna Convention on Consular Relations concerns the protection of the rights of a national of the sending State and is part of the body of international human rights law. It also clarified that the expression without delay in subsection(1)(b) . . . means that the State must comply with its duty to inform the detainee of the rights that article confers upon him, at the time of his arrest or at least before he makes his first statement before the authorities. This means that the enforceability of the rights that Article 36 confers upon the individual is not subject to the protests of the sending State. The Court points out that compliance with the state obligation regarding the right to consular communication is not subject to the requirement of protests lodged by the sending States; that is to say, consular communication is a matter of international responsibility that every State must fulfill even when that communication is not requested by the country of which the accused are nationals. In fact, it would be illogical to subordinate the exercise or compliance with these

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rights and obligations to the protests of a State that is unaware of its nationals situation. Additionally, in the opinion of the IACHR, Mexico had not asked the court to interpret whether the main purpose of the Vienna Convention was the protection of human rights but rather only whether one of its rules concerned that protection; this was relevant in light of the advisory jurisprudence of that court. Therefore, the IACHR interpreted that a treaty can concern the protection of human rights, regardless of what its main purpose may be. Therefore, although some of the arguments presented to the court by the United States regarding the main purpose of the Vienna Convention on Consular Relations are accurate, in the sense that it is a treaty designed to establish a balance among states, this does not necessarily require rejecting the idea that the treaty can concern the protection of basic human rights on the American continent. The Court further argued that the interpretation of any rule must be done in good faith, and that this interpretation may involve examining the treaty taken as a whole, if necessary. Therefore, the purpose of the Vienna Convention on Consular Relations is not only to grant strictly individual rights, since the rights of communication and notification are, above all, state rights. Thus, the individuals to whom the Convention refers are those who exercise consular functions. Nevertheless, the Court holds that any treaty can concern the protection of human rights regardless of what its main objective may be; therefore, this Convention does in fact concern the protection of the rights of the national of the sending State and can be to that nationals benefit. Therefore, in the opinion of the IACHR, the violation of the right to consular notification in capital cases may have serious consequences for the fundamental rights of the accused, including the right to a fair trial and an adequate defense.20 Despite the forcefulness of the IACHRs responses to Mexicos petition, this Advisory Opinion could not be considered an international judgment, and therefore Mexico would have to go before an international body with greater legal authority, such as the International Court of Jus20

IACHR, The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law, Advisory Opinion OC-16/99 (October 1, 1999, [Ser A] No. 16).

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tice. The IACHRs Advisory Opinion, however, clearly demonstrated that the arguments presented by the United States were not supported by international law. THE CASE CONCERNING AVENA AND OTHER MEXICAN NATIONALS (MEXICO V. UNITED STATES) BEFORE THE INTERNATIONAL COURT OF JUSTICE On December 16, 2002, in his role as legal adviser to the Mexican Foreign Office, Ambassador Juan Manuel Gmez-Robledo met in Washington with U.S. State Department legal adviser William Taft, for the purpose of making a record of the existence of irreconcilable differences between the two countries regarding the scope of the rights granted by the Vienna Convention and regarding the interpretation to be given to the LaGrand decision.21 This diplomatic mission had more than political value; it was of great importance from a legal perspective, having the purpose of preventing the United States from arguing that Mexico had not exhausted the channel of negotiation prior to turning to the ICJ. In fact, at the end of a long meeting in which many of the aspects regarding compliance with the obligation of consular information and notification were discussed, the Mexican government expressed to the U.S. government the need for the United States to intervene in legal proceedings in support of Mexican nationals whose rights under Article 36 had been violated, in order to have the courts review and reconsider convictions and sentences, especially in light of the ICJs findings in the LaGrand case. Likewise, the U.S. federal government was to inform the boards of pardons that, whenever it was not possible to retry the entire case that led to the conviction and death sentence, that commutation of the sentence to life in prison would be an appropriate remedy of the violation of Article 36. The U.S. State Department, however, reiterated that, based on the choice of means indicated by the ICJ in the LaGrand decision, its intervention would consist only of asking the appropriate administrative authorities to carefully review and reconsider the vi21

We must recall that upon issuing the LaGrand decision, the ICJ left it up to the U.S. government to decide the measures to be adopted to redress the harm suffered by the German citizens.

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olation of Article 36. There was no guarantee, however, that the board of pardons or the governor would follow the State Departments advice. It was more than obvious that nothing more could be expected from negotiation. Legal action was now the only option.22
Mexico files its claim

On January 9, 2003, Ambassador Gmez-Robledo, after having called the U.S. State Department legal adviser to inform him of the action, filed with the Clerk of the International Court of Justice in The Hague, the case against the United States, along with a request for provisional measures. It is important to point out the legal considerations that led Mexico to file its case before the International Court of Justice. Mexico and the United States are, as UN Member States, parties to the Courts Statute, and they are also parties to the Vienna Convention on Consular Relations, as well as to its Optional Protocol concerning the Compulsory Settlement of Disputes.23 Article 1 of this Protocol provides that: Disputes arising out of the interpretation or application of the Convention shall lie within the compulsory jurisdiction of the International Court of Justice and may accordingly be brought before the Court by an application made by any party to the dispute being a Party to the present Protocol. Additionally, pursuant to Article 36, paragraph one, of the ICJ Statute, the jurisdiction of the Court comprises [. . .] all matters specially provided for in [. . .] treaties and conventions in force.24 Consequently, Mexico concluded, and rightfully so, that the issues involved in this dispute fell within the jurisdiction of the ICJ.
22 23

Juan Manuel Gmez-Robledo, op. cit., 179. Both the United States and Mexico signed the Vienna Convnetion on Consular Relations at the close of the 1963 Conference, the United States on April 24 and Mexico on October 7 of the same year. Subsequently, they submitted it to their governments for ratification, which occurred for Mexico on June 16, 1965 and for the United States on March 10, 1969. Additionally, the United States signed the Optional Protocol on Compulsory Settlement of Disputes on April 24, 1963, and ratified it November 24, 1969. Mexico did not do so for many years, but upon realizing the impact that an incorrect interpretation in the application of one of the articles of the Convention could have on its nationals, it decided to join the Protocol on March 15, 2002. 24 Vienna Convention on Consular Relations, Optional Protocol concerning the Compulsory Settlement of Disputes, in Adolfo Marexca, trans. Herminio Morales, Las relaciones consulares (Madrid, Aguilar, 1974) 537.

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When there is a judge on the ICJ of the same nationality as one of the parties, but no judge of the nationality of the other party, the latter party may designate a jurist of its choice to be seated as a judge ad hoc.25 Since the court had a judge of U.S. nationality, Thomas Buergenthal, Mexico, designated, through a letter to the Clerk of the Court on January 13, 2003, Bernardo Seplveda Amor, former Mexican Foreign Secretary and a member of the UN International Law Commission, currently a judge on the ICJ. The public hearing for the parties to present their positions was held on Monday December 15, 2003 at the Peace Palace in The Hague, Netherlands, seat of the ICJ. The Mexican government was represented by Mexican Foreign Office legal adviser Juan Manuel Gmez-Robledo; Mexican Ambassador to the Netherlands, Santiago Oate; other Mexican foreign office officials; academics from highly regarded universities and jurists from prestigious law firms and legal associations, including Sandra L. Babcock, Director of the Mexican Capital Legal Assistance Program. For its part, the U.S. government was represented by state department legal adviser William H. Taft IV , other state and justice department officials, legal advisers and officers of the U.S. Embassy in The Hague in Paris, as well as academics and jurists from international associations. At the first hearing, Seplveda Amor solemnly declared that he would perform his duties and exercise his judicial powers honorably, faithfully, impartially and conscientiously. In presenting its position, the Mexican government, through its Ambassador Juan Manuel Gmez-Robledo, recalled the Mexican tradition of respecting and promoting the development of international law, thus seeking to explain the filing of the case against the United States, Mexicos main trading partner and a country to which we are connected by a number of factors as the Mexican representative himself pointed out. Thus, Gmez-Robledo declared that Mexico was appearing before the ICJ with one end in view: justice and respect for the obligations arising from treaties and other sources of international law [especially the UN Charter]. He also stated to the ICJ that Mexico had complete confidence in the rule of law and in
25

As provided in Article 31, Paragraph 2 of the ICJ Statute in Article 35, Paragraph 1 of the ICJ Rules.

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your role as guarantors of international law. All that need be said in this respect is that Mexico has recognized the compulsory jurisdiction of the Court since 1947. In its claim, Mexico formulated its petitions to the ICJ in the following terms: The Government of the United Mexican States therefore asks the Court to adjudge and declare: (1) that the United States, in arresting, detaining, trying, convicting and sentencing the fifty-four Mexican nationals on death row described in this Application, violated its international legal obligations to Mexico, in its own right and in the exercise of its right of consular protection of its nationals, as provided by Articles 5 and 36, respectively of the Vienna Convention; (2) that Mexico is therefore entitled to restitutio in integrum; (3) that the United States is under an international legal obligation not to apply the doctrine of procedural default, or any other doctrine of its internal law, to preclude the exercise of the rights afforded by Article 36 of the Vienna Convention; (4) that the United States is under an international legal obligation to carry out in conformity with the foregoing international legal obligations any future detention of or criminal proceedings against the fifty-four Mexican nationals on death row or any other Mexican national in its territory, whether by a constituent, legislative, executive, judicial or other power, whether that power holds a superior or a subordinate position in the organization of the United States, and whether that powers functions are international or internal in character; (5) that the right to consular notification under the Vienna Convention is a human right; and that, pursuant to the foregoing international legal obligations, (1) the United States must restore the status quo ante, that is, re-establish the situation that existed before the detention of, proceedings against, and convictions and sentences of, Mexicos nationals in violation of the United States international legal obligations;

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(2) the United States must take the steps necessary and sufficient to ensure that the provisions of its internal law enable full effect to be given to the purposes for which the rights afforded by Article 36 are intended; (3) the United States must take the steps necessary and sufficient to establish a meaningful remedy at law for violations of the rights afforded to Mexico and its nationals by Article 36 of the Vienna Convention, including by barring the imposition, as a matter of internal law, of any procedural penalty for the failure timely to raise a claim or defense based on the Vienna Convention where competent authorities of the United States have breached their obligation to advise the national of his or her rights under the Convention; and (4) the United States, in light of the pattern and practice of violations set forth in this Application, must provide Mexico a full guarantee of the non-repetition of the illegal acts.26
The United States Presents its Defense

In presenting its position in the Avena case, the United States approached the ICJ with a legal strategy radically different from the one it used in the LaGrand case. This time, the U.S. government chose to acknowledge the violation of the rights of the LaGrand brothers from Germany, but attempted to limit the interpretation regarding the extent of consular assistance they would have received and its impact on the proceedings in their cases. The United States next argued that the violation of the Vienna Convention was remedied by simply presenting an apology to the German government. The provisional measures, decreed motu proprio by the Court, and the controversy regarding their binding nature, were in essence the most important issues in this case. However, neither the facts nor the violations were refuted by the United States. In the Avena case, the United States knew that it could not go back over what the Court had already decided in the LaGrand case.27
26

Vienna Convention on Consular Relations, Mexico v. United States of America, ICJ Report 2004. 27 Juan Manuel Gmez-Robledo, art. cit., 189.

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As a result, the United States opted to present its defense in the Avena case by extolling the virtues of the LaGrand decision, with the central argument that the Court had already ruled on the issue and that the remedy provided for in the decision allowed the United States to choose the means for carrying out the review and reconsideration of the convictions and sentences. Let us recall that the clemency mechanism had been the means chosen by the United States to comply with the remedy; therefore, it now intended to do so not only with regard to the German nationals, but with any others as well. At the same time, the United States repeated one of the arguments used in the LaGrand case. That was that Mexico was taking advantage of the Courts jurisdiction, because in reality the case had to do with the use of the death penalty in the United Statesa matter of internal national jurisdictionand not with the interpretation and application of an international treaty, in this case the Vienna Convention on Consular Relations. Regarding the merits of the case, however, and unlike what occurred in the LaGrand case, the United States denied nearly all of the evidence provided by Mexico, both with regard to the facts and with regard to the violations. The United States even went so far as to assert, without ever providing any evidence, that most of the convicts were U.S. citizens, and it did not refute the evidence presented by Mexico. This was, in short, a strategy that intended to discredit the basis of Mexicos claims, and was not devoid of attempts to intimidate the Court.28
Provisional measures adopted by the ICJ

Along with its claim, Mexico asked the ICJ, pending resolution of the merits of the case, to issue an order indicating the provisional measures that the United States was to take, to prevent the execution, or the setting of a date of execution, of any of the fifty-four Mexican nationals who were the subject of the litigation.29
28 29

Ibid., 190. The petition for provisional measures occurred the same day that Mexico filed its case before the ICJ (December 9, 2003) under Article 41, Paragraph 1, and Articles 73-75 of the ICJ Statute.

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As established by the ICJ Statute, the goal of the provisional measures is to safeguard the rights of each of the parties (Article 41). The importance of the provisional measures is because the restitutio in integrum that Mexico was requesting before the ICJas relief for the U.S. violations of its obligations under Article 36 of the Vienna Conventioncould not have materialized if any of the individuals who were the subject of the dispute had been executed. That is, if that had happened, Mexico would have been forever deprived of the possibility of vindicating its rights and exercising diplomatic protection in order to enforce respect for the individual rights of its nationals. In sum, the provisional measures were necessary to safeguard the rights of Mexico, which included the preservation of the lives of its nationals, while the Court heard the merits of the case. Such measures were also indispensable for ensuring that the Court would preserve the possibility of ordering appropriate measures for restoring the rights violated by the United States.30 Given the fact that none of the Mexican nationals yet had an execution date at the time that Mexico filed its claim and applied for provisional measures, the United States questioned whether the conditions for ordering such measures existed.31 Over the course of the next six months, however, three Mexican nationalsCsar Fierro, Roberto Moreno Ramos and Osvaldo Torreswere to have been executed, unless the Court would decide to indicate the provisional measures demanded by these urgent circumstances. Csar Fierros execution could have been set for February 2003, Roberto Moreno Ramoss one month later and Osvaldo Torress for July of the same year. Fortunately, on February 5, 2003, the Court issued an order of provisional measures, thus halting any action related to the subject under review on the merits. This step in itself is of fundamental importance, given that the Court halted the executions of the first convicts that had exact execution dates.
The ICJ issues its decision

The ICJs decision means for Mexicoand for the international community as a wholehaving, from this moment on, a definitive
30 31

Juan Manuel Gmez-Robledo, art. cit., 189. Ibid., 190.

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interpretation of the scope of the obligations under Article 36 of the Vienna Convention. In the particular case of Mexico, at the same time that it strengthens the legal arguments that Mexico will assert in order to promote the rights of Mexicans who may be arrested in the future for any reason, the ICJs decision provided a number of findings that are of enormous significance for the individual cases that brought about the Mexican governments intervention, through diplomatic protection.32 The Courts responses to Mexicos petitions regarding the merits of the case included, in the first place, agreement that the United States had violated its responsibilities under Article 36 of the Vienna Convention. In the second place, they established the measures that the United States was to carry out. Thus, the Court contributed in a vital way to protecting the rights of the Mexicans who, at that time, were going through legal proceedings in death penalty cases. The measures ordered by the ICJ to the U.S. government were, basically, the following: 1. In order to provide an appropriate remedy in this case, the United States is obligated to ensure, through means of its choosing, review and reconsideration of the convictions and sentences of Mexican nationals [referred to in this suit], taking into account [the violation of the rights established in Article 36 of the Vienna Convention]. 2. [The Court] notes the U.S.s commitment to ensure the implementation of specific measures adopted in compliance with its obligations under Article 36, subparagraph 1-b of the Vienna Convention; and states that this commitment must be considered as satisfying the petition of the United Mexican States requiring assurances and guarantees of nonrepetition. 3. Nevertheless, if any Mexican nationals are sentenced to serious penalties without their rights under Article 38 subparagraph 1-b of the Convention having been respected, the United States is obligated to ensure, through the means of its choosing, review and reconsideration of the convic32

Ibid., 194.

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tion and the sentence, in such a way that gives all the weight required to the violation of the rights set forth in the Convention [. . .].33 In the months following the ICJs decision, the Mexican authorities waited for the U.S. government to proceed to disseminate, support and comply with the ruling, that is, to review and reconsider the cases under the terms established by this important tribunal. Additionally, the Mexican government began to request cooperation from the U.S. State Department and authorities of the various states, to deal with the most urgent cases. Among these actions, the Permanent Commission of the Mexican Congress asked the Foreign Office for information on the situation of Mexicans sentenced to death in the United States, in order to clarify the status of those who had been denied the right of consular protection, and it proposed a campaign to assist them.34 Additionally, taking into consideration the particularities and the stage of the proceedings of each case, the Foreign Office worked on having teams of local attorneys file, with the appropriate legal entities, the new petitions that the Courts decision allowed.35 With regard to the United States, although its federal government, through the Supreme Court, began to review several cases of Mexicans sentenced to death, some of the states refused to follow the ICJs rulingamong them, Oklahoma, California, Texas, Arkansas, Nevada, Ohio, Oregon and Illinois. One example is the case of Jos Ernesto Medelln Rojas, sentenced to death in Texas, who was convicted of the rape and murder of two teenagers in 1993. In his petition to the Supreme Court, Medelln was supported by legal associations, renowned jurists, and even the European Union.36 Additionally, at the time the ICJs ruling was issued, thanks to the aforementioned provisional measures, none of the Mexicans
33

International Court of Justice, Mexico and the Case: Avena and Other Mexican Nationals (Mexico v. USA) (Mexico, SRE, 2004). 34 Arturo Nahle Garca, PRD Deputy communiqu Solicitarn diputados informacin sobre condenados a muerte en E.U., Mexico, Notimex, Saturday January 15, 2005. 35 Foreign Office, Seguimiento del Caso Avena y otros nacionales mexicanos, Press Release No. 068, Mexico, D.F ., April 13, 2004. 36 Analizarn derechos consulares de condenados a muerte, Washington, Agencia EFE, December 10, 2004.

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included in the Avena case had been executed, but the state of Oklahoma had set the date of May 18, 2004 for the execution of Osvaldo Torres. Fortunately, the ICJs ruling has already begun to bear fruit. In addition to Osvaldo Torreswho received, shortly before his scheduled execution, the pardon of Brad Henry, governor of Oklahoma, Gerardo Valdez and Rafael Camargos lives were saved after their cases were reviewed following the ICJ ruling, and their death sentences were commuted to life in prison. Besides their cases, three more Mexicans lives were saved a year after the ICJs decision. This time, it was a decision of the U.S. Supreme Court, declaring unconstitutional the application of the death penalty, since those involved were under eighteen years of age when their crimes were committed. This was the case of Oswaldo Regalado Soriano, now thirty years old, sentenced to death in Texas in May 1994, Martn Ral Fong-Soto, aged thirty-one, who received his sentence in Arizona in February 1994 and Tonatiuh Aguilar Saucedo, aged twentyfive, sentenced in that same state in June 2003. These three Mexican nationals had been charged with first-degree homicide, and having been saved from capital punishment, will now serve life sentences. The Mexican government supported the legal defense of these Mexicans citizens during their trials and also participated as amicus curiae, expressing its special interest in the case.37 Thus, it is that the Foreign Office, with the extremely valuable support of Mexican and U.S. jurists and human rights organizations, has performed one of the most arduous tasks of consular work, which is protection, especially of nationals subject to the death penalty. The stays of several executions and fundamentally the precedent that has been created must guide the judgment of the U.S. courts, which had deliberately ignored the rules of international law that they are binding upon them. This case takes on greater significance, as pointed out by Gmez-Robledo Verduzco a fundamental pillar of the Mexican victory in The Hagueunder the circumstances that prevail in the early twenty-first century.

37

Natalia Gmez Quintero, E.U.: fallo de Corte quita pena capital a tres mexicanos, El Universal, 2 Mar 2005.

The Aldape Case

They stole 15 years of my life. Id have to be crazy to go back to the United States. RICARDO ALDAPE GUERRA

N ISSUE OF EXTREME IMPORTANCE FOR THE MEXICAN government, and one that drew major national and international attention due to the indisputable proof of his innocence was, without a doubt, the experience of Mexican citizen Ricardo Aldape Guerra. An undocumented immigrant, Aldape spent fifteen years in Unit 1 of Ellis maximum-security prison in Huntsville, Texas; he was freed following intensive work by the Mexican government and U.S. attorneys to prove his innocence. Ricardo Aldape Guerra, a native of Monterrey, Nuevo Len, Mexico, was sentenced to death on October 14, 1982 for the firstdegree murder of Houston Police Officer James Donald Harris, which took place the night of July 13 of that same year. His defense attorney, Scott J. Atlas, of the prestigious Houston law firm Vinson & Elkins, defended this Mexican citizen through the presentation of various legal documents. Also extremely valuable was the participation of the Mexican governmentthe Ministry of Foreign Relations and the Mexican Consulate General in Houston, the National Human Rights Commission and the state government of Nuevo Len, as well as the Texas Resource Center,1 through disAn institution devoted to providing assistance to those sentenced to death in the state of Texas.

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tinguished attorney Sandra L. Babcock. Finally, in 1996, the Fifth Circuit Court of Appeals in New Orleans decided to reverse the trial in which Ricardo Aldape Guerra was sentenced to capital punishment. This case undoubtedly strengthened the Mexican governments position in the sense of offering assistance to its citizens sentenced to death in the United States. It also represented a clear example of how, through errors in legal proceedings, there exists the possibility of innocent people being executed, which is the main argument used against the imposition of the death penalty. Pursuant to the foregoing, it is appropriate to include in this chapter the account of the trials and tribulations of Mexican citizen Ricardo Aldape Guerra, as well as the mark left upon the Mexican government and this author by having known and aided this fellow countryman during those times of anguish and distress. It is important to point out that the account presented in this chapter was written by Scott J. Atlas and Michael Mucchetti, both attorneys from the firm Vinson & Elkins, in October of 1998. Without a doubt, their outstanding participation in the case was a key factor in overturning Ricardo Aldape Guerras death sentence. THE MURDERS
WILL YOU HELP US?

In the spring of 1992, when Aldape had already spent ten years in prison, Ricardo Ampudia, Consul General of Mexico in Houston, first contacted Scott Atlas, an attorney with Vinson & Elkins, to ask him to take on the defense of Ricardo Aldape Guerra. Aldape had been imprisoned since 1982 for the murder of Houston Police Officer James D. Harris. The State had set Aldapes execution for May 12, 1992 at 12:01 a.m. The then head of the Mexican Consulate in Houston asked Scott Atlas, Will you help free Aldape? A few short days before Aldapes scheduled execution, that phone call would be the first step in a legal odyssey that would consume him and a team of lawyers for the next five years. The reopened investigation of the crime would uncover evidence that the jury never heard when Aldape was convicted, a shocking pattern of police and prosecutorial in-

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timidation, misconduct and abuse. Over the next half decade, the legal case would wind its way from state district court to the states highest criminal tribunal, through the federal legal system and back again to state court. More than fifteen judges would ostensibly review the matter. While Aldape lingered on death row, the ensuing uproar over his impending date with death would create a diplomatic incident. Atlas could not know then of the victory and defeat, joy and sorrow, hope and despair this single call would precipitate. For Scott Atlas, a partner in the business litigation section of the law firm of Vinson & Elkins L.L.P ., the request to discuss his possible representation of a death row prisoner came as a surprise. Vinson & Elkins, or V&E as it is called colloquially, is one of the largest and oldest Texas law firms. Except for some white-collar criminal representation, the scope of V&Es practice is predominantly devoted to the transactional and litigation problems of corporate and government clients. Atlas himself had never represented anyone facing execution, although he had handled a few pro bono criminal matters. As chairperson of V&Es pro bono committee, he was proud of V&Es tradition of accepting matters, free of charge, for indigent clients as well as certain artistic and humanitarian endeavors. Atlas was raised in McAllen, Texas, only a few miles from the Mexican border. He learned Spanish as a young boy. An informal exchange program with a family in Mexico City when he was fifteen helped Atlas become fluent and gain a deeper appreciation of Mexican culture. Except for the summer in Mexico and four years at Yale University where he obtained a bachelor of arts in math and economics, Atlas was rarely absent from Texas for any length of time. After graduation from the University of Texas School of Law in 1975, Atlas served as a law clerk to the Honorable Thomas Gibbs Gee, a judge on the United States Court of Appeals for the Fifth Circuit.2 The clerkship provided Atlas some exposure to criminal matters, including capital murder cases. Atlas developed a close relationship with his mentor, who in early 1977 asked Atlas, now an attorney, to represent a criminal defendant on appeal before the
2

The Fifth Circuit is the federal appellate court that hears challenges to federal district court opinions issued from the states within its jurisdiction. The Fifth Circuit currently hears cases from Texas, Louisiana and Mississippi.

