Respect for the rule of law is one of the many casualties of capital punishment. Public officials who cling to this practice most vociferously are often among the worst offenders.
Texas is a case in point. The execution of Edgar Tamayo Arias has drawn national and international attention. It highlights an aspect of Texas pride that can be endearing but sometimes raises troubling concerns.
In Texas where things are bigger, and true Texans say better, people say only half-jokingly that Texas is a sovereign nation unto its own. The Arias case makes you wonder whether this good natured boasting guides public officials’ decision making more than the law.
Governor Rick Perry’s spokesperson Lucy Nashed stated in response to concerns raised about the case:
“It doesn’t matter where you are from — if you commit a despicable crime like this in Texas, you are subject to our state laws, including fair trial by a jury and the ultimate penalty.”
Well fine, except that’s not the law.
The United States and Texas are bound by the Vienna Convention. The Vienna Convention requires all countries who signed it to provide foreign nationals accused of a crime with notice and an opportunity to seek assistance from their consulate. In Tamayo Arias’ case this assistance would likely have been critical. Language barriers and intellectual disabilities hampered his ability to receive a fair trial. It might have made the difference between an execution and a more appropriate means of holding him accountable.
The United Nations International Court of Justice ruled 10 years ago that Tamayo Arias and others should have their convictions reviewed. In 2005, President George W. Bush ordered Texas and other states to comply. The Supreme Court later ruled that President Bush lacked the authority to order Texas to review the convictions. But this did not change the State’s obligation to follow the law.
This is not a small thing. This country is bound together by laws designed to protect the rights of the individual and carefully balance concerns about federalism and local autonomy to accomplish that goal.
International agreements like the Vienna Convention create a framework setting basic standards for fair and humane treatment and rules of engagement in commerce and in war. Like the Constitution, these agreements are the bedrock upon which we rest our hopes for a fairer, safer and orderly world. We rely on these agreements to protect and advance the interests of U.S. citizens and our national interest. That is why Secretary of State John F. Kerry weighed in on the case, urging Gov. Perry to halt the execution.
Texas is not bound by the Vienna Convention. What about the U.S. Constitution? The Constitution places the authority to define and engage in foreign policy with the federal government. Some argue that by refusing to follow the dictates of the Vienna Convention, Texas is setting international law and policy. Practice in international law, as lawyers like to say, is precedent. In other words, what governments do defines the law.
If this is the case, Americans traveling abroad who get into trouble might not be able to rely on our internationally recognized rights to have our country notified of our detention and our right to receive help from our government, including legal assistance.
The Constitution also forbids the execution of people with intellectual disabilities. And yet in Tamayo Arias’ case, these issues were never properly vetted.
The Governor’s spokesperson must be most clearly understood to say:
“It doesn’t matter where you are from, [or who you are] if you commit a despicable crime in Texas you are subject to our state laws, including a fair trial by jury [as we determine it to be fair], and the ultimate punishment.”
This single-minded pursuit of the ultimate punishment, despite compelling legal and moral arguments to the contrary, has always been the thing to be most feared about capital punishment. Respect for the rule of law where everyone is accountable – including public officials – is still our best defense against chaos and tyranny.
Sadly ironic that by asserting a near absolute right to enforce its capital punishment law in Texas, state officials may be killing the law piece by piece.