By Washington Post Editorial, Tuesday, July 5, 8:07 PM
The OBAMA administration last week took the extraordinary step of asking the Supreme Court to halt the execution of Humberto Leal Jr., a Mexican national scheduled to be executed by Texas on Thursday for the 1994 murder of a 16-year-old girl.
The administration does not contend that Mr. Leal is innocent; nor is it using the case as a vehicle to argue against the death penalty. It is asking the justices for more time to hold up its end of a bargain on a treaty that has significant implications for U.S. citizens who live, work or travel abroad. It is a reasonable request that should be granted.
Mr. Leal is among 40 Mexican nationals on death row in the United States who were not advised of their right to consular access under the Vienna Convention for Consular Relations. The United States is one of about 160 countries that signed the treaty; as such, it is obligated to notify foreign nationals who are arrested in the United States of their right to speak with their embassies and allow them access if they wish. U.S. citizens have reciprocal rights if they are arrested in a country that is also a signatory.
Mexico prevailed before the International Court of Justice, the judicial branch of the United Nations, which concluded that the United States was obligated to provide additional review to determine whether denial of consular access had harmed the defendants.
Texas, where the vast majority of the Mexican nationals are imprisoned, thumbed its nose at the process; in 2008, the state executed Mexican national Jose Ernesto Medellin without providing additional review. The state appears to be on the same path with Mr. Leal. On Monday, the Texas Board of Pardons and Paroles denied Mr. Leal’s request for a reprieve.
In an extraordinary move, the Obama administration asked the Supreme Court to stay Mr. Leal’s execution until the end of the year to give Congress a chance to pass legislation meant to address the Vienna Convention violation. The bill, introduced by Sen. Patrick J. Leahy (D-Vt.), would give Mr. Leal and the other 39 Mexican nationals an opportunity to have a federal judge assess whether denial of consular access significantly hampered their ability to defend themselves in court. The bar for success is rightly high, meaning that few, if any, would obtain a new trial.
Failure to address the breach could disproportionately affect U.S. citizens. In the United States, criminal defendants — citizens and noncitizens alike — are entitled to lawyers; such is not always the case in other countries, making access to a U.S. embassy all the more critical. The matter before the Supreme Court is as much about preserving these protections as about providing a solution to Mr. Leal’s case.