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Fifth Circuit. His pro bono representation of Bill Rummel would foreshadow the obstacles he would soon confront for Aldape. In late 1980, Atlas obtained a finding that Rummels trial attorney was so ineffective in assisting Rummel that he was denied his constitutional right to counsel.3 When the Mexican Consulate contacted Atlas, he accepted the invitation to attend the meeting to discuss his possible representation of Aldape, although he thought he would almost certainly decline the Mexican consulates offer to spearhead Aldapes legal defense. A supporter of the death penalty himself, Atlas believed society deserved to protect itself and to inflict retribution in the appropriate cases by meting out the ultimate punishment. At the meeting held in mid-May in his office, Atlas was greeted by Mexican Consul General Ricardo Ampudia, the legal advisor to the consulate, Jorge Cicero, and Sandra Babcock, a recently licensed graduate of Harvard Law School who worked for the Texas Resource Center. The Center had been established with federal funds to represent inmates on death row who were challenging their convictions. She had already prepared and filed Aldapes state district court petition for writ of habeas corpus.4
3

A court sentenced Rummel to spend his life behind bars for committing three bad-check-type crimes. His criminal misconduct totaled approximately $230. Atlas contended that the Texas statute, which mandated a life sentence upon a third felony conviction, was cruel and unusual punishment in violation of the 8th Amendment as applied to Rummel. Following an en banc hearing, where the Fifth Circuit judges were split, and presenting the facts to the Supreme Court, Rummels sentence was affirmed. Rummel secured his freedom only after the case was remanded to federal district court. 4 Once convicted, Texas state prisoners may appeal the judgment to the States highest criminal court, the Texas Court of Criminal Appeals. If unsuccessful, the prisoner may then seek review by the U.S. Supreme Court, which has the discretion to decide whether it will hear the matter. Very few cases are reviewed by the Supreme Court. If the petition for review to the Supreme Court proves unsuccessful, then the last chance for freedom, a lesser punishment or retrial, lies with a petition for writ of habeas corpus. A state inmate like Aldape, as opposed to a federal prisoner, must first file a petition for habeas relief in state court. If the state courts deny habeas relief, a prisoner may seek habeas relief in the federal court system. In 1992, Aldape had just begun to exercise his habeas rights. The right to challenge a sentence by a writ of habeas corpus is guaranteed by the U.S. Constitution and is often said to stem from the Magna Charta (Article 1 Section 9, Clause 2).

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Atlas was the consulates choice, if he were willing, to assume Aldapes habeas defense. The Consulate explained that Aldapes arrest was a case of mistaken identity. Aldape was merely the murderers unwitting companion; the police killed the guilty man as he tried to avoid capture the night of the shootout. Aldape surrendered peacefully and always proclaimed his innocence. Further, the consulate explained that the State had argued that Aldapes status as an illegal immigrant could be considered when determining whether he should be sentenced to die. Aldape, a young, poor, illegal alien from Monterrey, had been railroaded because the police already shot the real killer. The review of the case that Atlas heard during the two-hour meeting piqued his interest, and he asked to read the recordseventeen volumes containing a total of 4,776 pages. The record would allow Atlas to decide for himself whether Texas afforded Aldape a fair trial before sentencing him to die.5 The record contained other materials for Atlas to review. From Aldapes direct appeal, Atlas could read the opinion entered by the Texas Court of Criminal Appeals. In addition, he could study Sandra Babcocks prior legal research. Just reviewing the extensive record to determine if it supported the Mexican governments characterization of the case took Atlas a month. He discovered that there was no shortage of purported witnesses to the crime. The witnesses stories in the trial transcripts, statements to police, and the offense reports, though, were often contradictory. The identification of the shooter varied from witness to witness, and the statements were internally inconsistent as well. Atlas worked through the web of accusations and counter accusations. As he studied the mountain of material, a disturbing picture unfolded of the justice Aldape had received from his northern neighbor.
FROM MONTERREY TO TEXAS

Ricardo Aldape Guerra was born on April 3, 1962 in Monterrey, Mexico. Monterrey is the capital of Nuevo Len, a Mexican state
5

In a capital case, the trial itself is divided into two parts. First, the jury must decide whether the accused is guilty or not guilty. This is usually called the guilt/innocence phase. Then, if jury finds the defendant guilty, the sentencing phase begins.

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that shares its northern border with Texas. From a humble family, which consisted of his parents and three siblings, Aldape left school at age seventeen to support his family by working in a cardboard box factory. Despite these circumstances, his life was normal and calm, with a close-knit family and free time playing soccer. He was a normal student and worker. Neither henor any member of his familyever found themselves in trouble with the law. In at least two instances, Ricardo demonstrated his unique character. Aldape, though, was not content with his life in Monterrey. He yearned for more for himself and for his aging parents. On April 3, 1982, when Aldape turned twenty, he then made a decision to enter the United States illegally. Aldape and two friends jumped a train that took them over the border. In San Antonio they located a friend who offered shelter and another drove them to Houston. Aldape quickly found employmentinstalling sheetrock, and although he earned substandard wages at $3.00 an hour, it was more than he earned in Mexico ($35 per week). He also found a place to live in a predominately lower-income Hispanic neighborhood, sharing his cramped living quarters (an apartment on Rusk Street in the Magnolia neighborhood) with several others. Most, but not all, were undocumented Mexican laborers. Because they crossed the Rio Grande River to enter Texas illegally, they were derisively called wetbacks. The Spanish language equivalent is mojado, which means wet. A couple of months after Aldape arrived in Houston, a new man introduced himself to the group. In addition, undocumented, this twenty-seven-year-old was known by Aldape and his roommates as El Gero, and later, by the police, as Carrasco.6 In addition to
6

This mysterious, charismatic stranger went by many names. To some, he was only Antonio. Although unknown to Aldape, El Gero sometimes assumed another identity he obtained after robbing James Joseph Kosmerl at gunpoint on June 24, 1982. El Gero became James Kosmerl by taking Kosmerls drivers license and gluing his picture over Kosmerls. To police, however, this stranger would later be called by another name, Roberto Carrasco Flores, after taking his fingerprints and requesting a search of the Texas Department of Public Safety. But, a call to the people listed on the drivers license application as relatives reached people who professed not to know him. To some, he bragged of taking the name Roberto Carrasco Flores from a taxi driver he had killed. To this day, no one has been able to identify who this man with so many aliases really was.

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boasting of having killed a taxi driver and a convenience store clerk, Carrasco bragged that he was saving his money to fly to Cuba to assassinate Fidel Castro, whom he hated. Carrasco always carried a gun that he cherished, a 9 mm pistol.7 Among the anecdotes told about him, it is said that on one occasion, when a police officer was driving by the Rusk Street apartment, Carrasco pointed his finger at the patrol car and, acting as if his hand were a pistol, made a pop pop pop sound of a gun firing, as he hated police officers. Even without Carrascos menacing presence, Magnolia was not a bucolic neighborhood. In 1982, street fights and the sounds of gunfire were routine. Aldape, like many in the neighborhood, carried a gun for protection. Aldape had a .45 Detonics pistol. He only acquired it after entering Texas when Carrasco sold it to him.8 In addition to the enigmatic visitor, other factors, beyond Magnolia, were conspiring to alter Aldapes life. The year 1982 was a tragic one for the Houston Police Department. Four HPD officers died in the line of duty in 1982. In addition, anti-immigrant sentiment filled Texans. Congress was debating a new bill targeting illegal immigrationthe Immigration Reform and Control Act of 1982.9 Its controversial provisions included penalties against employers who knowingly hired undocumented workers and an amnesty program that would offer permanent resident status for millions of undocumented aliens. The Houston newspapers reflected the thought that illegal immigration was causing a national crime wave. In additional, the unemployment rate then stood at 9.4 percent, increasing anti-immigrant sentiment, given the fear of U.S. citizens losing their jobs.
7

Carrasco had acquired the 9 mm pistol and ammunition on June 19, 1982, shortly before he began visiting the Rusk Street apartment and met Aldape for the first time. Carrasco did not buy the gun himself. Instead he approached Alfredo Maldonado, Jr., introducing himself as Luis, outside Carters Country Gun Store in Pasadena, Texas. 8 After Aldapes arrest, the .45 caliber pistol would be traced to the robbery of the Rebel Gun Store, located in Houston. The DA never arrested, charged or prosecuted Aldape for the stores robbery. 9 The Immigration Reform and Control Act was also known as the Simpson-Rodino Bill, the names of its principal authors, Senator Alan K. Simpson and Representative Peter Rodino.

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On the evening of Tuesday, July 13, 1982, Aldape asked a friend to lend him his car to go buy sodas. Carrasco, who was visiting the residents of the Rusk Street apartment that evening, offered to go along. The two men left at 9:00 p.m. on the dot. Aldape drove fast, and after buying the soda, nearly hit a teenager, George Brown, who was taking his dog for a late night walk. Brown jumped into a ditch to avoid getting hit. Picking himself out of the gully, Brown flagged down a passing police car. It was Officer James D. Harris, who came upon Brown only seconds after the near miss. Officer Harris was a model police officer. He joined the HPD in 1976 after serving in the U.S. Air Force. At age twenty-nine, he had already received several letters from citizens commending his police work. For the previous two years, he had received the highest marks from the police department for his job performance. He was also a devoted husband and father, with two young daughters. In all respects, he was the epitome of HPDs finest. Officer Harris pulled his patrol car over in response to Browns beckoning. Harris quickly noted Browns description of the erratic car and drove off in pursuit. Meanwhile, Aldape and Carrasco had not traveled far. Their car had stalled at the corner of Edgewood and Walker, still in Magnolia, a few blocks from the Rusk Street apartment. It was now nearly ten oclock in the evening. When he arrived at the corner of Edgewood and Walker, Officer Harris had only one hour left in his shift. The police car pulled in behind the stranded car. Its two former occupants were standing by the car. Aldape wore a green shirt and blue jeans. Carrasco was dressed in a maroon shirt and brown pants. Aldape had long, black hair, a beard and mustache. Carrasco had short brown hair and was clean-shaven. The different clothing, hair length and color, and facial hair would later become critical as witnesses tried to recall what they saw that evening. The uniformed officer exited his car and, in English, ordered Aldape and Carrasco to approach and place their hands on the police car. Only one man complied, putting his hands on the hood of the police vehicle. The other emerged from the shadows, walked up to the patrol car and pulled out a 9 mm Browning pistol. He shot

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Officer Harris three times in the head, almost at point-blank range. The pistol was so close that it left powder burns on the officers face. The three bullets, after exiting the victim, burrowed into a home on the northwest corner of Edgewood and Walker. After downing Officer Harris, the gunman retrieved the officers pistol. Both the gunman and his acquaintance fled, running down opposite sides of Walker Street. The shooter ran on the north side of Walker, the second man on the south side of Walker. The man on the south side of the street fired two shots into the air with a .45 caliber pistol. Shortly before Officer Harris was shot, a Ford pulled up just short of the stalled Buick. Jos Armijo, Sr. drove the Ford. Two young children shared the car with himArmijos ten-year-old son and namesake, Jos, Jr., and his three-year-old daughter, Guadalupe. Once Office Harris was shot, Armijo threw the Ford into reverse and pushed his son out of harms way. The shooter ran toward his car and leveled the 9 mm pistol at Armijos head. Trapped in the car, unable to move forward through the intersection, unable to back up quickly enough, Armijo offered an easy target. A single shot pierced the windshield, mortally wounding him. His daughter, Lupita, suffered glass cuts on the shoulder and neck. The Ford lurched into a culvert along the road. A short time later, dozens of detectives and officers arrived on the scene and joined the frantic search for the two Hispanic suspects. Officer Lawrence Trepagnier approached a darkened garage and shined his flashlight into its corners. Emerging from the gloom where he hid, Carrasco fired his 9 mm pistol, hitting Trepagnier five times in the chest and abdomen. Alerted by the gunshots, several officers rushed to the garage. Carrasco ran around a corner of the house directly into the path of the oncoming police officers. The officers fired, peppering him with shotgun blasts to the head, chest and back. The 9 mm pistol dropped from Carrascos hand and fell between his legs. The clip was empty. Aldape could clearly hear the gunfire from Carrascos unsuccessful attempt to blast his way to freedom. Cowering behind a horse trailer in the backyard of 4911 Rusk, Aldape listened as the officers and detectives closed in on him. Within minutes of Carrascos death, Aldape was located, unarmed. Hands raised, Aldape

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surrendered without a struggle. Aldapes hands were manacled and then bagged with paper sacks by the officers. The bags were meant to preserve any evidence of gunpowder or trace metal left by a gun. About two feet away from where Aldape had crouched, detectives found Aldapes .45 caliber pistol under the horse trailer. The gun was wrapped in a bandana. Aldapes pistol had one round in the chamber and three bullets in the magazine. After being detained, Aldape was driven to the police station where, at 3:30 a.m., he gave a statement without the benefit of counsel present. Soy inocente,I am innocent. No one told Aldape he had the right to contact the Mexican Consulate. The Vienna Convention on Consular Affairs, signed and ratified by the United States in 1969, afforded him this privilege.10 At the station in the early morning hours after his arrest, Aldape was photographed, fingerprinted and then stood in a lineup at six oclock in the morning, already dressed in a jail uniform. Aldape could not see the witnesses, who had spent the whole night and morning at the station, as they peered through the one-way glass and attempted to make a positive identification. Back on Edgewood and Walker, detectives and officers collected the physical evidence. At the northeast corner of the intersection, three spent 9 mm cartridges were found. The three bullets entered the left side of Officer Harriss face and traveled across the patrol car in an almost perpendicular position from the drivers to the passengers side. On top of the patrol car, blood was splattered at the same, perpendicular angle. Officers traced the bullet holes to the house on the northwest corner of Walker and Edgewood. From the physical evidence, detectives concluded that Officer Harris was standing by the open door of his car when he was shot at close range. The shooter stood east and slightly south of the officer. The medical examiner who performed the autopsy later divulged that Officer Harris had gunpowder burns on and near his wounds. A police ballistics expert testified that, given the powder burns, the murder weapon was between eighteen inches and four feet away from Officer Harris, and probably less than two feet away.
10

Recall Articles 5 and 36 of this convention, which were analyzed in our study of the Avena case, and their repercussions in that case.

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Cartridges from a 9 mm were also found elsewhere at the scene. One was located in the passenger seat of the Buick, and others on the north side of Walkerone in a ditch in front of 4925 Walker (close to the car driven by Jos Armijo, Sr.), and two in the driveway of the same house. Police recovered two .45 caliber casings on the south side of Walker Street, almost a full block east of the Harris shooting. No bullet holes for the .45 were located, which was consistent with Aldapes insistence that he had only shot his weapon in the air. From the evidence, detectives concluded that the murderer of Officer Harris used a 9 mm pistol and then fled east down the north side of Walker. On Walker, the shooter murdered Jos Armijo, Sr. and continued running east. The other person also ran east on Walker, but on the south side, firing his .45 pistol at least twice. More physical evidence was discovered on Carrascos body. Carrasco drew his last breath holding the 9 mm pistol. The clip inside his gun, with a capacity of thirteen to fifteen rounds, was depleted. At the morgue, Officer Harriss .357 Colt Python was found stuffed in the front of Carrascos waistband under his belt. Carrasco also had another clip for the Browning 9 mm pistol containing twenty rounds of ammunition in a military-type magazine double pouch attached to his belt, eleven loose rounds of 9 mm ammunition in his pants pocket and a leather holster on the inside of his front waistband. All the physical evidence implicated Carrasco. Admittedly though, Aldape failed to render aid to the mortally wounded Officer Harris, and Aldape did possess an unregistered .45 pistol, a weapon police would later determine was stolen. Aldape was also an undocumented alien, and he was undoubtedly at the murder scene. The most likely suspect, however, was Carrasco. Carrasco owned and carried the murder weapon and bore the pistol belonging to Officer Harris. But he was dead. On July 23, 1982, Aldape was indicted for capital murder. Aldape was not charged as the gunmans accomplice. He could not be. As one of the trial prosecutors acknowledged years later, the evidence showed that the shooter acted independently and without warning or assistance. Instead, Aldape was accused of murdering a uniformed police officer. Aldape was charged as the triggerman. A conviction could be punishable by death.

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Upon reviewing the police reports, Atlas observed that all the physical evidence pointed to Carrasco, not Aldape, as the killer. Nevertheless, in his first trial in 1982, Aldape faced a capital murder charge. Unable to afford an attorney, the state district court appointed counsel for him, Candelario Elizondo and Joe Hernandez. Elizondo, lead counsel for Aldape, had several years of experience with capital murder cases. Before representing criminal defendants, Elizondo served as an assistant district attorney for approximately five-and-one-half years. Hernandez had only practiced law for three years and had never tried a capital case. The defenses limited resources and the unwillingness of some of the witnesses to speak with them made it difficult to prepare Aldapes case. The defense team faced other pressures. Elizondo had to try another murder trial in August 1982 as Aldapes trial date drew nearer. The defense attorneys had no funds to hire expert witnesses to help reconstruct the crime or to dispute the interpretation of the physical evidence given by the States experts. Aldape saw his overworked courtappointed attorneys only a few times before the trial for his life. On the second meeting, they told Aldape that he should accept a life sentence. Aldape refused, insisting he was innocent. Aldape entered a plea of not guilty. The prosecution, on the other hand, consisted of two accomplished assistant district attorneys, Robert Moen, the thirty-fiveyear-old chief prosecutor of the 248th District Court (where the case had been assigned), and Richard Bax, a thirty-three-year-old chief of one of the four felony divisions in the Harris County district attorneys office. On August 30, Judge Henry Oncken called the courtroom to order as the jury selection process began. During voir dire, attorneys have an opportunity to question potential jurors to determine if they have any biases. If the court believes a potential jurors bias is so strong that he or she could not be fair, the person will be removed from the jury panel. In addition, each side may strike a limited number of jurors from the panel without providing a reason. Such a challenge that is made without showing a cause for dismissal is called a peremptory strike. Voir dire is also the first chance to convince those eventually chosen for the jury of the accuseds innocence or guilt.

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The prosecution used voir dire to emphasize repeatedly that Aldape was an illegal alien. Although the defense also noted that Aldape entered the country illegally, the State exceeded the bounds of zealous prosecution. To find the death penalty is appropriate, the jury must assess the future dangerousness of the defendant. The prosecutors expressly instructed several members of Aldapes jury that, if they convicted him, then during the punishment phase of the trial, the jury could consider Aldapes status as an illegal alien. For example, over the objection of Aldapes trial counsel, the prosecution instructed one juror that the fact that a person is in someone elses country unlawfully or has come into a country illegally could be evidence the jury could consider about what type of person he is. Prosecutors informed another juror that Aldapes status as an illegal alien might help in answering the sentencing questions that would determine whether Aldape would be executed. Voir dire lasted through September and into October 1982. Each side voiced their objections, hoping the court would agree that a biased juror could be dismissed for cause. Both people with Hispanic surnames were struck by the State. The first twelve voir dire panelists who were not removed by either the prosecution or defense team became the jury. On October 4, 1982, the trial began. The prosecutions theory was that a double-gun switch occurred. The prosecution speculated that Aldape and Carrasco kept their weapons on the Buicks front seat. When they left the vehicle, they accidentally retrieved each others weapons. That was the first switch. Aldape supposedly shot Officer Harris, took the officers weapon and then shot Armijo with the 9 mm. According to the prosecutors, at some point thereafter, but before Carrasco shot at officers with his 9 mm, Carrasco took back from Aldape his own weapon and the .357 belonging to Officer Harris. That was the second switch. As is obvious, not only did the State lack any evidence supporting its double-gun switch theory, it lacked any physical evidence linking Aldape to the crime. Then, with no physical evidence, the State relied on five people it called as eyewitnesses to the shooting. Most were teenagers. Many had a poor grasp of English and enjoyed little education. None of the witnesses saw a gun switch, and none consistently stated that they saw Aldape shoot the officer. Although five wit-

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nesses placed Aldape at the scene of the murder, only one, ten-yearold Jos Armijo, Jr., eventually testified that he actually saw Aldape shoot Officer Harris. The prosecutions whole case was built on these young witnesses being able to distinguish between two Hispanic men of similar height and build, in the late evening, with poor lighting. Carrasco and Aldapes differing clothing and facial hair would prove to be the critical distinction in determining who murdered Officer Harris. The State understood this and conceived an unprecedented technique to overcome this obstacle. All the witnesses benefited from an unusual aid during their trial testimony. At the cost of $7,000, the prosecution had prepared life-sized mannequins of Aldape and Carrasco. The custom-made head of each mannequin cost $3,500 apiece. The bodies were donated by a local department store. District Attorney John B. Holmes, Jr. said the cost would be covered by money collected by the worthless check division. Holmes admitted that the mannequins use was unusual and credited the idea to Bax and Moen. The mannequins were molded into astonishing likenesses of the two men as they looked on July 13, 1982. Each wore the actual clothes taken from the men on the night of the shooting. Thus, Carrascos shirt was bullet-riddled and bloodstained, while Aldapes was spotless. During the witnesses testimony, there could be no mistaking which man had long hair and wore a green shirt and which had short hair, a purple shirt . . . and was dead. At the 1982 trial, the State first called Patricia Diaz to the stand. She was only seventeen years old. In short, Diaz testified that she saw Aldape pointing west toward the patrol car just before the shots were fired, but she never actually saw anyone shoot Officer Harris. Herlinda Garcia then took the stand. The fifteen-year-old was on Walker Street, with her baby, headed to the store when she saw the Buick halt in the middle of the street. She said she was running when she heard the gunshots. Although Garcia identified Aldape as the shooter, she conceded that in her initial statement she had described the shooter as a blond-haired man who wore a brown shirt and brown pants. Carrasco, not Aldape, wore brown pants on the night of the shootings. Neither wore a brown shirt. Near the end of her testimony, Garcia stated that she never saw the man in brown

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clothes raise his hand or shoot anyone. Garcia had not gone to the store alone that night. She was accompanied by her sixteen-yearold sister Elvira Vera Flores. The State called Flores to the stand. Flores thought Aldape was the shooter, but she admitted that she hid behind a car when the shooting started. She also conceded that she failed to identify Aldape at the lineup, but she attributed that to her fear of retribution. She testified that she did not actually see the man who shot Officer Harris and Armijo, Sr. She saw no gun until after Officer Harris had been shot and after the man she assumed was the shooter had begun to run down the street. Hilma Galvan, who lived on the north side of Walker not far from the shooting, testified next. At forty-four, she was the only adult among all the alleged eyewitnesses called by the State. On July 13, 1982, she testified that she was walking with Jose Heredia and his brother, Armando. Galvan heard two shots. She never saw a gun, but she saw a flash. She said the shooter had blond hair and wore a black or dark brown shirt and brown pants. In court, she identified Aldape as the shooter. She said she never saw Carrasco. Galvan testified that the person she believed to be the shooter then ran toward her side of the street, the north side. The prosecution then called young Jos Armijo, Jr. who, sitting in the front passenger seat of his fathers car, saw Officer Harris standing beside his open patrol car door. Two other men were standing by the hood of the police car, with their hands on the hood. One man acted like he was scratching his back when he took out a gun and shot Officer Harris. Jos, Jr. could see fire coming out of the gun. Officer Harris fell to the ground. The shooter wore a green shirt, the other man a purple shirt, Jos, Jr. stated as he faced the mannequins. He said the shooter had a beard and long hair. He then made an in-court identification of Aldape as the shooter. On the night of the shooting, Jos, Jr. had told police that the shooter used his left hand to retrieve and shoot the gun. Neither the prosecution nor defense elicited this fact during Jos, Jr.s trial testimony. The information about which hand the shooter used might have helped the jury decide whether Aldape was innocent, based on information Atlas would only later uncover. On cross-examination, Jos, Jr. admitted that he gave a sworn statement to police on the night of the shooting that said he did

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not see the shooter clearly. Before the lineup, he told police that he did not know who shot the police officer. He also stated that he did not know what clothing Aldape and Carrasco were wearing the night of the shooting. At a lineup, hours after his first statement, he still could not identify Aldape. Even though the police assured him at the time that the men in the lineup could not see him, Jos, Jr. said he had earlier been afraid to identify Aldape. To rehabilitate Jos, Jr.s testimony, the State called his mother to the stand. She had sat in the courtroom for most of the proceeding. Marie Estelle Armijo testified that her son returned home from the police station at 8:30 in the morning on July 14, 1982 and told her he had seen the shooter but was afraid to tell the police. She testified that she waited a further six weeks, only days before the trial, to tell the prosecutors that Jos, Jr. could identify Aldape as the shooter. Over defense objections, she also detailed how Jos, Jr.s behavior had changed since his fathers death. She explained that Jos, Jr. used to go out and play a lot and he would ride his bicycle on the sidewalk and going around the block. But that had changed since the shooting. [N]ow he doesnt want to go out to play and he just comes home and he wants to lie down and sleep, and he doesnt even want to eat. This testimony, while compelling, was irrelevant to the question of Aldapes guilt. The State called other witnesses for their emotional impact. For example, the medical examiner who performed the autopsy on Officer Harris described the officers injuries. The State introduced several grisly autopsy photographs showing the entrance and exit wounds on the officers face and head and several pictures showing rods entering one side of his face and exiting the other. As its final witness, the prosecutors called the widow of Officer Harris. The court overruled objections that her moving testimony about her husbands life, work and marriage was immaterial to Aldapes guilt or innocence. The court allowed her to describe how she met her husband and how he regularly worked extra jobs so that she could devote all her time to raising their two daughters. At the end of the States case, only one witness, Jos Armijo, Jr., claimed to have actually seen Aldape shoot Officer Harris. No witnesses placed Aldape in the location where the shooter had to be east of the officer. The defense began its case.

