The Wall Street Journal-20080119-Cross Country- Texas and the Death Penalty
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Cross Country: Texas and the Death Penalty
San Antonio -- Last week, the U.S. Supreme Court heard oral arguments in Baze v. Rees, a case that has effectively imposed a national moratorium on the death penalty since September. States are delaying executions until the high court rules.
To get a sense of what's at stake as the high court considers the future of capital punishment, I spoke with Texas Solicitor General R. Ted Cruz, the state's top lawyer. Mr. Cruz is a rising star among conservative jurists. He's a protege of former U.S. Chief Justice William Rehnquist, for whom he clerked and, by the nature of his job, a leading defender of the death penalty in Texas.
Forty states have the death penalty on the books, but only 34 have carried out executions since the Supreme Court permitted states to resume capital punishment in 1976. None come close to Texas, which has carried out 405 executions over three decades. Virginia, with 98 executions, is a distant second.
What accounts for this Lone Star peculiarity, that some find horrifying?
"When a sentence is legally and justly imposed, the state of Texas carries it out," says Mr. Cruz. "And in the judgment of the Texas Legislature and in the judgment of the significant majority of Texans, the death penalty is fundamentally a matter of justice."
Attorneys for Ralph Baze maintain that Kentucky's protocol for lethal injection -- the same three-drug protocol 37 states favor as a method of execution -- violates the Eighth Amendment's prohibition against cruel and unusual punishment.
Mr. Cruz authored an amicus brief for Texas, one of 20 states holding that the protocol when properly administered is consistent with the Constitution and modern standards of morality. While the court's ruling, which is expected in July, may alter that protocol, it's unlikely five justices will find the death penalty itself to be unconstitutional, as some opponents hope.
In fact, it's possible that conservative justices wanted to hear Baze in order to do precisely the opposite -- explicitly reject death penalty challenges on the merits, rather than merely address the procedural issues activist judges have seized on to thwart death penalty laws.
Victims, not policy issues, move Mr. Cruz. "I certainly understand that people of good faith can disagree on this," he says. "But frequently when those in the media or those in the legal profession or in the academic world who are opposed to the death penalty are presenting their arguments, one of the aspects that is strikingly missing is any consideration of the nature and barbarity of the crimes these people commit and any genuine consideration of the impact these crimes have on the victims' families."
That's certainly so in the case of Ralph Baze, who murdered a Kentucky sheriff and deputy in a 1992 ambush, shooting both in the back. And it's so in another death penalty case Mr. Cruz argued before the Supreme Court last fall.
The facts about Jose Ernesto Medellin's role in the brutal gang rape and murder of two teenage girls in Houston in 1993 are not in doubt. He gave a written confession; a Texas jury found him guilty of murder in the course of a sexual assault; then a judge sentenced him to death.
Though Mr. Medellin was born in Mexico, he lived most of his life in the United States. At no time during his trial, sentencing or initial appeal did he or his court-appointed attorneys assert any claims under the Vienna Convention on Consular Relations. The convention requires a consular post to be notified if a citizen of its nation is arrested.
Only after the Texas Court of Criminal Appeals affirmed Mr. Medellin's conviction did he begin the series of federal appeals on the basis of the Vienna Convention that arrived, ultimately, at the Supreme Court. The two issues the justices must address have far reaching implications for American judicial and political systems.
The first issue is whether the rulings of a foreign tribunal -- the International Court of Justice in The Hague -- can bind the U.S. justice system. The ICJ has ruled that foreign-born defendants (including Mr. Medellin) are entitled to review based on violations of the Vienna Convention.
The second issue is whether the president of the United States can compel state courts to obey a foreign court. That's what President George W. Bush asserted in 2005, after the ICJ issued its ruling, when he ordered the Texas Court of Criminal Appeals to review Mr. Medellin's conviction.
The Texas court rejected Mr. Bush's order on constitutional grounds. In an amicus brief filed in Medellin v. Texas, the Bush administration holds that the court's action undermines presidential authority to determine "how the United States will comply with its treaty obligations."
Twenty-eight states along with Puerto Rico signed onto one brief supporting Texas in Medellin. An ideologically diverse group of constitutional law scholars joined in another. Former Attorneys General Ed Meese and Dick Thornburgh, along with former Justice officials from the Reagan administration and both Bush administrations, joined in yet another.
"It is an unusual case that features John Yoo and Erwin Chemerinsky on the same side," Mr. Cruz notes. "It is an unusual case that features Ed Meese and Jerry Brown, now attorney general of California, on the same side."
If there's a common thread in Baze and Medellin, it's a judicial challenge to the will of the people consistent with the Constitution, as reflected by the democratic process. "The Constitution gives democratically elected legislatures the principal responsibility of making policy determinations," says Mr. Cruz. "And before the Supreme Court, Texas has frequently been defending the proposition that the federal courts should respect the determinations of the democratically elected legislatures."
Even if support for capital punishment is declining in popularity nationally, that's a cause that ought to be of concern to people outside of Texas.
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Mr. Gurwitz is a member of the editorial board of the San Antonio Express-News.