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The defense initially presented the testimony of four witnesses, two who saw the shooting and two who heard Carrasco confess to the crime. Jacinto Vega, who was seventeen at the time of trial, testified that on the evening of July 13, 1982 he sat on Hilma Galvans porch as the Buick drove by her house and stopped at the intersection. He saw the driver approach Herlinda Garcia and Vera Flores. He noticed that the passenger in the Buick had short hair. Then the police car parked behind the Buick. Officer Harris called to the driver, and the driver walked over to the police car and placed his hands on its hood. The passenger walked behind the driver, and while standing behind, and to the east of, the driver, he took something out and shot Officer Harris. He held the weapon with two hands. On cross-examination, Vega stated that the driver was closer to Officer Harris, but the shorthaired passenger shot from behind the driver. The defense then called Jose Heredia. He and his brother, Armando, were with Hilma Galvan on the night of the shooting. He, too, saw Aldape put his hands on the police cars hood. While Officer Harris stood next to his car door, the Buicks passenger approached and shot Officer Harris. Jose Heredia identified the shooter as Gero, the light-colored one. On cross-examination, the prosecution questioned Heredia about a killing that allegedly occurred in a nearby cemetery forty minutes before Officer Harris was murdered. The prosecutors first eight questionsusing such phrases as this woman killed, they had killed a woman and the womans bodywere intended to convey to the jury that Aldape and Carrasco had committed a murder. Defense counsel objected. The prosecutor promised to spell out the relevancy later to the court, but never did. Elizondo, Aldapes attorney, did not know then that the murder never occurred. The police had investigated the rumor on approximately July 22, 1982 and confirmed it to be a complete hoax. Curiously, the assistant district attorney pursued this line of testimony even though he knew no cemetery murder occurred. Two of Aldapes roommates were then called by the defense, Jose Manuel Barrosa Esparza and Jose Luis Torres Luna. Both young men, testifying in Spanish, stated they were in their apartment when Carrasco ran into the residence at 4907 Rusk and bragged about killing a police officer. Esparza testified that at approximately 10:00 or 10:30 p.m. that night he heard gunshots. Three or four

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minutes later, Carrasco tore into the apartment, agitated and out of breath. Carrasco showed Esparza the police officers gun and stated that he had killed the guns owner. Esparza saw that Carrasco carried two pistols, one in his hand and one in his belt. Later, Torres Luna testified that Carrasco offered to give him the police officers revolver as a present. Torres Luna refused this gift. Carrasco then removed a clip from the pistol in his hand and replaced it with a loaded clip. Shortly after Carrasco arrived, Aldape ran into the house. Aldape told Torres that Carrasco had just killed a police officer. Carrasco announced he would defend himself, preferring death to surrender. Esparza, not wanting to get involved, told the men to leave. Shortly afterward, Carrasco and Aldape departed through the rear door. When the police later entered the house with their guns drawn, they forced the remaining occupants to lie face down and interrogated them while training pistols at their heads. Both Torres and Esparza admitted they did not tell the police about Carrascos confession while being interrogated, but claimed they were scared. During rebuttal, the prosecution called a police officer who testified that Torres and Esparza told him they had left home shortly after Carrasco and Aldape departed and had not returned until the officer saw them. The officer insisted that he saw no one point a gun at Torres or Esparza while they were questioned. The defense called its final witness, the accused himself, Ricardo Aldape Guerra. Testifying in Spanish through an interpreter, Aldape said he knew Carrasco only as Gero and that he had known him for only two or three weeks. On July 13, Carrasco joined Aldape when he left to go to the store to purchase a soda; as usual, Carrasco brought his 9 mm pistol. Aldape drove around the neighborhood, spinning the Buicks tires, before the car stalled. Shortly after it broke down, he asked some girls for jumper cables. Then the police car arrived. Aldape heard the officer say something, but he only understood Come on. He obeyed the command and placed his hands on the patrol cars hood. Officer Harris told Carrasco to come on, but Aldape could no longer see Carrasco. Suddenly, Aldape testified, shots rang out almost in my ears. He witnessed the officers gun drop and Carrascos retrieval of it. Both men then turned and fled. Aldape ran down the right side of

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the street (the south side) heading east on Walker. Out of fear, he twice fired his own .45 into the air to keep Carrasco from following him. He ran home and found Carrasco already inside. Carrasco said he had also shot at another car. With Aldapes testimony, the defense rested. Each side then presented its closing argument to the jury. The State, as always, proceeded first and, after the defense argument, would be permitted the final word in rebuttal. The prosecution advanced its gun-switch theory. The State insisted that five peopleJos Armijo, Jr., Galvan, Diaz, Garcia and Floresimmediately went to the police station, gave written statements without having a chance to confer, viewed the lineup while being told not to discuss what they saw, were asked individually whether they recognized anyone and identified Aldape as the shooter. Regarding the key testimony of Jos, Jr. identifying Aldape, the prosecution stated that Jos, Jr. knew that God would get after him if he told a lie. The prosecution called the scientific evidence inconclusive and that the testimony of Jose Heredia, whose testimony that he saw Carrasco kill Officer Harris was critical to Aldapes defense, could not be considered true. To justify this, the prosecutor offered this opinion of the fourteen-year-old Heredias mental state during his trial testimony: I think he was probably under the influence of some type of alcoholic beverage, or narcotic drug. The prosecution also invoked Aldapes immigration status in closing argument as it had during voir dire, stating, [Y]our answers will demonstrate what type of person . . . Aldape was while he was in our community for less than two months after coming here from Monterrey, Mexico. A message had to be sent, the prosecutor urged: Let the other residents of 4907 Rusk know just exactly what we as citizens of Harris County think about this kind of conduct. The defense argued in closing that each witness had changed their statement in numerous ways. In addition, the defense contrasted Carrascos conduct on July 13 with Aldapes. Carrasco reacted violently; Aldape surrendered. Carrasco fired on officers at 4911 Rusk; Aldape shot no one even though his loaded weapon lay within easy reach. On rebuttal, the prosecution asked for a verdict fair to Officer Harris and his family and insisted again that five witnesses had said,

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without reservation, that Aldape killed Officer Harris. Torres Luna and Esparza were simply liars, argued the State. The case went to the jury on October 12. The jurors reviewed the testimony of Galvan and Jos, Jr. that described who shot Officer Harris. They also studied Jos, Jr.s testimony concerning who shot his father. After the jury had deliberated for less than six hours, the judge asked to be told whether they had voted. After being informed that they had, he asked how they were split. The foreperson answered that the vote stood at eleven to 1, without indicating whether the majority favored conviction or acquittal. The trial court questioned if further deliberations that evening would prove productive. In response, the foreperson requested one more hour. Fifteen minutes later, the jury returned a unanimous verdict: We, the Jury, find the defendant, Ricardo Aldape Guerra, Guilty of the offense of Capital Murder, as charged in the indictment.
SENTENCING

The jury had convicted Aldape of capital murder. But their service was not yet complete. They had to sentence Aldape. Given the brutal crime of which they convicted him, the only choice would be between life imprisonment and death. The sentencing proceedings would afford an opportunity for Aldapes attorneys to offer mitigating evidence to demonstrate that he did not deserve to die. Sentencing proceedings began on October 13, 1982, one day after Aldapes conviction. In order to sentence Aldape to death, the State had to convince the jury that Aldape committed the crime deliberately and with the reasonable expectation that death would result and that Aldape would probably commit violent criminal acts in the future that would constitute a continuing threat to society. These two questions, called special issues would each have to be answered yes for Aldape to receive the death penalty. During the States case, the prosecution accused Aldape of participating in a robbery at the Rebel Gun store in Houston a week before the Harris and Armijo murders. Aldapes .45 caliber pistol was taken in the heist, as were many other weapons, including an Uzi. In all, $15,000 worth of guns and ammunition were stolen. One of the four witnesses to the crime identified Aldape as one of the robbers. A police expert claimed Aldapes fingerprint was found on the

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outside of a canister of adhesive tape used to tie the hands of the store employees and customers during the robbery. None of these witnesses identified Aldape when they saw his picture, but in an astonishing development, two prosecution witnesses identified Enrique Torres Luna, a spectator at the trial and brother of Jose Torres Luna, as a robbery participant. Sheriffs deputies arrested Enrique based on these identifications. The State made a decision, though, not to call either of two witnesses who had told police that the suspect had a tattoo of a Mexican caballero on his right bicep and that Aldape was not one of the robbers. At the time, neither Torres nor Aldape had tattoos. The State would later drop all robbery charges against Torres because of insufficient evidence. Aldapes lawyers called only a single witness in his defense, his mother. The defense brought none of Aldapes former teachers, employers or friends from Monterrey. It introduced no records demonstrating that Aldape did not have a criminal record in Mexico or the United States. The defense did not show how arduously Aldape worked on his familys behalf. To be sure, the defense lacked the money to obtain much of this material or to fly the witnesses to Houston on a days notice. Finally, it was time for the attorneys closing arguments. Prosecutor Moen used this opportunity to explain to the jury the biblical source of the States power to execute those guilty of murder. After the State invoked the Bible to assuage the jurys conscience and argued that the dearth of evidence on Aldapes character spoke volumes, the defense presented its closing argument. Elizondo asked the jury to consider the possibility of the State learning later that Aldape was not the killer. He noted that a man serving a life sentence could be set free, But how are you going to bring a dead person back? Two and a half hours after beginning deliberation, the jury reached its verdict. It answered both special issues with yes. The Court then addressed the defendant. Ricardo Aldape Guerra, the jury having found you guilty of the capital offense of murder and having answered special issues 1 and 2 yes, it is . . . the sentence of this Court that you be given death as a penalty in this case. The verdict stunned both Aldape and his parents, who all wept openly

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as the judge read the sentence of death. When asked by the judge if he had anything to say before he was formally sentenced by the court, Aldape tearfully said in Spanish, I am not guilty.
APPELLATE LOSSES

Three weeks after the jury assessed the death penalty, the Ku Klux Klan demonstrated outside the Harris County Courthouse as the defense attorneys argued Aldape should receive a new trial. Some Klan members were dressed in their customary white sheets; others wore black shirts. They carried signs reading, Guerra Got Justice, No Sympathy for Cop Killers and For Once Justice Has Been Served. Another read, Houston Will Not Tolerate Illegal Alien Crimes. Even though the jury had convicted Aldape and sentenced him to die, the motion for new trial presented one more opportunity for Aldape, while still before the district court, to escape the death sentence. His defense attorneys located a juror, Donna Monroe, who signed an affidavit stating that she believed Carrasco killed Officer Harris. She also attested that the mannequins made her nervous and influenced her verdict. It was a sudden, unexpected change of heart by one of the jurors. Aldapes attorney, Elizondo, said that, frankly, he did not know why Monroe changed her mind. He told reporters, She just says that she cannot sleep at night. Her about-face could not alter the judgment, however. The Court denied Aldapes motion for new trial, and deputies transferred him to death row in Huntsville, Texas. Aldape was now appointed a new attorney for the next round of his defense. Michael B. Charlton appealed Aldapes conviction to the Texas Court of Criminal Appeals. After filing Aldapes appellate brief with the court on August 16, 1984, Aldape and Charlton waited to see if the verdict would be overturned. Aldapes appeal languished in the high court until 1988, nearly six years after his conviction, a scandalous delay. Finally, on May 4, 1988, the nine justices decided to address Aldapes request for relief. Aldape lost again. Over a strong dissent by two justices, the court affirmed his conviction. Writing for the dissent, Justice Sam Houston Clinton, joined by another justice, noted that Jos Armijo, Jr. was the States only

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witness who claimed to see both Carrasco and Aldape. Jos Armijo, Jr.s testimony alone stood between Aldape and an acquittal for insufficient evidence. In a footnote, Judge Clinton stated that even with Armijo, Jr.s testimony, I personally have substantial doubt that Aldape was the triggerman here. He recognized, however, that the high court has no authority to pass upon the weight and preponderance of the evidence. The States double-gun switch theory worried the dissent. [I]t is utterly inconceivable to me, Judge Clinton wrote, that in the time between the killing of Harris and the subsequent gun battle with police, when the murder weapon was discovered on [Carrascos] person, that [Aldape] and [Carrasco] would have traded weapons! Although it provided meager consolation to Aldape as he languished on death row, the dissent concluded that a genuine miscarriage of justice has occurred. With this defeat, Aldape had only one avenue of appellate relief left, a petition for writ of certiorari to the U.S. Supreme Court. The countrys highest court enjoys the discretion to decide whether to hear a cert petition, as the phrase is commonly abbreviated. Thousands of cert petitions, in civil and criminal cases, are filed every year with the Supreme Court. In only a handful of cases does the Supreme Court grant review. A Supreme Court victory would require Aldape to clear two hurdles. First, he must convince four of the nine Supreme Court justices to hear his case. Second, he must persuade a majority of the justices that his conviction should be overturned. Aldape did not even clear the first hurdle. One day before the Fourth of July in 1989, the Supreme Court issued its one-page response: IT IS ORDERED by this Court that the said petition be, and the same is hereby, denied. Aldape had lost again. Justices Brennan and Marshall dissented. Adhering to our views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, they wrote, we would grant certiorari and vacate the death sentence in this case. Aldape, convict number 727, received the news in the Ellis I Unit on death row in Huntsville. Now, nothing blocked the State of Texas from setting an appointment for Aldape to die.

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The State of Texas scheduled Aldapes execution for May 12, 1992, at one minute past midnight. Aldape had exhausted his direct appeals; now he could only collaterally attack the judgment. Such a challenge is accomplished through a writ of habeas corpus, which allows a prisoner to test the legality of his imprisonment under the U.S. and Texas Constitutions. The Texas Resource Center provided Aldapes initial habeas corpus defense. It agreed to represent Aldape after trying unsuccessfully to recruit a volunteer attorney. The Texas Resource Center was part of a nationwide network of nonprofit, legal aid centers devoted to helping the indigent challenge their death sentences. Federal judges created the legal aid network in 1988 when they could not find enough qualified lawyers to handle death penalty cases. Congress provided most of the funding for the Texas Resource Center. However, in October 1995, Congress abruptly voted to cut off its funding. Opponents felt that the Resource Centers attorneys were adding needless delay and expense to the execution process and that they had lost their objectivity, becoming anti-death penalty zealots. The Texas Resource Center had also provided assistance to attorneys, often those with little criminal experience, who had volunteered to represent death row inmates. Without these legal aid networks, such inexperienced attorneys would be forced to shoulder this burden alone. However, in 1992, when it still had resources, the Texas Resource Center represented death row inmates with nowhere else to turn. Sandra Babcock, a young attorney with the organization, began reviewing Aldapes file. Like others familiar with the case, she was struck by the fact that all the physical evidence implicated Carrasco and was appalled by the States use of Aldapes immigration status during jury selection. But she went further than merely relying on the sparse investigation conducted in 1982. She attempted to contact the witnesses who testified in 1982 in order to reach her own conclusions. She also tried to talk with others who had never been called to testify. In the course of her inquiry, she located witnesses who brought startling facts to light. What she began to uncover told her that Aldape would need additional assistance.

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Concerned that the expenses required to investigate the case thoroughly would overwhelm the Centers limited funds, Babcock informed the Mexican government that only a large law firm, handling the case pro bono, could offer Aldape the representation his case demanded. While the Mexican government began the search for the appropriate attorney, on May 8, 1992, Sandra Babcock filed Aldapes first application for writ of habeas corpus with the 248th Judicial District Court of Harris County. The 248th was the same court where Aldape had been tried, convicted and sentenced to death nearly a decade before. Her brief ran 155 pages. It argued that Aldape was innocent and that he had been denied a constitutionally fair trial. At that point, his execution was less than a week away. A few days after Babcock filed the brief, Mexicos President Carlos Salinas de Gortari called Aldapes mother to reassure her of the Mexican governments commitment to her son. The Mexican president also sent a letter to Texas Governor Ann Richards asking her to postpone the execution. President Salinas was not the only person to write Governor Richards on Aldapes behalf. The same week, the governors office received about 750 calls urging her to block the execution. Her office also received about 400 petitions with approximately 6,000 signatures calling for leniency. Her spokesperson explained that Governor Richards would not become involved until court efforts were exhausted. Within seventeen hours of his scheduled execution, Aldape had not yet learned whether his appointment to die would be postponed. On what was scheduled to be his last morning, Aldape awoke at 7:00 a.m. and was permitted time for recreation. When he returned, the guards offered him something special for his last day, a hamburger and french fries. But Aldape said he was not hungry. His parents traveled from Monterrey to be with him. He had a chance to talk with, although not touch, his parents. They all thought this would be their final meeting. He told them not to be upset. He had mentally prepared himself to die. But it was not to be his final day. Later that afternoon, at a court hearing, he learned that the judge had ordered a stay of the execution. Because his death was only hours away, one reporter later ironically commented that Aldape came within nine millimeters of

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death. At a packed hearing, State District Judge Woody Densen rescheduled Aldapes execution for September 24, 1992. Judge Densen entered an Order Modifying Execution Date. The order provided, Ricardo Aldape Guerra [shall] be put to death by an executioner designated by the Director of the Texas Department of Corrections, before the hour of sunrise on Thursday, September 24, 1992a little more than four months after the first execution date. The postponement relieved many. The assistant district attorney had asked for the delay to respond to the multiple contentions in Aldapes petition. This is a very important moment for Mexico, said Ricardo Ampudia, then the Mexican Consul General in Houston, But this is not a full victory because we have not won. Ricardo Aldape is an innocent man. The Mexican government had compiled a list of Houston-area attorneys to represent Aldape. First, it approached Jon Cassidy at the Washington, D.C. law firm Miller Cassidy. Cassidy asked Seth Waxman to review the file. Waxman, who would later be confirmed as Solicitor General, said the case had merit, but should be handled by a local firm. Waxman recommended Atlas, whom he knew through their American Bar Association activities. Waxmans advice prompted Mexicos call to Atlas to schedule an appointment to discuss the matter. During his subsequent visit, Aldapes attorneys made a compelling case for his innocence. However, Atlas wanted to reach his own conclusions. After spending the first few weeks of the summer digesting the record, Scott Atlas found himself agreeing with Justice Clinton that a genuine miscarriage of justice has occurred. Preparing a habeas petition for a capital case is almost like preparing for a new trial. The case would demand a significant amount of time. Atlas told the Mexican government and Sandra Babcock that he would accept the case. On July 2, 1992, Atlas formally assumed Aldapes defense. In papers filed with the state district court, he was substituted as lead counsel. A newcomer to capital murder cases, Atlas realized the daunting tasks confronting him. Different types of expertise were needed. Initially, there were many legal issues to explore and substantial factual investigative work to complete. He knew experts would be required to help with reconstructing the crime, analyzing the weapons and examining other technical aspects of Aldapes defense.

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The strength of Vinson & Elkins, and one of the reasons why a large firm was sought, was that it allowed Atlas to assemble a team of eager, bright assistants quickly. In July, he circulated a memorandum within V&E seeking attorneys who would volunteer their time to Aldapes defense. Several attorneys answered his request for assistance: nine of them provided the initial help, and two of the firms legal assistants, also quickly volunteered. Some of the assembled legal team were Republicans; some were Democrats; a few supported the death penalty, while others opposed it. Not all members of the Aldape team, as it would be referred to in memoranda and voice-mail messages, would even come from the firms litigation sections. Transactional attorneys, who spent their days structuring deals, and tax attorneys, who explained the intricacies of the tax code to clients, volunteered their time. As none of the attorneys had significant criminal experience, they were all on the same footing. As diverse as the assembled team was, the facts they uncovered led them to share a common belief in Aldapes innocence and a commitment to rectifying the injustice. The Aldape teams membership fluctuated. A few of the associates left V&E over the course of the case, but the lawyers that stayed in Houston continued to volunteer their time on the file. In his years of practice, Atlas had never seen lawyers leave the firm yet request to continue working on a matter. As some people left the Aldape team, other attorneys and legal assistants joined in their place. The Aldape team shortly grew to include five more attorneys. Although there was no shortage of civil lawyers willing to help within the firm, Atlas realized that he would need a respected criminal law expert to guide him through the procedural and substantive complexities of a capital case. Stanley G. Schneider, a successful Houston defense attorney and certified by the State Bar of Texas as a criminal law specialist, agreed to volunteer his time and provide the sorely needed criminal expertise. Of more importance to Aldape, Schneider had been involved in dozens of death penalty cases, at various stagestrial, appeal and habeas. Other experts volunteered their time as well. At Sandra Babcocks request, University of Houston Professors Emilio Zamora and Nstor Rodrguez prepared a study of the political environment

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for illegal aliens in Houston in 1982. Professor Neil McCabe, with the South Texas School of Law, offered his advice via telephone conferences on Texas constitutional law issues and other possible legal grounds for challenging Aldapes death sentence. Professor McCabe labeled the case as one of the best for actual innocence that he had ever heard of. Professor Michael Tigar, with the University of Texas School of Law, provided his suggestions about federal constitutional issues to the entire team via a telephone conference. The Mexican Ambassador to the United States, Gustavo Petricioli, instructed his Minister of Affairs, Gregorio Canales, to provide any assistance needed by the Aldape team. In addition, Santiago Roel, the former Mexican Minister of Foreign Affairs, was appointed by the Governor of Nuevo Len to serve as the Governors personal representative on the case. Atlas then hired Floyd McDonald to examine the physical evidence. McDonalds experience was unimpeachable, and his conclusions would prove critical to Aldapes defense. McDonald founded the Houston Police Departments criminal evidence laboratory in the 1960s and ran it for three decades before founding and heading the Pasadena Police Departments crime lab. He reviewed the trace metal detection tests that were conducted on Carrasco and Aldapes hands and reconstructed the murder scene to determine where the shooter must have stood based on the physical evidence. With a V&E associate, he visited Edgewood and Walker and took detailed measurements. He located the plugged and repainted bullet holes that entered the house on the corner. Later, armed with a court order, McDonald tested the weapons that Carrasco, Aldape and Officer Harris had carried on July 13, 1982. Over the summer of 1992, Aldapes newest team of attorneys began discussing the additions they would make to Babcocks habeas corpus brief. As the list of ideas began to expand, Atlas decided it might be easier to file a replacement brief instead of supplementing the prior brief. Thus, the team began constructing what would become Aldapes First Amended Writ of Habeas Corpus. For every legal argument advanced, the Aldape team must determine what burden of proof Aldape would bear in court. In other words, the attorneys had to learn what legal obligation Aldape must fulfill to secure his freedom. Many other legal questions

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arose. Had Aldape waived an argument by not making it at his trial in 1982 or later on direct appeal? When is an inmate entitled to a habeas hearing? What is the standard for introducing new evidence in a habeas hearing? Atlas divided these and many other legal questions among the team members. In turn, the lawyers responded to Atlas with legal memoranda detailing their answers. He returned a few memoranda, raising new questions or rewriting passages; others he circulated to the rest of the team. Atlas revised some memos for incorporation into Aldapes brief. Slowly, the Aldape team began to appreciate the legal barriers confronting Aldape and to build a case for his release or retrial. The Aldape team also investigated what physical experiments might shed light on the crime. Police investigators located no nitrate on Aldapes hands. Someone on the team proposed that a test for nitrite particles be conducted on the back of the shirt Aldape wore on July 13, 1982. The presence of nitrate particles would substantiate Aldapes claim that the fatal shots came from over his right shoulder. However, the State revealed at a hearing on Aldapes motion for discovery that the shirt had been ironed before trial. The ironing left nitrites all over Aldapes shirt, making the desired analysis useless. No one ever explained why, of all the clothing that Carrasco and Aldape wore, the State cleaned his shirt. Why would any piece of evidence ever be pressed? Even though it would likely now prove pointless, at the discovery hearing Atlas requested that he be allowed to have Aldapes shirt tested for nitrates in the odd chance that, for whatever reason, the ironing had not obliterated a nitrate pattern. Atlas explained to the court that if nitrates were found all over the shirt, then they would know that a finding of nitrates on Aldapes right shoulder was irrelevant. However, as Atlas explained, If the nitrates are only on the right shoulder, that would be a strong indication that my client is innocent. Judge Densen denied his request for the test. Outside the firm, Aldapes supporters continued to protest his imprisonment. On July 4, 1992, Aldapes parents led a parade of hundreds to draw attention to their sons plight. The president of Parents of Murdered Children was quoted as complaining, Its really cold and heartless for them to march, especially on Independ-

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ence Day, for someone who was illegally in this country. On a radio call-in show, a DJ complained about the police having to provide protection to the marchers: My feeling is, if you are convicted of killing a cop and you go to jail, maybe we ought not be having any parades for you. And if we are having a parade for you, maybe the police should not be required to provide protection for you. A caller to the radio station, who expressed views similar to many of those in the community, had little sympathy for Aldapes claims of actual innocence: The Aldape team never responded to these and other similar allegations in the media. Atlas never attempted to try his clients case to the public, only to the court.
NEW EVIDENCE

The Aldape team prepared to overturn Aldapes sentence by demonstrating his innocence when something else fell into their lap. They threatened to take my baby, Patricia Diaz told the Aldape team. Rick Morris, a young attorney with Vinson & Elkins, and Guillermo Canizales, an investigator working part-time with the Texas Resource Center, uncovered startling facts about the pressure put on witnesses before Aldapes trial. They were aided in locating the witnesses by Rob Kimmons, a private investigator who worked at a reduced rate on the case. Ricks easy manner and cheerful demeanor, as well as his ability to speak some Spanish, put the witnesses at ease. Guillermo was so committed that he spent evenings and weekends, without compensation, working on the case. To strengthen the habeas brief, the Aldape team tried to uncover new leads into the murders. Rick and Guillermo made several trips to Magnolia to learn the whereabouts of anyone who might be able to reveal what really happened on July 13, 1982. In the course of this factual investigation, Rick and Guillermo did track down Patricia Diaz. Initially, she expressed extreme reluctance to talk to them. When she did describe what she knew, it provided a whole new perspective on the case. Before, the team had focused on gathering evidence of Aldapes innocence. Now, police misconduct became a critical issue. Diaz said that officers threatened to take her baby away unless she cooperated with the investigation. She also divulged that the police handcuffed her aunt,

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Trinidad Medina, after she complained of the police threat. Usually when one witness was located, that witness provided information that allowed them to track down another witness. The team found Medina, who confirmed Diazs complaints. As startled as the Aldape team was by this reported threat, the new factual investigation revealed other details that never came to light during Aldapes original trial. One by one, as they were contacted by the members of the Aldape team, a decade after the murders, the witnesses related similar stories of police and prosecutorial misconduct. An ugly picture of how the investigation was conducted slowly unfolded. Given the investigative tactics employed, it was becoming easier to see how Aldape was wrongfully convicted. Some witnesses were subjected to intimidating and coercive interrogation at the crime scene. Then, once all the witnesses were brought to the police station, they were kept together on benches before and after their statements were taken. While seated on the benches, they were allowed to talk with each other and compare their versions of the events. Several of the people found by Rick and Guillermo said that officers, several times, paraded Aldape, with his hands cuffed and bagged, in front of the witnesses. Immediately afterward, the witnesses claimed, Hilma Galvan told Jos Armijo, Jr. that he should pick Aldape as the shooter. The witnesses, many of them children in 1982, were kept at the station all night and into the next morning. Only after detectives marched a handcuffed Aldape in front of the witnesses were they brought to view a lineup to see if they could identify the shooter. Again, the witnesses talked to each other before and during the lineup. At the lineup, Aldape was the only lineup participant to have collar-length hair and a beard. After the lineup, the police had the witnesses make a second statement. These second statements, unlike the initial set, tended to implicate Aldape as the shooter. Later, the prosecutors helped the witnesses avoid any confusion between Aldape and Carrasco. As Sandra Babcock had discovered when she relocated Frank Perez, the prosecutors held a reenactment of the shooting for certain witnesses as a group. At 10:00 a.m. on July 22, 1982, nine days after the shooting, police and prosecutors gathered several of the States witnesses to conduct a walk-through of the shooting. The team learned that at least

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Galvan, Garcia, Flores and Perez were present. Again, the witnesses could overhear what the others were saying. Although it was still unclear precisely what happened at the walk-through, Flores identified Aldape as the shooter for the first time during this event. It was also at the walk-through that Flores remembered for the first time that the shooter had a beard and mustache. After this reenactment, Flores returned with a detective to the police station and dictated a new statement implicating Aldape. At least one other group preparation session occurred. The weekend before trial, the prosecutors held another meeting, this time at the district attorneys office. At this gathering, the States witnesses saw the Aldape and Carrasco mannequins for the first time. According to witnesses, the prosecutors stressed that Aldape, the man with the long hair and green shirt, shot the officer, while the shorthaired man, with the bloodied, bullet-hole ridden purple shirt, was dead. The defense uncovered yet more evidence of Aldapes innocence. By talking to those who knew Carrasco, the Aldape team determined that Carrasco was left-handed. Aldape is right-handed. The only witness who consistently testified at the trial that he saw Aldape shoot Officer Harris was Jos Armijo, Jr. Yet he originally told police that Officer Harris was shot by someone holding the gun in his left hand. Frank Perez said the man who ran by him immediately after shooting pointed a 9 mm pistol at him with his left hand. Aldapes habeas brief only summarized the evidence the team had collected. It quoted none of the affidavits the team gathered. It did not name the witnesses who would testify, many of whom feared police retaliation. The startling evidence would only be heard if the court granted an evidentiary hearing or a new trial. Although the brief argued that misconduct occurred, the court would have to grant an evidentiary hearing before actual evidence of the misconduct would be admitted. If an evidentiary hearing were allowed, Atlas would call the witnesses themselves to the stand. The court could evaluate their credibility, and the witnesses would be subject to cross-examination. The affidavits were a last resort, to be used only if the witnesses never appeared. As the execution date approached, the Aldape team worked frantically gathering further evidence, drafting and editing the

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habeas brief and researching the law as new issues were raised by the investigation. Slowly, a compelling record coalesced. The brief challenged Aldapes sentence on several grounds, including the following: Aldape was innocent, the police investigation was improper, the prosecutors committed various forms of misconduct, a hostile environment surrounded the trial, victim impact testimony was incorrectly admitted in the guilt-innocence phase of the trial, trial counsel was ineffective and his conviction was based on insufficient evidence. In addition, the brief argued that Aldape should receive a new trial or be freed because of the cumulative effect of these and other errors. The Aldape teams brief would not be the only one filed on his behalf. A collection of organizations, including the League of United Latin American Citizens (LULAC), the Mexican American Bar Association of Texas and the Texas Catholic Conference filed a brief in support of Aldape. This brief focused on the prosecutions improper use of Aldapes entry into Texas without proper documentation. The groups argued that Aldapes undocumented entry, a misdemeanor, was a nonviolent, administrative violation that had no bearing on his propensity for future dangerousness. It also argued that, contrary to the stereotype, empirical evidence demonstrated that undocumented entrants are less likely to commit crimes. The Mexican government filed a similar brief arguing that the States use of Aldapes immigration status violated the International Covenant on Civil and Political Rights. The United Nations adopted the Covenant in 1966, and thereafter Mexico and the United States ratified it. As a matter of customary international law, Mexico argued that a State is obligated to respect the human rights of persons subject to its jurisdiction, with no unreasonable distinctions between aliens and nationals. A comment to the Covenant provides that this protection extends even [to] those unlawfully in the country. Mexico stated it was deeply concerned that any representative of the State of Texas would attempt to base any sentencemuch less a sentence of deathon such a patently discriminatory factor as ones immigration status. Mexico argued, For the State of Texas to imply that an undocumented worker, based on his immigrant status alone, is somehow a danger to the community or that this

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status reveals something about the individuals criminal tendencies is troubling in the extreme. As the Aldape team neared completion of the tome, they were justifiably proud of their work. Schneider, however, remained skeptical. He had not spoken with any of the witnesses; instead, he had only read the affidavits gathered by Aldape team members. He worried that the witnesses would weaken or even flip sides under crossexamination by a prosecutor. To the uninitiated capital defense lawyers at V&E, however, it seemed as if Aldapes arguments almost guaranteed his imminent release. Whether it was hubris or naivet, most of the Aldape team imagined that Aldapes nightmare was almost over. Atlas was no exception. Over the telephone, he confidently told Harry M. Reasoner, the firms managing partner, once the court saw the mistakes that were made, Aldape should be free within a few months.
STATE COURT LOSSES

If Aldape were executed, Mexican prisoners in one border town promised that several Americans incarcerated in the same jail would pay for his death with their own lives. Given the rising tensions in Mexico over Aldapes treatment, Scott Atlas took precious time from editing and developing the brief to visit Monterrey to talk with the press and Aldapes family. He did not want the looming execution date to be the excuse for further violence. In Spanish, he told the Mexican reporters to trust the American judicial process, Please give the U.S. justice system time to operate. With an execution date of September 24, 1992, the Aldape team pushed to meet its self-imposed deadline for filing the brief, September 16, Diecisis de septiembreMexican Independence Day. However, midnight that day came and went, and the Aldape team was still polishing the document. Each of the dozen legal issues had a different author, with his or her own writing style. In addition to being legally accurate and persuasive, the brief must read as one seamless document. The editing alone demanded substantial time. Finally, at four oclock on Thursday morning, September 17, Scott Atlas finished reworking the habeas brief. Usually a runner is used to accomplish the mundane task of filing documents with the court clerk. This time, however, Atlas and several members of the

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Aldape team drove the five blocks to the courthouse to file the hefty text themselves. The court set a hearing on the habeas motion for Monday, September 21. As Atlas, Schneider, and the other members of the Aldape team drove up to the courthouse for the hearing, they were met by a phalanx of pro-Aldape protestors. Some wore shirts bearing Aldapes likeness that read Soy Inocente. Other carried placards demanding No Ms Racismo, Stop Police Abuse and Free Ricardo! Even in the courtroom, located on an upper floor, the sounds of the protesters could be heard from below. Eventually, the protesters entered the courtroom and were warned to be quiet by one of the courts officers. Aldapes family was present too, as were Mexican government officials. It would be a high profile case for the judge. Judge Densen announced he had received letters and petitions containing more than one thousand signatures from all over the world calling for Aldapes release. Amnesty International, among other organizations, publicized the case to its membership. Judge Densen would later comment: Nothing else Ive presided over has ever come close to this [reaction]. Optimistically, the team hoped that at this first hearing Judge Densen might already reveal his willingness to grant Aldape an evidentiary hearing on the issues he raised, or perhaps even a new trial. At the very least, they hoped the judge would allow more time for all the issues raised in the brief to be considered by the State and the court. Because Atlas filed Aldapes brief only four working days before the hearing, the State did not have sufficient time to study the arguments and draft a response. At the hearing, the State, quite reasonably, asked Judge Densen to postpone ruling on Aldapes motion for four months to allow it more time to consider Aldapes arguments. Atlas readily agreed to its request. If Judge Densen had in fact studied the hundreds of pages of argument over the weekend, he was not persuaded by what he read. Without hearing any evidence, Judge Densen denied all the relief. There would be no release, no retrial, no evidentiary hearing. Referring to his earlier four-month extension of the execution date in May, Judge Densen said he did not believe another four-month delay would serve justice in this case. In a curious, although surely not deliberate, choice of words, Judge Densen complained

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this case is being litigated to death. He tersely concluded the hearing with the instruction, So you will be excused at this time. The hearing ended in less than ten minutes. In slack-jawed disbelief, most of the Aldape team could not fathom that the petition was so perfunctorily denied. The Aldape team retired to V&Es offices to figure out its next move; they had been accused of trying to turn the hearing into a media circus. In reality, Atlas had nothing to do with the supporters presence. Several times anti-death penalty advocates requested permission to use Aldapes case as an example of the criminal justice systems failure, but each time Atlas refused to cooperate. His declined on two bases. First, the court was the proper forum for Aldapes defense. Second, turning the case into a political question could backfire. Raising its profile could make it harder for an elected judge to grant the necessary relief. Finally, the effort spent persuading the media and Aldapes possible future jury pool would necessarily leave less time to prepare for Aldapes legal battles. At the offices of V&E, the Aldape team assessed the situation. Not only had the Aldape team failed in attaining a new trial, they had not even secured an evidentiary hearing. This loss meant that the new evidence would not even become part of the record. An appellate court would not be able to review the affidavits. A more immediate problem, though, was simply keeping Aldape alive long enough to allow an appellate court to review Judge Densens decision. Since Aldape was scheduled to be executed that Wednesday night, Atlas asked Judge Densen to postpone the execution. A stay would allow Aldape time to seek habeas relief from an appellate court. Judge Densen denied the stay request. The Aldape team was forced to fax a stay request to the Texas Court of Criminal Appeals. This court, to its credit, quickly granted the stay. Despite the loss, there was some hopeful news for Aldape. Through the cooperation of the Texas attorney generals office, the court set no new execution date. In other words, once the Texas Court of Criminal Appeals stayed the execution, Aldape no longer confronted a specific execution date. Thanks to the stay granted by the Texas Court of Criminal Appeals, the Aldape team was free to concentrate on Aldapes next step, a petition for writ of habeas corpus relief to the Court of Criminal

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Appeals. Just because the court granted the stay did not mean that it would grant Aldape the habeas relief he sought. The stay was only designed to afford the court an opportunity to review Aldapes arguments. The Aldape team began working on its second major brief. That fall, Atlas filed Aldapes habeas brief with the Texas Court of Criminal Appeals. Unlike the unexplained delay that occurred on Aldapes direct appeal, this time Aldape was not forced to wait six years before the court decided it was ready to rule. The court decided it would not be aided by questioning counsel and never scheduled Aldapes habeas petition for oral argument. Instead, on January 13, 1993, the Texas Court of Criminal Appeals issued a one-page, four-paragraph unpublished decision. The court denied Aldape any relief. It wrote a per curiam decision, which meant that no individual judge need sign the opinion. With a per curiam opinion, an individual justice need not acknowledge that he joined the majority. Two justices, without noting why, dissented. Aldapes latest lawyers, after six months of work, hundreds of thousands of dollars in legal time and expenses for experts and investigators, had lost again. Atlas was shaken by this second defeat. It seemed incredible that no court was willing to hear the recently uncovered evidence before rejecting Aldapes claim. It was apparently not enough for the brief to promise that an evidentiary hearing would prove Aldapes innocence. Perhaps the court had heard it too often before, only to find the evidence of innocence less than compelling. Sometimes one hears of the delays caused by successive petitions for writs of habeas corpus filed solely to delay execution. However, Aldape did not fall into this category; it was Aldapes first petition. Still, the state courts of Texas were unwilling to entertain any new evidence that might spare his life. If the only avenue of relief had been the state court system, Aldape would have been executed in 1993. Aldapes mood, and the teams, reached its lowest point with this double blow.
FEDERAL COURT RELIEF

When a state court denies habeas relief, a petitioner can then attempt to interest the federal court system in providing a remedy. Changes in the habeas law by Congress in 1996 all but foreclosed meaningful federal habeas review; however, in 1993 this avenue re-

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mained viable. Aldape looked to the federal courts of the Southern District of Texas, the district in which Houston was located, for relief. The team prepared Aldapes latest habeas corpus petition. Unintentionally, Judge Densen, in one respect, had made it easier for Aldape to obtain relief in federal court. Without the state court having heard testimony and entering findings of fact, the federal district court judge would have greater discretion when reviewing Aldapes habeas corpus petition. The judges swift dismissal might redound to Aldapes benefit after all. First Aldape and then the State filed their briefs. After a round of reply briefs were filed with the court, there was once again nothing left to do but wait for a ruling. As with the state courts, the Aldape team hoped to win at least an evidentiary hearing from the court. An evidentiary hearing would provide the court with an opportunity to decide what further relief, if any, was warranted. On September 30, 1993, Atlas received an order from the federal district court clerks office. The court had read the briefs and issued an opinion. Atlas notified his client and everyone on the team that Judge Hoyt had granted a limited evidentiary hearing. The hearing would be confined to the issue of police and prosecutorial misconduct. Aldape would also have to demonstrate that the misconduct actually harmed him. If Aldape could convince the court that he was actually innocent, that would help persuade the court that he had been harmed by the misconduct. Judge Hoyt set the hearing for November 15, 1993. Beyond the welcome news that the hearing would proceed, the Aldape team was buoyed by the courts choice of words. In his order, Judge Hoyt stated that he had reviewed the witnesses original statements, their later statements, the circumstances that allegedly gave rise to the later statements, the testimony and the trial antics that occurred during trial. Based on this review, he determined that the conduct of the police officers and the behavior of prosecutors may have tainted the in-court identification resulting in misidentification. We are very, very pleased with the decision, commented the Mexican Consul General in Houston. Aldape and his family in Mexico were ecstatic. God has answered our prayers, said his mother. His community supporters rejoiced. The Aldape team breathed a collective sigh of relief.

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EVIDENTIARY HEARING

COURTROOM REVELATIONS: THE FORENSICS EXPERT

So began the fight for Aldapes life in the evidentiary hearing scheduled by Judge Hoyt to begin at 9:00 a.m. on November 15, 1993. As usual, Aldapes family, officials from the Mexican government, and Aldapes supporters were in attendance. The Sunday before, in fierce rain, Aldapes supporters marched from the crime scene to a rally on his behalf. Now everyone watched to see if Aldape could fulfill his promise of providing new evidence demonstrating his innocence and official misconduct. Atlas elected not to give a twenty-minute opening statement, but confined his initial comment to the following:
We are here to prove that there was a misidentification of the shooter. In other words that Ricardo Aldape Guerra is innocent of the shooting of the Houston police officer, James Harris, and that police and prosecutorial misconduct is responsible for that misidentification.

Atlas first called Floyd E. McDonald to the stand; he performed consulting work in forensic chemistry. McDonald explained how one could use the physical evidence to determine where Officer Harris stood when he was shot and where the shooter must have been. He examined the trajectory of the bullets based on the position of the spent shells, blood pool, blood splatter and bullet holes. He prepared a diagram that placed the shooter to the east of the officer shooting west. Line by line, Atlas read the testimony that Aldape had given to police late the night of the shooting. McDonald confirmed, line by line, that the physical description of the crime he reconstructed was consistent with Aldapes statement. On cross-examination, the State elicited that McDonald was not on the scene of the murders on July 13, 1982, but failed to shake his testimony. The flight path of the lethal bullets, as explained by McDonald, could simply not have come from someone who stood where the witnesses placed Aldape. Bullets cannot take a ninety-degree turn in mid-flight.

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BLAME THE ONE WHO LOOKS LIKE GOD

Witnesses who were children at the time of the murders now testified as adults. Over the course of the week, they revealed for the first time the troubling, complete account of the events leading to Aldapes conviction. The questioning revealed how the witnesses who were at the crime scene the night of the shootingincluding Jos Armijo, Jr., Hilma Galvn, Elena Holgun, Trinidad Medina and Elvira Flores had time to discuss what had happened. On this occasion, Frank Perezs testimony was of invaluable clarity for explaining how the witnesses were manipulated the night of the shooting. In the first place, Perez heard what Elvira Flores said about the shooting: All I did was I heard the gunfire, Flores explained, I hit the ground and crawled and ran toward the house. If Flores only heard the gunfire but did not see the shooting, she could not identify Aldape as the shooter as she had at Aldapes trial. Perez also explained how that day, after being at the crime scene, detectives took him to the third floor of the Houston southside police substation with over a dozen other witnesses from the neighborhood. He sat on benches with the other witnesses outside the detectives offices. Perez left the bench to give his statement to the police. He told the officer everything he had seen. However, the officer pressured Perez to change his written statement. When asked if he was 100 percent sure that the object the second man dropped was a gun, he told the officer taking his statement that he was only 98 percent sure it was a gun since it could have been a toy gun. The officer told Perez that if he was not 100 percent certain it was a gun, he should call it an object. Dutifully, Perez scratched out the word gun on his statement and wrote object. Perez later gave this same information to both prosecutors about what he saw. Perez testified that the prosecutors told him they would call later if they needed him. The prosecutors never called back. After Perez gave his statement, an officer returned him to the hallway bench, with all the other witnesses. While seated, and before the lineup that occurred later that evening, Perez testified that the police escorted Aldape down the hall, handcuffed or something like that, with bags over his hands. Perez explained how the residents of Magnolia reacted to the sight: The ladies and the girls

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that were sitting on the bench basically were pointing at him in fear and basically indicating, Is that him? Is that the one you saw? I dont know. Is that him? It could be. I think it is him. In particular, although no one seemed sure who the shooter was, Perez said, I remember Miss Galvan basically asking Jos Armijo, Jr., Is this the man that you saw shoot your daddy? In response, Jos, Jr. could not give any evidence or indication that he was the shooter. Basically he indicated that he didnt know. Elvira Flores and Hilma Galvans stories began to focus on Aldape. Perez explained to the court, As the hours went on and as basically Aldape was walked through the hall, all of a sudden it seemed that the stories were basically coming together that he was possibly the shooter. Finally, at six in the morning, he joined the others from the neighborhood to view a lineup. Again, he heard loud whispers from Flores and Galvan, saying Blame the one who looks like God. Perez told police that no one in the lineup matched the description of the man who had pointed a gun at him. Asked by Atlas what he thought of the lineup, Perez said, I thought it was a joke. You dont march somebody in front of all your witnesses. On cross-examination, the State elicited testimony that Perez never saw the shooting itself. It also tried to shake Perezs identification of the second mans weapon as a 9 mm. Perez explained that he had been to a firing range before July 1982 and had used a 9 mm. Perez confirmed that the police had warned witnesses not to discuss the crime among themselves. The State, however, was unable to alter Perezs critical testimony, and the witness was excused. The Aldape team was delighted. Perez, with nothing to gain from his testimony, had shed light on the police and prosecutors conduct and raised questions about Aldapes guilt. The joke lineup he described also explained some witnesses identifications of Aldape as the shooter. At nine oclock the next morning, the hearing resumed. Atlas called Donna Monroe Jones to the stand. She served as one of the original jurors. She repeated the same concerns about the trial and the prosecutors use of the mannequins that she had reduced to an affidavit in 1982. After her brief testimony, Atlas called Herlinda Garcia to the stand.

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Garcia testified that she told an officer that night the same facts she was telling in open court today about the shooting. Atlas asked how the officer responded when she told him that Carrasco shot Officer Harris. He didnt say anything, Garcia began, He just when I tried to explain to him who I seen shooting the police officer, he was being real rude to me, scaring me. He told me that, you know, that he is not the one who shot the police officer. Atlas concluded his direct examination of Garcia by establishing that she found Aldapes lawyers in 1992 after she heard they were looking for her. Why, Atlas inquired, are you coming forward now with the truth? Because I seen what happened and I know that he didnt dohe didnt shoot the officer or that man. I know that he didnt do it. On cross-examination, the State pointed out the inconsistencies between Garcias 1982 trial testimony and her testimony in the evidentiary hearing. Garcia explained that she had been scared in 1982. The State also established that her husband in 1982 was himself sentenced to die in 1991 for the murder of an elderly neighbor. Garcia said she no longer wrote or visited him. After some follow-up questions by the court, Garcia was excused. For her part, Linda Hernandez, the official interpreter at the original trial, testified about the lack of professionalism and errors made by the interpreter who replaced her. A few days after the trial testimony began, she was replaced at the prosecutors insistence over the objection of Aldapes lawyers. She testified that the new interpreter did a poor job in a manner that prejudiced Aldape. The new interpreter made seventy-four errors by failing to interpret some parts of the lawyers questions and the witnesses answers, adding words in both and misinterpreting questions and answers dozens and dozens of times. Occasionally, he even changed the meaning of both the questions and the answers. Hernandez also described the interpreters unprofessional demeanor, use of theatrical gestures and jocular attitude toward a key Aldape witness, Heredia, which detracted from his testimony and damaged his credibility. Atlas next called Elena Gonzales Holguin, who testified that the police handcuffed her for not being cooperative. Her lack of cooperation consisted of telling a police officer that she hadnt seen anything. But the police officer told her I should try to re-

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member. She continued, He yelled at me and he told me that I had the right to help in the investigation, and I told him that was his job, that he should do the investigation. After that, he got angry and he handcuffed me and he threw me inside a patrol car. Barefoot at the scene, she reported that police denied her a chance to retrieve her shoes, so she remained barefoot all night. The last witness called on the second day of the evidentiary hearing was Jose Angel Heredia. At trial, he was only fourteen when he first testified. Like the prior witnesses, he, too, remembered seeing Aldape in a position where he could not have been the shooter. He further testified that Hilma Galvan could not have seen the shooting. At the moment Officer Harris was shot, he swore that Galvan was inside her house. He also addressed the epithets the prosecutors used during the trial to describe him. The prosecutors had slandered Heredia by accusing him of being under the influence of drugs or alcohol when he testified in Aldapes favor.

THEY THREATENED TO TAKE MY DAUGHTER AWAY

On day three of the evidentiary hearing, Atlas called Patricia Diaz to testify. She was only seventeen when Officer Harris and Jos Armijo, Sr. were murdered. Immediately before the shooting, she was in her Chevy Nova at the intersection of Walker and Edgewood. Diaz was accompanied by her daughter and by her aunt, Trinidad Medina. Diaz swore she saw no one shoot the officer. She only caught a glimpse of Aldape immediately after the shooting. Like other witnesses, Diaz placed Aldape six feet south of the officers open door. Diaz saw Aldape immediately after the gunshots sounded. Aldape had his hands outstretched on the police car, palms down and empty. Shortly after the shooting, she was questioned by the police while still at the intersection of Edgewood and Walker. She testified that the police did not act professionally in a way that would uncover the truth. Diaz said the police used a lot of obscene language. Their conduct intimidated her. They were yelling and cursing a lot and scaringthey scared me. The police were apparently unwilling to accept Diazs answer that she had not seen the actual shooting. . Did you tell them that you hadnt seen the shooting? probed Atlas. Yes, she responded. Did they threaten

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any kind of action against you unless you told them something else? Atlas then asked. Yes. They told me if I didnt tell them more than what I had seen they were going to take my daughter away from me. You could feel the tension rise in the courtroom. This was the most explosive charge made against the police on the scene. Additionally, the interviews with individual witnesses before the hearing had revealed special preparatory sessions that were conducted by the prosecution. Atlas explored these events with Diaz. Like a few of the witnesses, Diaz was invited to the prosecutors preparatory meeting before trial. At the meeting, she first saw the mannequins. She testified they scared and startled her because there was a man that had blood stains and bullet holes. She testified that the prosecutors also had photographs of the two men. They used the photos to clarify who died and who faced trial. Diaz testified, they showed the picture [of Carrasco] when [he] was in the morgue and they said, this is the man [Carrasco] that got shot in the shootout by the cops, and this, indicating Aldapes photo, is the one that shot the cop. She did not try to correct them because the prosecutors were the ones doing all the talking. On cross-examination, the State pointed out the inconsistencies between her evidentiary hearing testimony, her original statements, and her trial testimony. The State asked Diaz if she ever contacted the Internal Affairs division of the Houston Police Department to complain about the mistreatment of her aunt. Diaz admitted she had not approached the police to complain about either of their mistreatment. Atlas was unconcerned that Diaz had not reported the mistreatment to the police. Atlas hoped the Court would agree. It seemed almost laughable that this young witness, given the threats she endured, would file a formal complaint. The State failed to question Diaz about the threat to take her baby, making the tactical decision to leave this allegation of misconduct unexplored on cross-examination. Next, Atlas called Roberto Onofre to the stand. Onofre had lived at 4907 Rusk with Aldape, but had not testified at the 1982 trial. Onofre concluded his testimony by noting that Carrasco was lefthanded. Onofre had seen him mimic shooting with his left hand. He testified that Aldape was right-handed. Atlas had finally placed before the Court evidence neither side presented to the jury in 1982.

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Aldape could not have been the left-handed shooter that Jos Armijo, Jr. originally identified because Aldape was right-handed. The third day of testimony ended. The day produced the most compelling evidence yet. As Atlas explained to a Houston Chronicle reporter, The jury heard none of this evidence, the most helpful of which was unknown by Aldapes lawyers at the time of trial. It is hard to believe that any jury that heard this evidence would have convicted Aldape, much less sentenced him to die. On the fourth and final day of Aldapes case, Stan Schneider and Tom Gee presented the witnesses. Before Aldape could call a witness to the stand however, the State moved the court to allow it to amend its witness list. The State wished to call more officers to testify than it had earlier named. For its part, the defense, through Schneider, called Candelario Elizondo, one of Aldapes trial attorneys. Elizondo testified that in 1982 he was unaware of the police misconduct that was revealed during the evidentiary hearing. He found that few witnesses were willing to speak with him. This recalcitrance gave him no opportunity to uncover the misconduct. The record relinquished by the police also mentioned that certain witnesses were audiotaped. Elizondo said he could not recall ever hearing or seeing those tapes. He did recall being told that the trace metal detection tests were negative for both Aldape and Carrasco for the 9 mm pistol. In other words, neither tested positive for the murder weapon. He did not actually receive the tests themselves, though, until the morning of trial. The States expert, Amy Heeter, had misled the defense before trial into believing that she and the prosecutors had found a trace metal pattern on only one of Carrascos hands. By failing to inform defense counsel before trial about the pattern on Carrascos other hand, Heeter and the prosecutors deprived Elizondo of information that would have caused him to hire his own trace metal expert, who could have testified that Carrasco had an imprint for the murder weapon on his left hand. This testimony would have impeached the testimony of both Heeter and Jos Armijo, Jr. By the time Heeter testified at trial about the second pattern, it was simply too late.

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Continuing with the evidentiary hearing, calling its first witness, the State only strengthened Aldapes case. The first witness to testify for the State was Sergeant Webber, who continuously contradicted himself while describing his experiences the night of the shooting. At a bench conference following his testimony, the assistant district attorney apologized to Judge Hoyt, saying she had not been able to meet with Webber to review the details from the eleven-year-old case before he testified. He is not intentionally attempting to mislead the court, she explained. She was undoubtedly correct. A misstatement so obviously rebutted could not have been intentional, but it demonstrated how a memory could be created to confirm what the officer thought to be true, that Aldape was the shooter. Following the testimony of several officers who participated in the pursuit and arrest of Aldape, the State called its last witness, George Brown. Brown would be the only witness from the neighborhood called by the State. Even though the State listed Jos Armijo, Jr. as a witness, it failed to bring him to the evidentiary hearing. If the State were to present a different version of the events of July 13 than that provided during Aldapes case-in-chief, it would have to be accomplished through Brown. Brown had testified at the original trial when he was seventeen. Brown explained to the prosecutor that on July 13, 1982 he was walking his dog when the Buick ran him into a ditch. He thought Aldape was a passenger. After Officer Harris arrived, Brown stated that [h]e shined his spotlight on me and told me, Isnt it a little late to be out? Brown answered that he was walking his dog and told the officer about the near miss, including a description of the speeding car and the direction it was headed. A few minutes after the officer left, Brown heard shots. Brown starting jogging toward the location where he thought the shots originated when he saw a young man running across on Lenox, he looked like he was tucking something in his pants or pulling something out. He was not able to identify the person as either Aldape or Carrasco. Brown, now joined by his friend Frank Perez, continued jogging until he reached the officers car. He found Officer Harris in a pool of blood. He checked the officers pulse and then noticed that the officers weapon was missing. Frank Perez

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then told Brown that a man had pulled a gun on him, dropped it and then retrieved it. Then some of the most startling testimony of the evidentiary hearing came out. That the testimony came from one of the States witnesses made it that much more compelling. During Aldapes case-in-chief, Judge Hoyt heard testimony about a newscast suggesting that some police officers initially thought that Jos Armijo, Sr. was the killer and left him alone while he bled to death. The States own witness, George Brown, testified that officers, in effect, left Jos Armijo, Sr. to die. The police found the time to draw a chalk outline around the bloodied paper Brown used to clean his hands, but no time to aid Armijo. Not only was the decision to ignore the plight of an innocent civilian cruel and immoral, but the heinous act also materially affected Aldapes defense. Jos Armijo, Sr. had probably witnessed the officers murder. He might have been able to identify Carrasco as the killer if he had lived. His ability to identify the shooter probably explained why Carrasco shot him. He was mumbling when Brown initially approached him, but Jos Armijo, Sr. slipped into a coma and died a week later. In addition, Brown had apparently been the beneficiary of special treatment on the night of the shooting. Brown testified that he did not have to wait in the hallway on the benches outside of the homicide division with the other witnesses from the neighborhood. Detectives took Brown into an office or a cubicle and asked to give a statement. Afterward, unlike his neighbors, he was allowed to remain in the relatively more comfortable office. Atlas explored why Brown might have been treated differently from the other witnesses by the police. One could easily come to the conclusion that the police were allowing Brown to remain in the office merely because they thought him an Anglo. Following Browns testimony, the court recessed for lunch. Over the lunch break, the Aldape team retired to a nearby restaurant. The States unintentional help in proving Aldapes case was the main topic of conversation. Browns riveting testimony that the police left Armijo, Sr. to die buttressed the teams theory that the police were willing to do whatever it took to get the killer. When the police assumed, albeit mistakenly, that the killer was Jos Armijo, Sr., he was left to perish. If they were willing to let the killer die, what

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else might they do to assure the conviction of the man they now thought was the murderer? Once the evidentiary hearing ended, there was nothing for the team to do in the ensuing months as Aldape and his attorneys awaited the courts ruling. Aldape was impatient, but hopeful. Given the way the testimony developed, there was much about which to be optimistic. Spring gave way to summer as the months went by without an answer. Aldape repeatedly asked what might be causing the delay. Atlas could not answer his question; he could only reassure him that he would be notified immediately once Atlas received the courts order.
MERCHANTS OF CHAOS

Finally, on November 14, 1994, the Court issued its opinion, exactly one day short of a year after the first day of the evidentiary hearing. The wait proved worthwhile. Judge Hoyt granted Aldapes motion. In an opinion as blunt as it was lengthy, Judge Hoyt did not mince words:
The police officers and the prosecutors actions described in these findings were intentional, were done in bad faith and are outrageous. These men and women, sworn to uphold the law, abandoned their charge and became merchants of chaos. It is these type of flag-festooned police and law-and-order prosecutors, who bring cases of this nature giving the public the unwarranted notion that the justice system has failed when a conviction is not obtained or a conviction is reversed. Their misconduct was designed and calculated to obtain a conviction and another notch in their guns despite the overwhelming evidence that Carrasco was the killer and the lack of evidence pointing to Ricardo Aldape Guerra.

Judge Hoyt held that the police and prosecution intimidated the witnesses to dissuade them from testifying or to persuade the witnesses to change their testimony. Judge Hoyt wrote that he was confounded by the police decisions to handcuff two innocent women, threaten to revoke the parole of anothers common-law husband and repeatedly, day after day in the early morning hours,

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search the residence of innocent people. [. . .] This conduct alone, he wrote, speaks volumes about the intimidation suffered by these children caught up in the police net and the circumstances. Convinced by the words of the witnesses who were willing to testify at the evidentiary hearing despite their fear of reprisal, the court believed the witnesses statements changed over time while held at the station and as word spread that Carrasco was dead. It was not a coincidence that police took statements shortly after the shooting that were essentially exculpatory of Aldape, but after learning of Carrascos death and after the lineup, the police took additional statements that contradicted or impeached the prior statements in some subtle and other not so subtle ways. The court was convinced that the improper walk-through of Aldape and the improper lineup, combined with Hilma Galvans pressure to identify Aldape, the mojado, explained Jos Armijo, Jr.s belief that Aldape was the shooter. Other pretrial conduct bothered the court. Judge Hoyt was convinced that the witnesses testimony was tainted by the reenactment. He held the prosecutors responsible. The reenactment, he wrote, allowed the witnesses to overhear each others view and conform their views to develop a consensus view. Judge Hoyt faulted the police and prosecutors for failing to disclose evidence that would have demonstrated Aldapes innocence. They both had a duty to accurately record the statements of the witnesses, to fairly investigate the case and to disclose all exculpatory evidence. The trial conduct of the prosecutors also bothered the court. The life-sized Carrasco and Aldape mannequins, were utilized then and throughout the trial to reinforce and bolster the witnesses testimonies. In addition, he held that the prosecutors knowingly used false evidence and illegitimate arguments at trial. Both prosecutors claimed as fact, in closing argument, that five eyewitnesses, who had not conferred with each other, told the police that Aldape killed officer Harris and Mr. Armijo and had identified Aldape at the lineup, even though, Both prosecutors knew that this was factually incorrect because at least one of the prosecutors was at the scene shortly after the shooting and participated in the gathering and interviewing of witnesses.

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Judge Hoyt did not believe the prosecutors testimony that they had never heard witnesses deny seeing Aldape shoot Officer Harris. He noted that both had participated in the reenactment and the pretrial weekend meeting where he found that the various statements of the witnesses were discussed and conformed. He also faulted them for using the offense of unlawful entry into the United States to argue that the death penalty was more appropriate. Judge Hoyts conclusion was unmistakable: There is no doubt in this Courts mind that the verdict would have been different had the trial been properly conducted. He ordered the case remanded back to the 248th Criminal District Court, where the district court was to retry Aldape within thirty days or release him. At long last, the factual investigation, the legal research and the extensive briefing produced results. It only took one-and-a-half million dollars in attorney pro bono hours and more than two hundred thousand dollars in experts fees and other out-of-pocket expenses. By comparison, Candelario Elizondo, Aldapes trial counsel, had struggled to get $700 from the district court in 1982 to hire an investigator. Under federal law, a small percentage would be reimbursed to the attorneys. This would only cover time spent on federal court proceedings, not the much greater amount of time spent in state court. On its face, Judge Hoyts order made it appear as if Aldape might be free within thirty days if he were not retried. However, the thirty-day clock to release Aldape stopped running when both Aldape and the prosecution filed motions requesting technical corrections and clarifications on several factual points. While the court considered what, if any changes, it would make in its order, Aldape remained in prison. Eventually, on May 19, 1995, Judge Hoyt issued a new order, clarifying his November 1994 order in some minor respects. For example, in the first opinion the court said Carrasco had blond hair, when, in fact, he had brown hair. In the new order, the court wrote, While both Carrasco and Aldape had dark hair, the use of Carrascos nickname, Gero, which means lightskinned or light colored, blond-like hair, to describe the shooter may have confused the police interviewers. Shortly after the court issued its revised order on June 5, 1995, the Texas attorney general announced his plans to appeal the deci-

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sion to the Fifth Circuit Court of Appeals. The federal district court refused to stay its order, which called for Aldapes release if he were not retried within thirty days, but the Fifth Circuit granted the States request for a stay. Thus, Aldape remained behind bars awaiting the States appeal.
APPEAL TO THE FIFTH CIRCUIT

Aldape had trouble understanding why he stayed behind bars after a federal judge issued an opinion finding that the police and prosecutors engaged in conduct that resulted in the jailing of an innocent man. Atlas explained that the district courts opinion was not the final word. The State properly exercised its right to challenge the decision on appeal. Three Fifth Circuit judges would review Judge Hoyts opinion. More time was lost as the court reporter prepared the record from the federal district court evidentiary hearing. On December 27, 1995, with the record completed, the Texas attorney generals office filed its brief with the Fifth Circuit. The States brief concluded that Judge Hoyts findings were either clearly erroneous or legally irrelevant. The Aldape team filed its brief in March 1996. As in earlier proceedings, Aldape was aided by additional briefing on his behalf from various amici curiae. One such brief was filed on behalf of the Allard K. Lowenstein Human Rights Clinic, the Southern Center for Human Rights, the Lawyers Committee for Human Rights, the International Human Rights Law Group and several respected law professors from around the country. Their brief took the State to task for its continuing defense of the prosecutions use of Aldapes immigration status during voir dire and sentencing. Far from denying that such an appeal to ethnic prejudice and antiimmigrant bias occurred, the State had continued to insist that the inferences that the jury might be able to draw from the fact [of Aldapes immigration status] could legitimately shed light on whether a death sentence was appropriate. The amici briefs authors stated they were unaware of any death penalty case specifically permitting the defendants immigration or nationality status to be considered during the sentencing phase of the trial. Aldape did not have to wait long to hear from the court. The Fifth Circuit quickly granted oral argument. The court would lis-

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ten to both sides on May 1, 1996 in New Orleans, Louisiana, where the Fifth Circuit is based. Whereas the evidentiary hearing lasted a week and a retrial would likely last months, oral argument would be over in less than an hour. Aldape was not present at the oral argument, but a representative from the Mexican Consulates New Orleans office was. The party who lost in the court below, called the appellant, addresses the Fifth Circuit first. Only rarely does the States attorney argue first in the Fifth Circuit on a habeas petition, as the State rarely loses such cases in the trial court. The State was challenging the district courts order this time, not seeking to defend it. Assistant Attorney General William E. Zapalac made his argument by providing a factual summary of the case in which he correctly noted that all the physical evidence implicated Carrasco. It was only the witnesses identifications that made the police and prosecutors suspect Aldape. In the oral arguments before the Fifth Circuit, the most notable point was that, in response to a question by one of the judges, Zapalac was forced to concede that Judge Hoyts findings of fact could only be overruled if they were clearly erroneous. This was the standard of review the Fifth Circuit must apply. In other words, the Fifth Circuit could not overturn Judge Hoyts decision if it merely disagreed with him; rather, his decision must be clearly erroneous before it could be reversed. It is a difficult standard to meet. If Aldape had lost in the district court, it would have been equally difficult for him to reverse the trial court. Zapalac conceded that if Judge Hoyts factual findings were correct, Aldape deserved a new trial. Once the oral arguments were completed, Aldape did not have to wait long for the court to rule. The Fifth Circuit released its opinion on July 30, 1996. The judgment of Judge Hoyt, in a unanimous opinion, was AFFIRMED. The Fifth Circuit had examined the district courts finding that Herlinda Garcia, Patricia Diaz and Frank Perez gave police and prosecutors material exculpatory information that was not disclosed to Aldapes defense team. Such non-disclosure, the Fifth Circuit held, violated Aldapes constitutional due process rights when there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. The Fifth Circuit examined the testimony of Garcia,

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Diaz and Perez and found that these three examples alone supported a due process violation requiring habeas relief. Aldape, although relieved, was painfully aware that even with the latest opinion, he remained locked up, separated from his family. Aldape wanted to know, What does it all mean? Atlas explained that the State had a right to request a rehearing in the Fifth Circuit or file a petition for writ of certiorari with the U.S. Supreme Court. In either case, Aldape would then be allowed to file a brief in opposition. If the Fifth Circuit and Supreme Court elected not to hear the case, it would be remandedor returnedto state district court. If the Supreme Court chose to decide the matter, the State and Aldape would file new briefs, present oral argument to the high court and then await its opinion. Aldape was becoming increasingly frustrated that winning opinions did not garner his release. Without comment, the Texas attorney general allowed the deadline to pass for challenging the Fifth Circuits decision. The attorney generals office had decided not to request a rehearing by the panel that issued the opinion or by the whole court. The attorney generals office had also chosen not to challenge the ruling before the U.S. Supreme Court. The fight for Aldapes freedom would thus return to the 248th State District Court as originally ordered by Judge Hoyt. The stay on Aldapes release, however, remained in place. Therefore, Aldape remained imprisoned. Almost four years after its state court losses, the Aldape team prepared to take the fight back to state court. VINDICATION
RETURN TO STATE COURT

In 1996, Aldape appeared before the 248th State District Court for the third time. Delay for Aldape had many risks, including further misconduct. While waiting to appear in Judge Voigts courtroom, a uniformed officer pulled Aldape out of the holding tank and took him to an area where they would be alone. The officer expressed sympathy with Aldapes plight and wanted to know what really happened the night of the shootings. It seemed to be a transparent attempt to elicit what the officer hoped would be a confession. After learning of the misconduct, Atlas addressed his concerns

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about the matter to Judge Voigt in a letter. He used the incident to impress on the court the need for a firm trial setting. To his credit, Judge Voigt quickly enjoined all law enforcement officers in Harris County from attempting to discuss the case with Aldape. For this stage of the legal proceedings, the defense brief argued that, given that the Fifth Circuit had affirmed the finding of misconduct by police and prosecutors, the tainted testimony from the 1982 trial should be inadmissible. Like Aldapes lawyers, the State was also attempting to contact the witnesses. However, its tactics soon drew complaints. Herlinda Garcia, Trinidad Medina, Frank Perez, Jose Heredia, Elena Holguin and Patricia Diaz were all represented by Jim Lavine, a Houston criminal attorney. Lavine agreed to represent the group after some complained that certain members of the Houston Police Department were attempting to intimidate them into making their testimony fit the States case. In one such interview in August 1996, an officer allegedly ridiculed and yelled at one of the witnesses. At the October 18, 1996 hearing, Judge Voigt set jury selection for the retrial to begin on December 2, 1996. Jury selection was expected to last at least a month. Atlas and Schneider hired a consultant and began working with him to help them select a jury. The guilt phase of the trial would begin with the new year. Aldape, seated with his attorneys, was glad to learn he would finally have a chance to prove his innocence based on the new evidence. At the hearing, prosecutor Casey OBrien urged the court to grant a new evidentiary hearing and allow twenty-two more witnesses to testify. He claimed the State was not given a fair hearing in federal court because Judge Hoyt had not allowed eight officers to testify. Even though the Texas attorney generals office never argued to the Fifth Circuit that the hearing before Judge Hoyt was unfair, the State advanced this argument in state court. The prosecutors wanted a chance to call witnesses who Judge Hoyt did not allow them to add at the last minute and witnesses that were never even named in the federal hearing. Despite all of this, about a week before voir dire was to begin, Aldape received bad news from Atlas. On November 26, the Aldape team disappointedly learned that Judge Voigt canceled the December 1996 trial date. Surprising everyone, Judge Voigt announced

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that his courtroom, which held only fifty-seven people, was not big enough to hold the 100 potential jurors that would be needed for voir dire. He said no other courtroom was available. Aldape was once again left dangling. The court was not helpful in suggesting when, if ever, a new trial date might be set. It depends on available space. I cannot speculate, he remarked. Later, at a hearing held before Judge Maloney on February 6, 1997, he granted the States request for a new evidentiary hearing, allowing the prosecution to call its additional witnesses. Instead of preparing for a new trial, the team prepared for a second evidentiary hearing. Even though Aldape was disappointed in the further delay of his retrial, Judge Maloneys promise to put the case on a fast track provided some comfort. The second evidentiary hearing would occur in less than two weeks. During the February 6 hearing, Judge Maloney did not rule on the question of whether he was bound by the federal courts factual findings. Rather, the court decided to postpone ruling on the issue until after the second evidentiary hearing. The state court evidentiary hearing would not be a duplicate of the federal court evidentiary hearing. Back at the office after the hearing, the Aldape team discussed the effect of the ruling. The hearing was a setback for Aldape because it would delay a retrial and any other relief Aldape might receive. However, although the State won another bite at the apple and would present a legion of officers and others, the Aldape team could now cross-examine the rest of the States witnesses. If Aldape were ever retried, this chance to test the knowledge of the States witnesses and pin them down would prove invaluable. Furthermore, if the court had granted Aldape any relief, the State would undoubtedly have appealed. A second evidentiary hearing, coupled with favorable findings by Judge Maloney, would make it easier to prevent a reversal on appeal. The question became, could the Aldape team convince Judge Maloney that Judge Hoyt reached the right result in finding police and prosecutorial misconduct?
SECOND EVIDENTIARY HEARING

On February 17, 1997, the second evidentiary hearing began. Aldape carried two titles in this hearing. Aldape was the peti-

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tioner because he urged the court to grant his habeas petition, and the defendant because the State was preparing to retry him. Petitioner and Defendant Aldape bore the burden of proving in this second hearing that the evidence tainted by misconduct should be barred from the jury during any retrial. Because he bore the burden of proof, Aldape would present his case first. Atlas decided, though, that no new witnesses would be presented during Aldapes case-in-chief. Judge Maloney, with no objection from either side, had admitted into evidence the 1982 trial testimony and, more importantly, the testimony from the 1993 federal evidentiary hearing. Convinced that the record in the federal evidentiary hearing adequately supported the relief Aldape sought, Atlas formally rested as soon as the hearing began. The State was free to begin with its case. The State then announced its intent to call sixteen people to testify. None had testified in the federal court. There were two categories of witnesses, officers who were somehow involved in the case and civilians who were present at Walker and Edgewood. Most intriguingly, the State declared that it would call Hilma Galvan, who was accused by witnesses at the federal evidentiary hearing of pressuring others to identify Aldape as the shooter; and Jos Armijo, Jr., whose testimony likely convicted Aldape. However, in what was a pleasant surprise for the defense, the testimony of these witnesses revealed their confusion regarding the facts of the shooting and the subsequent investigations. In fact, Judge Maloney himself, after the first day of testimony, asked the prosecutors if they have a witness that could point to Aldape as the killer. After the second day, when the police officers testified, Atlas was convinced that comments by the prosecutor herself had highlighted the ethnic prejudice that contaminated the States case. When the hearing ended, in response to questions by the press, even the widow of the slain officer said she was not willing to say whether Aldape was guilty of her husbands murder.
THE RULING

On April 3, 1997, Ricardo Aldape Guerra turned thirty-five. This marked fifteen birthdays spent in prison. With the conclusion of the evidentiary hearing, the Aldape team was kept busy prepar-

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ing the papers that would help guide the judge in what everyone prayed would be an opinion ordering Aldapes release. Drawing on the trial, the federal evidentiary hearing and the state evidentiary hearing, both parties marshaled the facts and law to support their respective positions. Given Judge Maloneys demeanor and comments at the evidentiary hearing, some Aldape team members believed the court might forbid Aldapes retrial and free him on bail while the State appealed the opinion. Atlas did not. This time, at least, whatever the result, Aldape would not have to wait long for the opinion. True to his word to bring the case to a conclusion as quickly as justice permitted, Judge Maloney called a hearing for Monday, April 14, 1997, to announce his decision. Initially, it seemed as if Aldape would win a complete victory. Expectations grew when Judge Maloney stated, the court finds that much of the testimony of the officers was not credible and was not sufficient to overcome the evidence, establishing police and prosecutorial misconduct. He continued by finding that the police did intimidate witnesses and that the police and prosecutors used unnecessarily suggestive identification procedures in an effort to manipulate the witnesses statements and testimony, and failed to disclose materially exculpatory evidence. He further held that the actions of the police and prosecutors were done in bad faith, designed and calculated to obtain a conviction despite the overwhelming evidence that Carrasco was the shooter and killer. From the defenses perspective, he could not have drafted more helpful findings of fact. However, as Judge Maloney read his conclusions of law, it became apparent that Aldape would be deprived of what he wanted most, an order forbidding a retrial. Spirits sank as Judge Maloney stated, the court has found intentional misconduct on the part of the police department and on the part of the prosecution; however, the court concludes that the State is not barred from re-trying petitioner by way of the double jeopardy clause of either the federal constitution or the state constitution or by way of the due process clause of the federal constitution or the due course of law provisions of the state constitution. Of course, it was not a complete loss; but neither was it the victory Aldape sought. The State still has a prosecutable case even

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with the suppression of evidence. It is just that I have tried to remove the taint, Judge Maloney explained. The retrial was set for May 19, 1997. Because Aldapes habeas petition was denied, it now appeared unlikely that he would be freed any time soon. The State could appeal Judge Maloneys decision to suppress the testimony. Aldape could appeal from the decision to retry him. All the while, Aldape would remain in prison. Even though the court optimistically kept the trial date on its calendar, it might be years before Aldape was either retried or freed. After consulting with Aldape, the decision was made that if the State did not appeal, neither would Aldape. The question on everyones mind was, what would the State do? Would it appeal the decision to suppress the testimony, or would it agree to proceed to trial? If it chose to appeal, it would surely lose. Now a federal district court judge, the Fifth Circuit and a state court judge had all found evidence of police and prosecutorial misconduct. On the other hand, the State had appealed the judgment of the federal district court when the success of that appeal seemed remote. The next day, Tuesday, April 15, 1997, the unimaginable happened. The turn of events was not even considered as a possibility by Aldape or his attorney. Without calling Atlas or any member of the Aldape team, the Harris County district attorneys office filed papers asking the court to dismiss the charges against Aldape. The court quickly granted the motion. There would be no retrial, no appeal. Aldape was about to be freed. Following this news, Atlas told the media he would address all their questions at a conference in V&Es mock courtroom later that evening. The two defense attorneys, Atlas and Schneider, answered a few questions, but the understandable focus of the presss attention was Aldapes parents. They generously thanked everyone for the help in securing their sons release. At his own press conference, Harris County District Attorney Johnny Holmes told reporters, Since the court suppressed the identification of six witnesses of [Aldape] as the shooter, we do not think we should go forward with the remaining evidence. Its a waste of time, effort and energy. The widow of Officer Harris told the press I didnt want to go through another trial. She stated I

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dont know the truth, because there was testimony that seemed to point to his innocence and testimony that showed he was guilty. She had earlier written Aldape stating that she had forgiven him. Aldape responded that he could not accept her forgiveness because he did not kill her husband.
RETURN TO MONTERREY

The afternoon of Tuesday, April 15, Scott and the Aldape team began telephoning all the people who helped ensure Aldapes freedom to let them know that the day for which they had all worked had finally arrived. In the meantime, there were still a few hurdles to clear before Aldape was actually released. Because Aldape entered the country illegally, he would not simply be turned loose. He would go from the custody of the Harris county sheriff to the custody of the U.S. Immigration and Naturalization Service. There was talk of his INS lock-up possibly lasting a week before his release paperwork could be processed. The Mexican consulate in Houston worked with the INS to ensure that there would be no more delays in preventing Aldape from returning to Monterrey. In the meantime, efforts were underway to ensure that, once out, he quickly reached his hometown. Benjamin Clariond, the Governor of the State of Nuevo Len, offered to send a jet to pick up Aldape in Houston. The INS had other plans, however. It insisted on driving Aldape, handcuffed, to the border on Wednesday, April 16. His mother and father would not be allowed to accompany him. His parents and Mexican consular officers followed his car in a van. No amount of assurances from the Mexican government that they would supervise his speedy departure from the United States satisfied the INS. Agents must escort him to the border, they explained. Halfway across the international bridge that connects Brownsville, Texas, to Matamoros, Mexico, Aldape was released to the custody of Mexican officials. He was greeted at the border by a crowd of hundreds. The chanting assemblage bore signs welcoming Aldape back as a hero. Aldape, his family and consular officers were taken to the airport, where a Bancomex jet awaited to fly them from Matamoros to Monterrey. Meanwhile, back in Houston, Atlas

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boarded a plane for Monterrey. He rendezvoused with Aldape at the Monterrey airport. Back in his beloved country, Aldape said in a press conference that he would not sue the United States because of his mistreatment. I would rather be poor here than rich anywhere else in the world. Aldape was not ready for the reaction he received from his countrymen. He had no idea of the folk hero he had become. He knew of the songs and books, but he was simply unprepared for the mass of humanity reaching out just to touch him as if he could heal them. From the misery of death row to mass adulation, Aldape had experienced depths and heights that few people have known. The swiftness of the change was in itself jarring. After years of glacial legal wrangling, he was suddenly in Monterrey, almost worshiped for his travails. For five years, more than a dozen attorneys and as many legal assistants and secretaries worked over 20,000 hours for this moment. Surrendering to the will of the crowd, Aldape climbed on top of the flat, second-story roof of his sisters home, where he had been taken directly from the airport. Wearing a broad smile as he overlooked his compatriots, he told the mass of neighbors and friends that he was thankful to be back home among them. In response to a voice in the crowd, he took off his shirt and tossed it into the sea of supporters.
ALDAPES LEGACY

After enjoying barely 125 days of freedom, Ricardo died in an auto accident. He apparently rear-ended a truck as he headed home from his job in Mexico City. Ricardos life, with so many tragic turns, had taken its last. He died a free man in his own country. He did not suffer the indignity of being strapped to a gurney with an executioners catheter in his arm as his parents and strangers watched through a barred window. The broader lessons justify this account. A police forces reaction to the murder of one of their own is understandable. Police and prosecutors (and the public) should be outraged. But we have rules that they must follow. These rules protect us all and are designed to minimize the prospect of convicting the innocent. When these rules are broken, our criminal justice system has built-in pro-

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tections. Aldapes habeas corpus challenge was one of those constitutionally guaranteed protections. The Aldape case should be recorded as a failure for the criminal justice system if no lessons are drawn from it. Aldape twice came within hours of state-sanctioned death. The first time, he was saved by the efforts of the Texas Resource Center, now disbanded. The second time he was saved by the multimillion-dollar effort of the largest civil litigation firm in Texas. One is left to wonder what will stand between the executioner and the next Aldape. Will the lives of indigents condemned to execution rest on the haphazard beneficence of large litigation firms? A similar effort would bankrupt most law firms, not to mention individual practicing attorneys. As long as the poor on death row receive only the justice they can afford or the meager justice society will provide, then the entire death penalty mechanism is subject to attack. If a society demands the death penalty, it must first demand fairnessat each stage of the processat trial, on appeal and by the constitutionally protected right to petition for writ of habeas corpus. Aldapes case received attention due to the efforts of the Mexican government and the many supporters who believed his claims of innocence. It is easier for us as a society to tolerate such abuses because we believe that we are much more likely to be a victim of crime than we are to be unfairly convicted of committing a crime. If all that results from this case is the freedom of one man, then the attorneys involved will have fully acquitted themselves of their ethical obligation. However, it will represent a failure for the criminal justice system because the next Aldape may not have a foreign government to support him, or a Judge Hoyt, or witnesses like Frank Perez, Patricia Diaz and Herlinda Garcia, or a law firm willing to devote millions of dollars to the defense. What then? Shall we continue to tolerate an injustice only because we think it unlikely to affect those we care about? It does the memory of the victims no honor to execute the innocent. Even if 99 percent of the accused are guilty, because we cannot identify the innocent 1 percent, we must commit sufficient resources for all to defend themselves adequately. Aldape put a human face on what for some might only be an abstract debate about the mechanism that singles out certain criminals for execu-

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tion and our choice of resource allocation. But if there is a crisis, it is one we have created ourselves. If we choose to inflict death, we can also choose to devote sufficient resources to ensure fairness first. Aldapes case does not tell us how often mistakes are made, it only cautions us they can happen. It should also warn us that such mistakes can happen again. After his release, Aldape never had the opportunity to prove that he could contribute to society. Perhaps, though, his legacy will be a criminal justice system that is more cognizant of its weaknesses. In February 1997 the American Bar Associations House of Delegates, its policy-making body, approved a call for a moratorium on executions in the United States until jurisdictions implement policies to ensure that death penalty cases are administered fairly, impartially and in accordance with due process and minimize the risk that innocent persons may be executed. However, executions continued in Texas at a record pace, with thirty-seven lethal injections in 1997, more executions than any other state in any year since the Supreme Courts reinstatement of capital punishment in 1976. There were thirty-seven executions by all the other states combined in 1997. By contrast, in 1996, fortyfive people were executed in the entire United States. As of January 1, 1998, 428 prisoners remained on death row in Texas. In closing argument during Aldapes sentencing in 1982, the prosecution paraphrased Edmund Burke, an English statesman. Edmund Burke, the prosecutor explained, said that the only thing necessary for the triumph of evil is that good people do nothing. In this regard at least, the prosecution was right.

Final Reflections and Conclusions

EFORE SUMMARIZING THE CONCLUSIONS OF THIS STUDY, I would like to stress that, rather than specifying my position regarding application of the death penalty, what I attempted to do here was to offer the reader a profound reflection, to contribute to a more detailed and conscientious understanding of the facts and implications of the death penalty. In this sense, I consider that it is extreme for a human being to reach the point of taking an individuals life because that person committed an act of harm against society. Without a doubt, I am aware that the times in which we live demand that the authorities secure order and peace. However, I am also faithful to my precept that no one can, nor should, commit any harm or prejudice against another human being when the latter is judged in a system with as many deficiencies and injustices as the ones described herein. I also want to emphasize that, in conducting this study, I attempted to acknowledge the hundreds of individuals who have been murdered on death row in subhuman conditions. Throughout the chapters that make up this book, I express my absolute rejection of violence and of prejudices based on gender, race, religion and social and physical condition, which are persistently used in the U.S. legal system. Likewise, with this book, my desire is to promote respect for and reflection upon the ultimate universal human right: life itself. As is obvious, there are many different sources of information on the topic of the death penalty, and their authors take positions for or against it. Therefore, taking a position on the issue should not
230

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be overly complicated for the reader. From my point of view, the complexity would lie in finding true support for the arguments presented in defense of each individuals position. On the other hand, it is difficult to predict what the future of the death penalty will be in ten or fifty years. It is undeniable that only the new generations will have the opportunity to know whether the violations of human rights that I have described in this study will continue or not. I believe, however, that humans must not let time pass without reflecting on the matter. The death penalty is a current issue and is placed within an international context that demands thorough awareness of and meditation on the topic. I believe that in order to definitively eliminate capital punishment, there must exist a full relationship among the courts, criminal enforcement bodies and other mechanisms of administration of justice, which must be sufficient in quality and in quantity to guarantee the physical and moral security of criminals who face the possibility of being sentenced to death. In turn, I see a need for the participation of international organizations to be increasingly influential, creating a social consciousness and a humanist sentiment to confront the judicial systems of those countries that support the death penalty, mainly the United States, a nation that has been reluctant to eliminate this punishment. Likewise, I am convinced that society in general influences individual behavior to a great extent. As was made clear during this study, the majority of those executed inside death row have gone through very complex situations during their childhood and adolescence, which caused rebellious behavior and even mental disorders. For this reason, I feel that it is necessary for the courts and other judicial entities to perform a professional investigation for the purpose of confining criminals in places appropriate to their condition, and thus avoid the commission of more injustices like those that have been committed on many occasions. Following these brief reflections, I move on to a summary of the book. In Chapter 1, we were able to observe that the death penalty is not a new phenomenon, unique to our times. It originated with the most ancient civilizations and has evolved along with the law applied in the modern State. What is more recent is the global interest in the death penalty; as the concern for human rights

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grows, especially in the West, new debates arise regarding this penalty, often, as we have seen, within international organizations. Concise descriptions were also provided of the methods currently employed to carry out the death penalty, as well as some of the arguments presented by abolitionists and retentionists to support their positions. The legal status of the death penalty in Mexico was analyzed briefly, in order to demonstrate that, despite it having been contemplated within national legislation, the tendency of the Mexican government has been toward total abolition, as demonstrated by the recent constitutional reform. I sincerely hope that the current security concerns in Mexico will not revive the debate over whether this penalty should be used again, casting aside the humanist position that has characterized Mexico. In Chapter 2, we saw that analyzing the legal system that supports the application of the death penalty in the United States, from its history, legislation, process, special cases and contradictions, is fundamental for understanding the dimension of the problems confronted in the legal defense of a person accused of a crime punishable by death. This chapter invited us to reflect upon the intricate human nature and the fact that neither people, nor the systems created by them, are infallible. Thus, on the one hand we have atrocious crimes that must be punished through human justice and, on the other, a legal system full of contradictions, that does not fulfill the goal for which it was created: to achieve optimum social coexistence. Doubtless, a critical segment of this study was the analysis of the actions taken by the government of Mexico in defense of its nationals abroad, mainly in the United States, as well as its position before international bodies such as the International Court of Justice, regarding this subject. Despite the fact that the United States is a sovereign nationwhich can decide, by right, its internal policies it was shown that the actions carried out within its territory may have an impact on one of the paramount interests of foreign governments: that of protecting the rights of their citizens abroad. Let us recall that the protection of nationals is one of the main reasons for one country establishing consular relations with another. Therefore, in Chapter 3, we conducted a brief analysis with the intention of presenting the work of the Mexican government in

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protecting its nationals charged with crimes punishable by death or already sentenced to die. Based on this, it can be said that this work has, in fact, been successful in achieving stays of several executions and commutation of death sentenceswith examples going back more than ten years.1 But it is undeniable that the most convincing fact regarding the success of the work done by the Mexican government is the recent decision by the International Court of Justice (ICJ) in the Avena case, which was preceded by the Advisory Opinion issued by the Inter-American Court of Human Rights. In turning to these courts, Mexico demonstrated its confidence in the international mechanisms for the peaceful solution of disputes. The ICJs ruling constitutes a legal tool for the defense of nationals abroad for all countries that have signed the Vienna Convention. Although the decisions of the Court are binding only on the parties and only with regard to the case that has been decided, on this occasion, the Court emphasized that, because the case dealt with matters of principle regarding the general application of the Vienna Convention, it could be extended to other foreign nationals in similar situations. In the case of Mexico, it established the procedure to follow in the defense of Mexican nationals facing the death penalty in the United States, since it strengthens due process and ratifies the right of countries to protect their nationalsall of this in the interests of all persons who are present in a foreign country.2 This is why, for the government of Mexico, the proceedings and decision in this case constitute a triumph of international law.3 Likewise, it must be remembered that Mexicos decision to take the Avena case to the ICJ was not a pronouncement against the United States applying the death penalty, because that is the countrys sovereign right. With the support of the ICJs ruling, however,
1

Gonzlez de Cosso, for his part, lists five cases occurring between June 1992 and December 1994, op. cit., 124 in footnote. 2 In the opinion of Jamie Fellner, Director of Human Rights Watch USA, providing defendants with access to consular officials means that they can get good attorneys, that is, the surest way to avoid the death penalty. Caso Avena: el Tribunal Internacional de Justicia falla en contra de EEUU, op. cit. 3 Postura del gobierno en el fallo de la Corte Internacional de Justicia en el caso Avena y otros nacionales mexicanos, 31 Mar 2004 <sre.gob.mx/eua/espanol/ prensa/comunicados/2004/Marzo/CASOAVENA.pdf>.

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Mexico, which explicitly opposes the death penalty, contributes to this sanction being applied under legal conditions that ensure its impartiality. Thus, Mexico takes a step forward in its struggle to protect the rights of its nationals abroad. Finally, Chapter 4 was extremely important to this book, as it shows the suffering experienced by Mexican national Ricardo Aldape Guerra. Without a doubt, his case reveals the injustices that are frequently committed in the U.S. criminal justice system. Nevertheless, this case also demonstrates the efforts made by the Mexican government and the support of many people who firmly believed in Aldape Guerras innocence. From my point of view, the main contribution of this case was that Aldape provided the humanist profile of a fact that many perceive exclusively as a difference of opinion. Unfortunately, Aldape has died, but he left a definite lesson for all who labor in the criminal justice system of any country, in the sense of ensuring that death penalty cases be heard in a fair and objective way and in compliance with due process, with the firm purpose of definitively reducing the risk that innocent people face the possibility of being sentenced to death. I truly desire that after having read this book, the reader will no longer be the same: I hope he or she will take a position on the subject of the death penalty, the same as or different from mine and from the one he or she had before, but now with full knowledge and awareness that there are serious violations of the human rights of persons facing the possibility of being executed for having committed a crime that our society has judged to be serious. Although different, genuine hypotheses can be formed regarding this book, the kind reader will always have the last word. I would like to add, however, two last inquiries to these conclusions: How much value do you place on your life and on the lives of others? Do you really feel that the harm done by a criminal, whatever the seriousness of the crime, is remedied by executing him or her inside the death chamber?

Glossary
ABOLITIONISTS: those countries that do not use the death penalty as a criminal sanction, including those that in fact consider it in their legislation (de facto abolitionists) but have ceased using it. ABUSE OF HABEAS CORPUS: term to describe improper uses of the application for a writ of habeas corpus, such as simply to delay the process. AEDPA: The Antiterrorism and Effective Death Penalty Act of 1996: federal legislation designed to prevent those sentenced to death from winning their cases in federal courts AMICUS CURIAE: from the Latin friend of the court. Someone who is not a party to the litigation but feels that the courts decision could affect his or her interests. Involved in various subjects concerning the Supreme Court. For example, in petitions for certiorari, submitting valuable legal information and arguments, not only regarding the case, but also as to how it might affect other interested parties. Some studies have shown a positive correlation between the number of amicus curiae briefs requesting certiorari and the granting of same. Some amicus curiae submit briefs to the Supreme Court for the purpose of lobbying or attracting media attention. APPEAL FOR CERTIORARI (APPEAL): a petition to a higher court to review the record from a lower court for the purpose of challenging the lower courts decision. It is possible to present these kinds of petitions before the U.S. Supreme Court, and the same term is also used for the equivalent process in other appellate courts. ARRAIGNMENT: hearing in which the accused appears before a judge and is formally advised of the charges and required to enter a plea of guilty or not guilty. At this state the defendant may be assigned a defense attorney.
235

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GLOSSARY

DIRECT APPEAL: is presented in writing, in addition to the argument held in the court that hears the appeal. Usually this argument lasts no longer than one hour. EN BANC: means with the full court, on the bench or full bench. It refers to those cases in which all members of an appellate court hear argument and are seated on one bench. That is, these are those sessions of the court in which all its members participate, not just the customary quorum. U.S. Courts of Appeal generally convene three-judge panels, but this number can be expanded in certain cases. EXECUTIVE CLEMENCY: a procedure through which state governors of the president of the United States grant clemency in a criminal proceeding under their jurisdiction or when application has been made to them. Clemency can take several forms, including pardon, commutation of sentence, remission of a fine or restitution and the temporary suspension of a sentence. GRAND JURY: a body made up of a group of people, sometimes more than twenty, selected to hear evidence in a criminal case and make the formal criminal complaint against a person who has committed a felony. Generally sentences for these kinds of crimes are longer than one year. HABEAS CORPUS: the academy defines habeas corpus as the right of a detained or imprisoned citizen to appear immediately and publicly before a judge or court to be heard, in order to decide whether the arrest is legal or not, and whether it should be lifted or continued. The requirement is directed to any type of authority; what must be clarified is whether they have legally adopted this measure within their jurisdiction. It means you have the body, and has its origins in the English laws guaranteeing individual liberty, allowing any person illegally detained to appeal to the High Court of Justice. It is a possessory action exercised over a thing or item of property, by virtue of the dominiun that the free man has over his own body. It is a property right, in that the bodyviewed as a thing, because it is subjected to the will of its owner, was recovered by that owner through an injunction. Slaves, on the other hand, lacking control over their bodies, could not exercise the injunction. Therefore it can only be granted for a free man who would have been deprived of that freedom by one attempting to become his master.

GLOSSARY

237

IUSNATURALISM OR NATURAL LAW: that inherent to the human person, emanating from the very nature of man, which therefore is not created by government, according to the Iusnaturalists, who also consider it to pre-exist and be higher than governmental laws, which recognize and protect it. That is, the law is formed by principles that govern all people simply because they are humans, because they belong to the human race. Natural law is an epistemological model of the philosophy of law covering from Greek to Rationalist philosophy (Classical natural law), from Rationalism to Iuspositivism (Neoclassical natural law), and from Iuspositivism, in the early nineteenth century, to the present day. Its position of preeminence in the world of law was seriously affected when legal positivism entered European universities, due to the rise of the scientific and mechanicist models, among other reasons. Its influence experienced a resurgence following World War II, given the questioning of totalitarianisms based on the obedience of citizens and contempt for international public opinion. LEX TALIONIS OR LAW OF RETRIBUTION: recognized by the popular saying an eye for an eye and a tooth for a tooth, this law has been used since times in the distant past, and originated in PreIslamic Arab communities. It is generally considered that Christian cultures are not inclined to use it, as they follow the principle of forgiveness espoused by Jesus Christ (turn the other cheek). On the other hand, the idea that the Islamic religion promotes it is based on the following quote from the Quran: O you who believe, equivalence is the law decreed for you when dealing with murderthe free for the free, the slave for the slave, the female for the female. If one is pardoned by the victims kin, an appreciative response is in order and an equitable compensation shall be paid. This is an alleviation from your Lord and mercy. Anyone who transgresses beyond this incurs a painful retribution. Equivalence is a life saving law for you, O you who possess intelligence, that you may be righteous (2:178-179). However, the law of retribution is not the exclusive province of any single religious, legal, cultural, racial or other type of system, but rather is considered a traditional practice. The term death penalty refers to punishing murderers the same way they carried out their crime, that is, precisely with death.

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GLOSSARY

MANDATE: a legal order or mandate from a higher court to a lower one. PERDUELLIO: treason; the first crime punished by the death penalty in Rome. PETITION FOR WRIT OF CERTIORARI: The U.S. Supreme Court applies the order for review or certiorari (or cert, from the Latin to be informed of) in order to control its appellate caseload and decide which cases it will hear. The main function of the Court is to exercise appellate jurisdiction over the rulings of the lower courts on common constitutional federal legal issues. The U.S. Constitution authorizes Congress to regulate this appellate jurisdiction. In its early years, the Court was obligated to hear and decide every appeal filed before it, but this became difficult to manage as the number of cases increased. Over time the Court secured greater control over its appellate caseload, both in the number of cases it agrees to hear and in the selection of those cases. With the Judiciary Act of 1891, Congress for the first time gave the Court the power to accept or reject at least some appeals as a matter of discretion. The law authorized the use of the writ of certiorari, through which the Court instructs a lower court to certify and transmit for review the record of a particular case. This procedure solved the problem for a time, but within 30 years, the Court was again overloaded with obligatory appeals, for each of which the members of the court had to study the briefs, hear oral arguments and issue written opinions. This had a serious effect on the Supreme Courts time to adequately study and discuss each case. Consequently, Congress again substantially reduced the number of obligatory appeals on the Courts agenda. Through the Judiciary Law of 1925, Congress simultaneously broadened the jurisdiction of certiorari or court review, giving it much more power to control the volume of its activities. In 1988 Congress further reduced the Courts obligatory jurisdiction, and since then virtually all of the high courts jurisdiction has been discretionary. Currently, through the use of the writ of certiorari, the Court hears only serious cases and those of general public importance involving matters of broad public or governmental interest.

GLOSSARY

239

PRO BONO: free services provided by some attorneys to benefit the community. There are organizations, networks of law firms and individual attorneys throughout the world who are willing to volunteer their legal services. Foundations and networks, as well as law firms, receive requests for pro bono work from nonprofit organizations and from persons with limited resources that come from organizations with which they have signed agreements or even from individuals seeking assistance. Firms generally have a department devoted to pro bono work that is also charged with disseminating information about pro bono work performed, organizing activities to promote this practice and forming strategic alliances with different entities that are part of the pro bono chain, made up of all groups and institutions interested in improving the system of access to justice throughout the world. PROSECUTOR OR DISTRICT ATTORNEY: a county prosecutor, usually elected for a certain term. In the federal system they are called U.S. attorneys or U.S. prosecutors. RESTITUTIO IN INTEGRUM: when the parties involved in a matter are returned to their initial position. it is generally applied to contracts, legal transactions or judicial proceedings. To be applicable, one of the two parties must have involuntarily suffered damages caused by the deed or contract. The act or contract must be valid at the time the restitution in integrum is requested, and there must exist no other remedy for such damages. RETENTIONISTS: those countries that continue to use the death penalty as punishment for crimes, whether for all crimes or just some. WETBACKS (MOJADOS): a derogatory term used to refer to people who are living in the United States without the appropriate permits. It is generally applied to Mexicans who cross the northern border of Mexico across the Rio Grande. WRIT OF CERTIORARI: the decision of the Supreme Court to hear an appeal of a lower courts ruling.

Appendix 1-A
TYPE OF EXECUTION, MOTIVE AND ABOLITION DATE ACCORDING TO NATIONAL LEGISLATIONS FIGURE 1. SAMPLE OF 100 COUNTRIES UNTIL 2000, EXCEPT WHEREVER A PREVIOUS YEAR IS LISTED Type of executions Motives

THE DEATH PENALTY WORLWIDE

Country

Afghanistan

Firing squad Whipping Lapidation Hanging

Homicide Armed robbery Looting Importing explosives Anti-State activities Participation in a banned, political organization Trafficking alcohol Adultery Homicide Crimes against State security Treason Espionage Arson attack Burglary Crimes against State security Treason Espionage Rioting

Algeria

Firing squad

Argentina

Firing squad *Death penalty was abolished for all crimes in local jurisdiction in 1984 *Death penalty was abolished for all crimes in local jurisdiction in 1984 and for all crimes in 1985 *Death penalty was abolished for all crimes in 1968 Decapitation Firing squad

Australia

Austria Belgium

Homicide Crimes against State security Kidnapping Airplane hijacking

241

242
Country BosniaHerzegovina

APPENDIX 1-A
Type of executions Firing squad Motives Homicide Treason Taking hostages Terrorism Crimes against the State Treason Crimes against State security

Brazil

Firing Squad *Death penalty was abolished for all crimes in local jurisdiction in 1979 Hanging

Burma (Myanmar)

Homicide Treason Drug manufacturing and trafficking Homicide Rape Crimes against the State Treason Inciting disturbances Uprisings Treason Espionage

Cambodia

Firing squad

Canada

Firing Squad *Death penalty was abolished for all crimes in local jurisdiction in 1976 *Death penalty was abolished for all crimes in 1981

Cape Verde

Central African Firing squad Republic

Homicide Parricide Kidnapping Aggravated robbery Treason Espionage Homicide Terrorism Possession of arms and explosives Treason Parricide Aggravated robbery Kidnapping of minors Espionage Surrendering

Chile

Firing squad

APPENDIX 1-A
Country China Type of executions Firing squad Motives

243

Homicide Simple or aggravated robbery Embezzlement Corruption Kidnapping Insubordination Smuggling Drug trafficking Women or child trafficking Procuring Circulating or making pornographic material Firearm trafficking Using poison Using explosives Organizing criminal gangs Treason Espionage Rape Counterrevolutionary behavior Illegal exportation of works of art Dissemination of confidential information

Colombia Congo

*Death penalty was abolished for all crimes in 1910 Firing squad Decapitation Homicide Political crime Armed assault Treason Espionage Attempt to assassinate an officer

Costa Rica Cuba

*Death penalty was abolished for all crimes in 1987 Firing squad Homicide Rape Violent pedophilia Crimes against State security Treason Sabotage Economic offenses Currency trafficking

244
Country Cyprus

APPENDIX 1-A
Type of executions Hanging *Death penalty was abolished for all crimes in local jurisdiction in 1983 Motives Treason Evasion Piracy Crimes against State security

Czech Republic *Death penalty was abolished and Slovaquia for all crimes in 1990 Denmark *Death penalty was abolished for all crimes in local jurisdiction in 1933 and for all crimes in 1978 *Death penalty was abolished for all crimes in 1966 *Death penalty was abolished for all crimes in 1906 Firing squad Hanging Homicide Arson Child abandonment Breaking down a vehicle where a person died Rape Conspiracy with the enemy Looting Refusal to follow orders in wartime Drug trafficking Crimes during wartime

Dominican Republic Ecuador Egypt

El Salvador

Firing squad *Death penalty was abolished for all crimes in local jurisdiction in 1983 Hanging *Death penalty was abolished for all crimes in local jurisdiction in 1978 *Death penalty was abolished for all crimes in local jurisdiction in 1949 and for all crimes in 1972 *Death penalty was abolished for all crimes in 1981

Fiji

Crimes during wartime Treason Espionage

Finland

France

APPENDIX 1-A
Country Gambia Georgia Type of executions * Death penalty was abolished for all crimes in 1993 Firing squad Hanging *Death penalty was abolished for all crimes in local jurisdiction in 1991 and reinstated in 1992 *Ex RDA: Death penalty was abolished for all crimes in 1987 *Ex RFA: idem in 1949 Serious crimes Motives

245

Germany

Guinea-Bissau *Death penalty was abolished for all crimes in 1993 Haiti Honduras Hong Kong India *Death penalty was abolished for all crimes in 1987 *Death penalty was abolished for all crimes in 1956 *Death penalty was abolished for all crimes in 1993 Firing squad Hanging Homicide Inciting immolation Group robbery Encouraging a patient with mental problems to commit suicide Terrorism Forging evidence Uprising Attack against State security Homicide Rebellion Treason Drug trafficking Crimes against the State Homicide Drug use and trafficking Adultery Crimes against God Treason Desertion Rebellion Blasphemy

Indonesia

Firing squad

Iran

Firing squad Hanging Lapidation

246
Country Iraq

APPENDIX 1-A
Type of executions Firing squad Hanging Motives Homicide Assassination attempt of the chief of State Treason Espionage Robbery Money laundering Forgery Attacks on modesty Desertion Public insult of the chief of State Economic crimes

Ireland Israel

*Death penalty was abolished for all crimes in 1990 Hanging *Death penalty was abolished for all crimes in local jurisdiction in 1954 Firing squad *Death penalty was abolished for all crimes in local jurisdiction in 1947 Hanging Treason War crimes Sabotage Terrorism Crimes against the State during wartime

Italy

Japan

Homicide Aggravated robbery Rape Damage to buildings inhabited Crimes against the State Insurrection Airplane hijacking Use of explosives Treason Homicide Crimes against the State Treason Attempts to modify the Constitution Espionage Attempts to hurt members of the royal family Arson Rape Dishonorable behavior in combat Land sale to Israelites

Jordan

Firing squad Hanging

APPENDIX 1-A
Country Kazakhstan Type of executions Firing squad Motives

247

Homicide Treason Crimes against State security Rape Attempt against the life of a policeman Homicide Treason Attempt to assassinate or overthrow the chief of State or his son Aggravate robbery Kidnapping Rape Perjury Attack of a vehicle where a person dies Terrorism Homicide Treason Immolation Attack of a vehicle where a person dies Desertion Sabotage

Kuwait

Firing squad Hanging

Lebanon

Firing squad Hanging

Liechtenstein *Death penalty was abolished for all crimes in 1987 Luxemburg Malaysia * Death penalty was abolished for all crimes in 1979 Hanging Homicide Fire arm possession Drug trafficking Inciting suicide Kidnapping Uprising Crimes during wartime

Mexico

Firing squad *Death penalty was abolished for all political crimes in 1937 and for all crimes in 2005 *Death penalty was abolished for all crimes in 1962

Monaco

248
Country Morocco

APPENDIX 1-A
Type of executions Firing squad Motives Homicide Parricide Poisoning Aggravated robbery Immolation Crimes against State security Treason Desertion Attempts

Mozambique Netherlands

*Death penalty was abolished for all crimes in 19990 *Death penalty was abolished for all crimes in local jurisdiction in 1870 and for all crimes in 1982 *Death penalty was abolished for all crimes in local jurisdiction in 1961 and for all crimes in 1989 *Death penalty was abolished for all crimes in 1979 Firing squad Hanging Homicide Armed robbery Treason Crime against the State Kidnapping Lynching Homicide Uprisings Sabotage Rape Adultery Embezzlement Crimes against State security Subversion Conspiracy with imperialism

New Zealand

Nicaragua Nigeria

North Korea

Firing squad

Norway

*Death penalty was abolished for all crimes in local jurisdiction in 1905 and for all crimes in 1989

APPENDIX 1-A
Country Oman Type of executions Firing squad Decapitation Motives Homicide Treason Sexual crimes Assassination attempt of the chief of State Homicide Kidnapping Uprising Armed robbery Embezzlement Defiling the name of Mohammed Sexual offenses Adultery Crimes against the State Crimes against God Blasphemy

249

Pakistan

Hanging Lapidation

Panama Paraguay

*Death penalty was abolished for all crimes in 1903 Firing squad *Death penalty was abolished for all crimes in local jurisdiction in 1992 Firing squad *Death penalty was abolished for all crimes in local jurisdiction in 1979 Gas chamber *Death penalty was abolished for all crimes in 1987 and reinstated in 1993 Firing squad Hanging Treason in wartime

Peru

Treason in wartime

Philippines

Homicide Rape Infanticide Taking hostages Serious corruption Homicide Treason Espionage Economic sabotage Crime against State security

Poland

Portugal

*Death penalty was abolished for all crimes in local jurisdiction in 1867 and for all crimes in 1976

250
Country Qatar

APPENDIX 1-A
Type of executions Firing squad Hanging Decapitation Motives Homicide Perjury Drug trafficking Sexual crime Adultery Crimes against the security of the State

Romania Russia

*Death penalty was abolished for all crimes in 1989 Firing squad Hanging Homicide Rape Airplane hijacking Undoing the work done in prisons Economic crime Corruption Crimes against peace Disrupting institutions that retrain the unemployed Homicide Parricide Infanticide Rape Robbery Kidnapping Witchcraft Treason Disclosing a State secret Attempt to overthrow the government Homicide Sexual crimes Adultery Renegade Sabotage Treason Crimes against State security Burglary Terrorism Crimes against God

Rwanda

Firing squad

Saudi Arabia

Lapidation Decapitation Firing squad

APPENDIX 1-A
Country Senegal Type of executions Firing squad Motives

251

Homicide Poisoning Taking hostages Espionage Treason Uprising Desertion Crimes against State security Homicide Treason Attempts against the president Fire arm possession Drug trafficking Perjury Homicide Crimes against State security Treason Espionage Sabotage Anti-State propaganda Boycott organizing Homicide Child kidnapping Rape Aggravated robbery and assault Terrorism Anti-State activity Insurrection Rape Anti-State activities Espionage Kidnapping Repeated robbery Crimes during wartime Treason Espionage

Singapore

Hanging

Somalia

Firing squad

South Africa

Hanging

South Korea

Firing squad Hanging

Spain

Firing squad *Death penalty was abolished for all crimes in local jurisdiction in 1978

252
Country Sudan

APPENDIX 1-A
Type of executions Firing squad Hanging Lapidation Crucifixion Motives Homicide Uprising Subversion Espionage Disorganizing national economy Adultery Sexual crimes Perjury Armed robbery Managing a brothel Crimes against God Homicide Treason Assassinating a child older than one year Ritual homicides Possession of human flesh

Swaziland

Hanging

Sweden

*Death penalty was abolished for all crimes in local jurisdiction in 1921 and for all crimes in 1972 *Death penalty was abolished for all crimes in 1992 Firing squad Hanging Homicide Rape Immolation Destruction of a media Economic crimes Crimes against State or foreign organizations Securing foreign funds for subversion Attacks on places of worship Organizing ethnic disturbances Participating in forbidden organizations Drug trafficking Homicide Rape with murder Piracy Immolation Sedition Soliciting ransom

Switzerland Syria

Taiwan

Firing squad Lethal injection

APPENDIX 1-A
Country Thailand Type of executions Firing squad Motives Homicide Regicide Aggravated robbery Rape Kidnapping Terrorism Treason Sabotage Espionage Trafficking Immolation Homicide Treason Contraband Crimes against the State Crimes against the Constitution Homicide Adultery Rape Armed robbery Treason Renegade Drug trafficking Crimes against the State Treason Espionage Piracy Aggravated homicide Espionage Hijacking a plane where a person died

253

Turkey

Hanging

United Arab Emirates

Firing squad Hanging Lapidation

United Kingdom

Hanging *Death penalty was abolished for all crimes in local jurisdiction in 1973 Firing squad Electrocution Suffocation Lethal injection Hanging *Death penalty was abolished for all crimes in 1907 *Death penalty was abolished for all crimes in 1969 *Death penalty was abolished for all crimes in 1863

United States

Uruguay Vatican City Venezuela

254
Country Vietnam

APPENDIX 1-A
Type of executions Firing squad Motives Homicide Economic offenses Crimes against the State Treason Sabotage Armed robbery Embezzlement Espionage Attempt to overthrow or subvert socialism Crimes against public health Rape Crimes against the foundation of peace Firearm trafficking Homicide Crimes against Gods will Unlawful sexual relationships Sodomy Aggravated robbery Kidnapping Renegade Sabotage Crimes against peace Crimes against the State Treason Espionage Polluting the air or water Immolation Homicide Armed robbery Aiding or encouraging suicide Terrorism Piracy Crimes against the State Homicide Armed robbery Rape Kidnapping Crimes against the State Looting Slaughter Assassination attempt of the chief of State

Yemen

*In Ex North Yemen Firing squad Hanging Lapidation *In Ex South Yemen Firing squad

Yugoslavia (Serbia and Montenegro)

Firing squad *Capital punishment was abolished in Croatia, Macedonia and Slovenia

Zaire

Firing squad Hanging

APPENDIX 1-A
Country Zambia Type of executions Hanging Motives

255

Homicide Treason Aggravated robbery Crimes against State security Homicide Treason Conspiracy Rape Aggravated robbery Firearm possession Immolation Hindering any basic need Cause an important financial loss to the State Damaging railroad tracks

Zimbabwe

Hanging

Source: Martn Monestier, Pena de muerte: historia y tcnicas de las ejecuciones capitales desde sus inicios hasta nuestros das (Mexico: Diana, 2000) 417-434.

Appendix 1-B
GLOBAL CATEGORIES REGARDING THE DEATH PENALTY
FIGURE 2. ABOLITIONISTS COUNTRIES: COUNTRIES THAT DO NOT ENVISAGE THE DEATH PENALTY IN THEIR LEGISLATIONS FOR EITHER COMMON OR MILITARY CRIMES Country

Andorra Angola Australia Austria Azerbaijan Belgium Bulgaria Cambodia Canada Cape Verde Colombia Costa Rica Croatia Czech Republic Denmark East Timor Ecuador Estonia Finland France Germany Georgia Greece Guinea-Bissau Haiti

Abolition date Abolition date for Date of last execution common crimes 1990 1943 1992 1985 1968 1998 1996 1998 1984 1950 1967 1950 1993 1950 1989 1976 1962 1835 1909

1989 1998 1981 1910 1877 1890 1990 1978 1933 1950

Dominican Republic 1966 1906 1998 1972 1981 1987 1997 1993 1993 1987 1994 1972 1986 1972 1949 1991 1944 1977

256

APPENDIX 1-B
Country Honduras Hungary Iceland Ireland Italy Ivory Coast Kiribati Liechtenstein Lithuania Luxemburg Malta Marshall Islands Mauritius Mexico Micronesia (Federated States of) Moldavia Monaco Mozambique Namibia Nepal Netherlands New Zealand Nicaragua Norway Panama Paraguay Poland Portugal Romania Salomon Islands So Tom and Prncipe 1990 San Marino 1865 1848 1468 1992 1997 1976 1989 1966 1867 1995 1962 1990 1990 1997 1982 1989 1979 1979 1905 1990 1870 1961 1847 1986 1988 1979 1952 1957 1930 1948 1903 1928 1988 1849 1989 1995 2005 1987 1937 1987 1998 1979 2000 1971 1785 1995 1949 1943

257

Abolition date Abolition date for Date of last execution common crimes 1956 1940 1990 1928 1990 1994 2000 1947 1988 1830 1954 1947

258
Country Seychelles Slovakia Slovenia South Africa Spain Sweden Switzerland Turmenistan Tuvalu Ukraine United Kingdom Uruguay Vanuatu Vatican City Venezuela Yibuti 1969 1863 1998 1907 1990 1989 1997 1995 1972 1992

APPENDIX 1-B
Abolition date Abolition date for Date of last execution common crimes

1995 1978 1921 1942

1991 1975 1910 1944

1973

1964

FIGURE 3. ABOLITIONISTS FOR COMMON CRIMES: COUNTRIES WHOSE LAWS KEEP THE DEATH PENALTY FOR EXCEPTIONAL CRIMES SUCH AS THOSE COMMITTED UNDER MILITARY LAW OR IN EXCEPTIONAL CIRCUMSTANCES SUCH AS THOSE THAT OCCUR DURING WARTIME Country Date of abolition for common crimes Date of the last execution

Albany Argentina Bolivia Bosnia-Herzegovina Brazil Cook Islands Cyprus El Salvador Fiji Israel Latvia Peru

2000 1984 1997 1997 1979 1983 1983 1979 1954 1999 1939

1974 1855 1962 1973 1964 1962 1996 1939

APPENDIX 1-B

259

FIGURE 4. DE FACTO ABOLITIONISTS ARE COUNTRIES THAT KEEP THE DEATH PENALTY FOR COMMON CRIMES BUT HAVE NOT EXECUTED ANYONE IN THE LAST TWENTY YEARS Country Date of the last execution Bermuda Brunei-Darussalam Burkina Faso Bhutan Central African Republic Congo (Republic of the) Gambia Granada Madagascar Maldive Islands Mali Nauru Niger Papua New Guinea Senegal Sri Lanka Surinam Togo Tonga Turkey Western Samoa Source: Amnesty International 1982 1984 1964 1981 1982 1981 1978 1958 1952 1980 (I) 1976 1950 1967 1976 1982 1977 1957

260

APPENDIX 1-B

FIGURE 5. RETENTIONISTS ARE COUNTRIES WHERE THE DEATH PENALTY IS IN FORCE AND WHERE EXECUTIONS HAVE BEEN PERFORMED Afghanistan Algeria Antigua and Barbuda Armenia Bahamas Bahrain Bangladesh Barbados Belize Benin Belarus Botswana Burma Burundi Cameroon Chad Chile China (Peoples Republic of) Comoros Congo Cuba Dominica Egypt Eritrea Ethiopia Gabon Ghana Guatemala Guinea Guinea Equatorial Guyana India Indonesia Iran Iraq Jamaica Japan Jordan Kazakhstan Kenya Kuwait Kyrgyzstan Laos Lebanon Lesotho Liberia Libya Malaysia Malawi Morocco Mauritania Mongolia Nigeria North Korea Oman Pakistan Palestine Philippines Qatar Russian Federation Rwanda Saint Christopher and Nevis Saint Lucia Saint Vincent and the Grenadines Saudi Arabia Sierra Leone Singapore Somalia South Korea Sudan Swaziland Syria Taiwan (Republic of China) Tajikistan Tanzania Thailand Trinidad and Tobago Tunis Uganda Uzbekistan United Arab Emirates United States Vietnam Yemen Yugoslavia (Socialist Federal Republic of) Zambia Zimbabwe

Source: Amnesty International, qtd. in Victor Hugo Resendes, Pena de muerte: la controversia (Mexico: Pac, 2001) 31; Pena de muerte, 11 May 2004 <ya.com/penademuerte/listapaises.htm>.

Appendix 1-C
A] ANTI-DEATH PENALTY ORGANIZATIONS AND GROUPS IN THE UNITED STATES 1] Capital Punishment Project (Washington, D.C.) American Civil Liberties Union (ACLU) This organization has the firm belief that capital punishment violates the U.S. Constitutions provision on cruel and unusual punishment, as well as due process and equal protection. This organization is public and distributes many books and pamphlets such as: The case against the death penalty and Frequently asked questions concerning the right of habeas corpus and the death penalty. 2] Death Penalty Information centerDPIC (Washington, D.C.) This organization conducts various surveys regarding the death penalty. In its opposition to capital punishment, it argues that it is discriminatory, too costly, and may lead to the execution of innocent people. It has published many reports, such as: Millions Misspent: What Politicians Dont Say About the High Costs of the Death Penalty and With Justice for Few: The Growing Crisis in Death Penalty Representation. 3] Justice Fellowship (Washington, D.C.) This is a Christian organization founded on reform of the legal system and the idea of achieving victim-perpetrator reconciliation. It takes no position for or against the death penalty, but publishes a document entitled Capital Punishment: A Call to Dialogue. 4] Lamp of Hope Project (Dallas, Texas) This project was created and is headed by death row inmates in Texas. They work on behalf of victim-offender reconciliation and for the protection of prisoners civil rights, particularly the right to habeas corpus. It publishes and distributes the magazine Texas Death Row Journal.
261

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5] NAACP Legal Defense and Education Fund (New York) Founded by the National Association for the Advancement of Colored People, this organization opposes the death penalty and works to end racial discrimination in the court system. It compiles and analyzes statistics on the death penalty and published legal documents such as reports and fact sheets. 6] National Criminal Justice Reference ServiceNCJRS (Rockville, Maryland) For a fee, this organization provides research on specific topics, and various readings and reports on different areas of the criminal justice system, including the death penalty. 7] National Legal Aid & Defender AssociationNLADA (Washington, D.C.) This organization provides technical assistance and serves as a filter for organizations providing legal assistance services to the poor. It fights for high-quality legal services for indigents. It also publishes documents to assist legal services organizations, and distributes reports prepared by opponents of the death penalty. SOURCE: Paul A. Winters, The Death Penalty: Opposing Viewpoints. U.S. Greenhaven Press, 1997, 183. B] INTERNATIONAL LEGISLATION REGARDING THE RIGHT TO LIFE AND AGAINST THE DEATH PENALTY 1] Universal Declaration of Human Rights Article 3. Everyone has the right to life, liberty and security of person. Article 5. No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. 2] International Covenant on Civil and Political Rights Article 6. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life. In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of

APPENDIX 1-C

263

the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgment rendered by a competent court. When deprivation of life constitutes the crime of genocide, it is understood that nothing in this article shall authorize any State Party to the present Covenant to derogate in any way from any obligation assumed under the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide. Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases. Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women. Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant. Article 14. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The Press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgment rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children. Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:

264

APPENDIX 1-C

To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him; To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing; To be tried without undue delay; To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it; To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; To have the free assistance of an interpreter if he cannot understand or speak the language used in court; Not to be compelled to testify against himself or to confess guilt. In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation. Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law. When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him. No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country. Article 15. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was com-

APPENDIX 1-C

265

mitted. if, subsequent to the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby. Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations. 3] General comment on Article 6 of the International Covenant on Civil and Political Rights, passed in meeting 378 (16th session) July 27, 1982 by the Human Rights Committee, established by virtue of the International Covenant on Civil and Political Rights The right to life enunciated in article 6 of the Covenant has been dealt with in all State reports. It is the supreme right from which no derogation is permitted even in time of public emergency which threatens the life of the nation (art. 4). [. . .] It is a right which should not be interpreted narrowly. [. . .] While it follows from article 6 (2) to (6) that States parties are not obliged to abolish the death penalty totally they are obliged to limit its use and, in particular, to abolish it for other than the most serious crimes. Accordingly, they ought to consider reviewing their criminal laws in this light and, in any event, are obliged to restrict the application of the death penalty to the most serious crimes. The article also refers generally to abolition in terms which strongly suggest (paras. 2 (2) and (6)) that abolition is desirable. The Committee concludes that all measures of abolition should be considered as progress in the enjoyment of the right to life within the meaning of article 40, and should as such be reported to the Committee. The Committee notes that a number of States have already abolished the death penalty or suspended its application. Nevertheless, States reports show that progress made towards abolishing or limiting the application of the death penalty is quite inadequate. The Committee is of the opinion that the expression most serious crimes must be read restrictively to mean that the death penalty should be a quite exceptional measure. It also follows from the express terms of article 6 that it can only be imposed in accordance with the law in force at the time of the commission of the crime and not contrary to the Covenant. The procedural guarantees

266

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therein prescribed must be observed, including the right to a fair hearing by an independent tribunal, the presumption of innocence, the minimum guarantees for the defense, and the right to review by a higher tribunal. These rights are applicable in addition to the particular right to seek pardon or commutation of the sentence. 4] Safeguards guaranteeing protection of the rights of those facing the death penalty, approved by Economic and Social Council resolution 1984/50 of 25 May 1984 in its Spring 1984 session and supported by Resolution 39/118 of the U.N. General Assembly, adopted without a vote on December 14, 1984. In countries which have not abolished the death penalty, capital punishment may be imposed only for the most serious crimes, it being understood that their scope should not go beyond intentional crimes with lethal or other extremely grave consequences. Capital punishment may be imposed only for a crime for which the death penalty is prescribed by law at the time of its commission, it being understood that if, subsequent to the commission of the crime, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby. Persons below 18 years of age at the time of the commission of the crime shall not be sentenced to death, nor shall the death sentence be carried out on pregnant women, or on new mothers, or on persons who have become insane. Capital punishment may be imposed only when the guilt of the person charged is based upon clear and convincing evidence leaving no room for an alternative explanation of the facts. Capital punishment may only be carried out pursuant to a final judgement rendered by a competent court after legal process which gives all possible safeguards to ensure a fair trial, at least equal to those contained in article 14 of the International Covenant on Civil and Political Rights, including the right of anyone suspected of or charged with a crime for which capital punishment may be imposed to adequate legal assistance at all stages of the proceedings. Anyone sentenced to death shall have the right to appeal to a court of higher jurisdiction, and steps should be taken to ensure that such appeals shall become mandatory.

APPENDIX 1-C

267

Anyone sentenced to death shall have the right to seek pardon, or commutation of sentence; pardon or commutation of sentence may be granted in all cases of capital punishment. Capital punishment shall not be carried out pending any appeal or other recourse procedure or other proceeding relating to pardon or commutation of the sentence. Where capital punishment occurs, it shall be carried out so as to inflict the minimum possible suffering. 5] American Convention on Human Rights Article 4. Right to Life. Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception. No one shall be arbitrarily deprived of his life. In countries that have not abolished the death penalty, it may be imposed only for the most serious crimes and pursuant to a final judgment rendered by a competent court and in accordance with a law establishing such punishment, enacted prior to the commission of the crime. The application of such punishment shall not be extended to crimes to which it does not presently apply. The death penalty shall not be reestablished in states that have abolished it. In no case shall capital punishment be inflicted for political offenses or related common crimes. Capital punishment shall not be imposed upon persons who, at the time the crime was committed, were under 18 years of age or over 70 years of age; nor shall it be applied to pregnant women. Every person condemned to death shall have the right to apply for amnesty, pardon, or commutation of sentence, which may be granted in all cases. Capital punishment shall not be imposed while such a petition is pending decision by the competent authority. 6] Geneva Conventions and Additional Protocols A] Geneva Convention of August 12, 1949 relative to the treatment of prisoners of war (Convention no. 3) Article 100. Prisoners of war and the Protecting Powers shall be informed as soon as possible of the offences which are punishable by the death sentence under the laws of the Detaining Power.

268

APPENDIX 1-C

Other offences shall not thereafter be made punishable by the death penalty without the concurrence of the Power upon which the prisoners of war depend. The death sentence cannot be pronounced on a prisoner of war unless the attention of the court has, in accordance with Article 87, second paragraph, been particularly called to the fact that since the accused is not a national of the Detaining Power, he is not bound to it by any duty of allegiance, and that he is in its power as the result of circumstances independent of his own will. Article 101. If the death penalty is pronounced on a prisoner of war, the sentence shall not be executed before the expiration of a period of at least six months from the date when the Protecting Power receives, at an indicated address, the detailed communication provided for in Article 107. B] Geneva Convention of August 12, 1949 relative to the protection of civilian persons in time of war Article 68. Protected persons who commit an offence which is solely intended to harm the Occupying Power, but which does not constitute an attempt on the life or limb of members of the occupying forces or administration, nor a grave collective danger, nor seriously damage the property of the occupying forces or administration or the installations used by them, shall be liable to internment or simple imprisonment, provided the duration of such internment or imprisonment is proportionate to the offence committed. Furthermore, internment or imprisonment shall, for such offences, be the only measure adopted for depriving protected persons of liberty. The courts provided for under Article 66 of the present Convention may at their discretion convert a sentence of imprisonment to one of internment for the same period. The penal provisions promulgated by the Occupying Power in accordance with Articles 64 and 65 may impose the death penalty on a protected person only in cases where the person is guilty of espionage, of serious acts of sabotage against the military installations of the Occupying Power or of intentional offences which have caused the death of one or more persons, provided that such offences were punishable by death under the law of the occupied territory in force before the occupation began.

APPENDIX 1-C

269

The death penalty may not be pronounced on a protected person unless the attention of the court has been particularly called to the fact that since the accused is not a national of the Occupying Power, he is not bound to it by any duty of allegiance. In any case, the death penalty may not be pronounced on a protected person who was under eighteen years of age at the time of the offence. Article 75. In no case shall persons condemned to death be deprived of the right of petition for pardon or reprieve. No death sentence shall be carried out before the expiration of a period of a least six months from the date of receipt by the Protecting Power of the notification of the final judgment confirming such death sentence, or of an order denying pardon or reprieve. The six months period of suspension of the death sentence herein prescribed may be reduced in individual cases in circumstances of grave emergency involving an organized threat to the security of the Occupying Power or its forces, provided always that the Protecting Power is notified of such reduction and is given reasonable time and opportunity to make representations to the competent occupying authorities in respect of such death sentences. C] The four Geneva Conventions of August 12, 1949 Article 3. In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions: Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, color, religion or faith, sex, birth or wealth, or any other similar criteria. To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the abovementioned persons: [. . .] (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted

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court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples. D] Protocol Additional to the August 12, 1949 Geneva Conventions relating to the protection of victims of international armed conflicts (Protocol I) Article 76. Protection of women [. . .] 3] To the maximum extent feasible, the Parties to the conflict shall endeavor to avoid the pronouncement of the death penalty on pregnant women or mothers having dependent infants, for an offence related to the armed conflict. The death penalty for such offences shall not be executed on such women. Article 77. Protection of children [. . .] 5] The death penalty for an offence related to armed conflict shall not be executed on persons who had not attained the age of eighteen years at the time the offence was committed. E] Protocol Additional to the August 12, 1949 Geneva Conventions relating to the protection of victims of non-international armed conflicts (Protocol II) Article 6. Penal prosecutions [. . .] 4] The death penalty shall not be pronounced on persons who were under the age of eighteen years at the time of the offence and shall not be carried out on pregnant women or mothers of young children. 7] Protocol No. 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms concerning the abolition of the death penalty The member States of the Council of Europe, signatory to this Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950 (hereinafter referred to as the Convention), Considering that the evolution that has occurred in several member States of the Council of Europe expresses a general tendency in favor of abolition of the death penalty, Have agreed as follows: Article 1Abolition of the death penalty: The death penalty shall be abolished. No-one shall be condemned to such penalty or executed.

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Article 2Death penalty in time of war: A State may make provision in its law for the death penalty in respect of acts committed in time of war or of imminent threat of war; such penalty shall be applied only in the instances laid down in the law and in accordance with its provisions. The State shall communicate to the Secretary General of the Council of Europe the relevant provisions of that law. Article 3Prohibition of derogations: No derogation from the provisions of this Protocol shall be made under Article 15 of the Convention. Article 4Prohibition of reservations: No reservation may be made under Article 57 of the Convention in respect of the provisions of this Protocol. Article 5Territorial application: Any State may at the time of signature or when depositing its instrument of ratification, acceptance or approval, specify the territory or territories to which this Protocol shall apply. Any State may at any later date, by a declaration addressed to the Secretary General of the Council of Europe, extend the application of this Protocol to any other territory specified in the declaration. In respect of such territory the Protocol shall enter into force on the first day of the month following the date of receipt of such declaration by the Secretary General. Any declaration made under the two preceding paragraphs may, in respect of any territory specified in such declaration, be withdrawn by a notification addressed to the Secretary General. The withdrawal shall become effective on the first day of the month following the date of receipt of such notification by the Secretary General. Article 6Relationship to the Convention: As between the States Parties the provisions of Articles 1 to 5 of this Protocol shall be regarded as additional articles to the Convention and all the provisions of the Convention shall apply accordingly. Article 7Signature and ratification: The Protocol shall be open for signature by the member States of the Council of Europe, signatories to the Convention. It shall be subject to ratification, acceptance or approval. A member State of the Council of Europe may not ratify, accept or approve this Protocol unless it has, si-

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multaneously or previously, ratified the Convention. Instruments of ratification, acceptance or approval shall be deposited with the Secretary General of the Council of Europe. Article 8Entry into force: This Protocol shall enter into force on the first day of the month following the date on which five member States of the Council of Europe have expressed their consent to be bound by the Protocol in accordance with the provisions of Article 7. In respect of any member State which subsequently expresses its consent to be bound by it, the Protocol shall enter into force on the first day of the month following the date of the deposit of the instrument of ratification, acceptance or approval. Article 9Depositary functions: The Secretary General of the Council of Europe shall notify the member States of the Council of: a. any signature; b. the deposit of any instrument of ratification, acceptance or approval; c. any date of entry into force of this Protocol in accordance with Articles 5 and 8; d. any other act, notification or communication relating to this Protocol. 8] Resolution 32/61 of the U.N. General Assembly on December 8, 1977. Capital punishment The General Assembly, having regard to article 3 of the Universal Declaration of Human Rights, which affirms everyones right to life, and article 6 of the International Covenant on Civil and Political Rights, which also affirms the right to life as inherent to every human being. [. . .] 1] Reaffirms that, as established by the General Assembly in Resolution 2857 (XXVI) and by the Economic and Social Council in resolutions 1574 (L), 1745 (LIV and 1930 (LVIII), the main objective to be pursued in the field of capital punishment is that of progressively restricting the number of offenses for which the death penalty may be imposed with a view to the desirability of abolishing this punishment. [. . .]

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9] Resolution 35/172 of the U.N. General Assembly, adopted without a vote on December 15, 1980. 35/172. Arbitrary and summary executions. The General Assembly, having regard to the provisions bearing on capital punishment in the International Covenant on Civil and Political Rights, in particular articles 2 (i), 6, 14 and 15 thereof, Recalling General Assembly resolution 2393 (XXIII) of 26 November 1968, in which the Assembly invited Governments of Member States, inter alia, to ensure the most careful legal procedures and the greatest possible safeguards for the accused in capital cases in countries where the death penalty obtains, Alarmed at the incidence in different parts of the world of summary executions as well as of arbitrary executions; Concerned at the occurrence of executions which are widely regarded as being politically motivated: 1] Urges Members States concerned: (a) To respect as a minimum standard the content of the provisions of articles 6, 14 and 15 of the International Covenant on Civil and Political Rights and, where necessary, to review their legal rules and practices so as to guarantee the most careful legal procedures and the greatest possible safeguards for the accused in capital cases; (b) To examine the possibility of making automatic the appeal procedure, where it exists, in cases of death sentences, as well as the consideration of an amnesty, pardon or commutation in these cases; (c) To provide that no death sentence shall be carried out until the procedures of appeal and pardon have been terminated and, in any case, not until a reasonable time after the passing of the sentence in the court in the first instance; 2] Requests the Secretary-General to use his best endeavors in cases where the minimum standard of legal safeguards referred to in paragraph 1 above appears not to be respected; 3] Further requests the Secretary-General to seek from Member States, specialized agencies, regional intergovernmental organizations and concerned non-governmental organizations in consultative status with the Economic and Social Council views and

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observations concerning the problem of arbitrary executions and summary executions, and to report to the Committee on Crime Prevention and Control at its seventh session. 10] Statute of Amnesty International As amended by the 20th International Council, meeting in Yokohama, Japan, 31 August7 September 1991 Article 1. [. . .]The object of AMNESTY INTERNATIONAL is to contribute to the observance throughout the world of human rights as set out in the Universal Declaration of Human Rights. In pursuance of this object, and recognizing the obligation on each person to extend to others rights and freedoms equal to his or her own, AMNESTY INTERNATIONAL adopts as its mandate: [. . .] To oppose by all appropriate means irrespective of political considerations: [. . .] c) the death penalty, and the torture or other cruel, inhuman or degrading treatment or punishment of prisoners or other detained or restricted persons, whether or not the persons affected have used or advocated violence; Article 2. In order to achieve the aforesaid object and mandate, AMNESTY INTERNATIONAL shall: [. . .] j) oppose the sending of persons from one country to another where they can reasonably be expected to become prisoners of conscience or to face torture or the death penalty; [. . .] 11] Stockholm Declaration of December 11, 1977 The Stockholm Declaration was adopted by Amnesty International in March of 1978 as a declaration of principles regarding the death penalty. The Stockholm Conference on the Abolition of the Death Penalty, composed of more than 200 delegates and participants from Africa, Asia, Europe, the Middle East, North and South America and the Caribbean region, RECALLS THAT: The death penalty is the ultimate cruel, inhuman and degrading punishment and violates the right to life. CONSIDERS THAT:

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The death penalty is frequently used as an instrument of repression against opposition, racial, ethnic, religious and underprivileged groups, Execution is an act of violence and violence tends to provoke violence, The imposition and infliction of the death penalty is brutalizing to all who are involved in the process, The death penalty has never been shown to have a special deterrent effect, The death penalty is increasingly taking the form of unexplained disappearances, extrajudicial executions and political murders, Execution is irrevocable and can be inflicted on the innocent. AFFIRMS THAT: It is the duty of the state to protect the life of all persons within its jurisdiction, without exception, Executions for the purposes of political coercion, whether by government agencies or others, are equally unacceptable, Abolition of the death penalty is imperative for the achievement of declared international standards. DECLARES: Its total and unconditional opposition to the death penalty, Its condemnation of all executions, in whatever form, committed or condoned by governments, Its commitment to work for the universal abolition of the death penalty. CALLS UPON: Non-governmental organizations, both national and international, to work collectively and individually to provide public information materials directed towards abolition of the death penalty, All governments to bring about the immediate and total abolition of the death penalty, The United Nations unambiguously to declare that the death penalty is contrary to international law. 12] Amnesty Internationals Declaration on the Participation of Health Personnel in the Death Penalty Amnesty International,

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Recalling that the spirit of the Hippocratic Oath enjoins doctors to practice for the good of their patients and never to do harm, Considering that the Declaration of Tokyo of the World Medical Association provides that the utmost respect for human life is to be maintained even under threat, and no use made of any medical knowledge contrary to the laws of humanity, Further considering that the World Medical Association, meeting in Lisbon in 1981, resolved that it is unethical for physicians to participate in capital punishment, Noting that the United Nations Principles of Medical Ethics enjoin health personnel, particularly physicians, to refuse to enter into any relationship with a prisoner other than one directed at evaluating, protecting or improving their physical and mental health, Conscious of the ethical dilemmas posed for health personnel called on to treat or testify about the condition of prisoners facing capital charges or sentenced to death, where actions by such personnel could help save the prisoners life but could also result in the prisoners execution, Mindful that health personnel can be called on to participate in execution by, inter alia: Determining mental and physical fitness for execution, Preparing, administering, supervising or advising others on any procedure related to execution, Making medical examinations during executions, so that an execution can continue if the prisoner is not yet dead, Declares that the participation of health personnel in executions is a violation of professional ethics; Calls upon health personnel not to participate in executions; Further calls upon organizations of health professionals: To protect health personnel who refuse to participate in executions To adopt resolutions to these ends, and To promote worldwide adherence to these standards. This declaration was formulated by the Medical Advisory Board of Amnesty International in 1981 and revised in 1988 in the light of developments on the issue.

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13] Joint declaration of 42 international non-governmental human rights organizations, recognized as consultative bodies by the Economic and Social Council Sixth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Caracas, Venezuela, 25 August5 September 1980. The following resolution is supported by the international nongovernmental organizations listed below, which ask the Congress to consider it under topic 5 of the program: United Nations Norms and Guidelines in Criminal Justice: From Standard-Setting to Implementation. The organizations that represent a significant portion of educated public opinion from all parts of the world have the hope that the Congress will support the proposals contained in the resolution. The undersigned international non-governmental organizations working on behalf of human rights, Affirming their firm commitment to the protection of the right to life of all human beings, Reiterating their complete opposition to any form of cruel, inhuman or degrading treatment or punishment, Considering that the death penalty if a violation of both of the aforementioned principles, Ask all governments that preserve capital punishment to cease its use; Ask the United Nations General Assembly to issue a declaration urging its complete abolition throughout the world; Ask all international non-governmental human rights organizations to make every possible effort nationally and internationally to achieve abolition of capital punishment. Amnesty International Anti-Slavery Society Arab Lawyers Union Caritas Internationalis Commission of the Churches on International Affairs of the World Council of Churches Friends World Committee for Consultation (Quakers) Alliance of Women International Association for Religious Freedom

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International Association of Democratic Lawyers International Confederation of Free Trade Unions International Council of Jewish Women International Council of Women International Federation of Free Journalists International Federation of Human Rights International Federation of Women Lawyers International League for Human Rights International Movement for Fraternal Union among Races and Peoples International OrganizationJustice and Development International Peace Bureau International Social Service International Union for Child Welfare International Union of Judges International Young Christian Workers International Youth and Student Movement for the United Nations Minority Rights Group Pax Christi Pax Romana Socialist International Women Socit Internationale de Prophylaxie Criminelle Union of Arab Jurists War Resisters International Womens International League for Peace and Freedom Womens International Zionist Organization World Alliance of Young Mens Christian Associations World Assembly of Youth World Confederation of Labor World Federation of United Nations Associations World Jewish Congress World Muslim Congress World Student Christian Federation World Union of Catholic Womens Organizations World Young Womens Christian Association

Appendix 2-A.
JUVENILES EXECUTED 1] Charles Rumbaugh [white, Texas] was a seventeen-year-old at the time of a murder carried out during a robbery. He started criminal activity at the age of six and at twelve had committed an armed robbery. When he was executed by lethal injection on September 11, 1985, ten years after his conviction, he was the first juvenile offender of twenty-one years to be executed in the USA. 2] James Terry Roach [white, South Carolina] was seventeen years old at the time of a double murder carried out in the company of an adult male and another juvenile. The younger accomplice testified in exchange for a lighter sentence. Roach and the other defendant both pleaded guilty and were sentenced to death in December 1977, barely six weeks after the crime. Roach was represented by a court-appointed attorney who was under investigation for irregularities in his legal practice. On appeal, lawyers submitted evidence of diminished intellectual capacity, with an IQ of 75 to 80, and possible signs of Huntingdons Disease, a progressive neurological disease. Despite appeals from former US President Jimmy Carter, UN Secretary-General Javier Prez de Cullar and other world figures, he was executed on January 10, 1986. 3] Dalton Prejean [black, Louisiana], sentenced to death in 1978 and executed in 1990. He was seventeen years old at the time of the murder of a police officer in 1977. Prejean was tried before an all-white jury and represented by a court-appointed lawyer. At his trial, evidence was presented of intellectual impairment. His IQ was measured at 71. He was abandoned by his mother at the age of two weeks and was raised by a relative who was reportedly violent. From the age of thirteen he spent time in institutions and was diagnosed as suffering from various mental illnesses including schizophrenia. At age fourteen he was committed to an institution for killing a taxi driver. Medical opinion
279

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recommended long-term hospitalization under strict supervision. Nevertheless, he was released after three years, reportedly because of lack of funds to keep him institutionalised. Despite appeals for clemency in 1989 and 1990 he was electrocuted on May 18, 1990, twelve years after being sentenced to death. 4] Jay Pinkerton [white, Texas] was executed by lethal injection on May 15, 1986, nearly five years after two murders committed when he was seventeen. 5] Johnny Garrett [white, Texas], executed in 1992. He was convicted of the murder in 1981of a seventy-six-year-old white nun. He had a long history of mental illness and was severely sexually and physically abused as a child. This history was not revealed at the trial. Between 1986 and 1992, three medical experts reported that he was chronically psychotic and brain-damaged as a result of head injuries sustained as a child. Appeals for clemency from Pope John Paul II and from the Franciscan Sisters religious community to which the murdered nun belonged were to no avail and Johnny Garrett was executed by lethal injection on February 11, 1992. 6] Curtis Harris [black, Texas], executed in 1993. He was seventeen years old at the time of the crimethe murder of a white man in 1978. He was one of nine children brought up in extreme poverty. He was regularly beaten as a child by an alcoholic father. At the trial, three black jurors were excluded; his jury was all white. He was sentenced to death in 1979. His conviction was overturned, he was retried and sentenced to death again in 1983. In 1986 he was examined by Dr Dorothy Otnow Lewis, Professor of Psychiatry at the New York University School of Medicine, who found that he had a low IQ (77) and had organic brain damage resulting from beatings suffered as a child. None of the information about his upbringing or mental capacity was raised by his lawyer at the original trial. His appeals against the sentence failed and he was executed on July 1, 1993. 7] Frederick Lashley [black, Missouri], executed in 1993. He was the first child offender to be executed in Missouri for 60 years when he was subjected to lethal injection on July 28, 1993. He was convicted and sentenced to death by an all-white jury in 1982

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for the murder of his cousin in 1981. He was under the influence of drugs at the time of the killing. He had been abandoned at a young age by his mother and had been brought up by relatives. He began drinking alcohol heavily at the age of ten and at the time of the crime was homeless. At his trial he was represented by a lawyer who had never previously acted in a capital case. 8] Christopher Burger [white, Georgia], executed in 1993. He was the first child offender to be executed in Georgia under its current death penalty law. He was seventeen at the time of the murder, committed in 1977, for which he was convicted. He was sentenced to death in 1978. The sentence was vacated but a new sentencing hearing was held and in 1979 he was again sentenced to death. Fourteen years later he was executed by electrocution. At his trial he was represented by a lawyer who had not previously acted in a capital case. Although U.S. juries are required to consider mitigating factors in deciding whether to impose a death sentence, Christopher Burgers lawyer did not present mitigating evidence at the sentencing hearings in either 1978 or 1979. The jury was therefore not told that Christopher Burger had a low IQ, that he was mentally ill and brain damaged from physical abuse received as a child, or that he suffered from a highly disturbed, unstable upbringing and had attempted suicide at the age of fifteen. In 1989, Dr Dorothy Otnow Lewis of the New York University School of Medicine examined Christopher Burger and found organic brain impairment and mental illness. He was scheduled to be executed on December 18, 1990, but received a last-minute stay of execution pending an appeal based on the issue of his mental competence at the time of the crime. The appeal failed and he was executed on December 7, 1993. 9] Ruben Cantu [Latino, Texas], sentenced to death in 1984 and executed in 1993. He was seventeen at the time of the offence. He was represented by an inexperienced lawyer, had a troubled family upbringing and was of limited intellectual capacity. SOURCE: Amnesty International: Children and the Death Penalty: Executions worldwide since 1990, <http://www.amnesty.org/en/library/asset/ACT50/007/2002/en/a8cbc007-d7c4-11dd-b4cd01eb52042454/act500072002en.html>.

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