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UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT CASE NO. 95- 20443 RICARDO ALDAPE GUERRA Petitioner-Appellee v. GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION Respondent -Appellant APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS BRIEF OF AMICI CURIAE ALLARD K LOWENSTEIN HUMAN RIGHTS CLINIC; THE SOUTHERN CENTER FOR HUMAN RIGHTS; LAWYERS COMMITTEE FOR HUMAN RIGHTS; INTERNATIONAL HUMAN RIGHTS LAW GROUP; and LAW PROFESSORS HAROLD HONGJU KOH RONALD SLYE Allard K. Lowenstein International Human Righb Clinic 127 Wall Street New Haven, CT 06520 (203) 432-4932 STEPHEN B. BRIGHT Southern Center for Human Rights 83 Poplar Street, NW Atlanta, GA 30303 (404) 688-1202 Attorneys for Amici Curiae
Guerra v. Johnson, No. 95-20443 (5th Cir. 1996)
The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the Judges of this Court may evaluate possible disqualification or recusal.
1. The Allard K. Lowenstein International Human Rights Clinic (Clinic) of the Yale Law School, New Haven, CT; Harold Hongju Koh and Ronald Slye, attorneys working therein; and Paige Chabora, Jonathan Freiman, Rebecca Noonan, Ariadne Staples, and Tarnmy Sun, J.D. candidates working therein. The Clinic was organized in 1991 at the Yale Law School as a faculty-supervised course under the auspices of the Allard K. Lowenstein International Human Rights Project, a student-run organization that seeks to educate and inspire law students, scholars, practicing attorneys and policymakers in the defense of international human rights. The Clinic has acted as counsel for alien plaintiffs in several ongoing lawsuits seeking damages for violations of international law and human rights under the Alien Tort Claims Act, as well as several lawsuits asserting the rights of Haitian and Cuban refugees. See. e.g., Haitian Ctrs. Council. Inc. v. Sale, 823 F. Supp. 1028 (E.D.N.Y. 1993) (vacated by settlement on other grounds). The important questions presented here regarding the treatment of aliens are therefore of great interest to the Clinic and its clients.
2. The Southern Center for Human Rights, Atlanta, GA; Stephen B. Bright, the Director therein. The Southern Center is an organization that for the last twenty years has looked after the interests of the human and civil rights of persons facing the death penalty and other criminal punishments in the Southern United States.
3. The Lawyers Committee for Human Rights (Lawyer's Committee) is a non-profitorganization founded in 1978 to protect and promote fundamental human rights, including the right to be free from abduction, torture, and extrajudicial killing. Its work is impartial,holding each government to the rule of law, including the human rights standards affirmed in instruments of international law. The organization regularly sends fact-finding missions to foreign countries, publishes reports on federal policy and legislation, and participates as amicus curiae in U.S. cases raising questions of international human rights law where it may be of assistance to the court.
4. The International Human Rights Law Group (Law Group) is a non-profit public interest organization incorporated in the District of Columbia. Its goals include the development and promotion of legal norms of international human rights. To that end, the Law Group has represented individuals and organizations, on a pro bono basis, before United States and international tribunals.
5. The following teachers of law, who specialize in the areas of international human rights law, capital punishment, and immigration law:
Deborah Anker is Lecturer on Law at Harvard Law School.
Anne-Marie Slaughter is Professor of Law at Harvard Law School.
Abram Chayes is Felix Frankfurter Professor of Law Emeritus at Harvard Law School.
Michael J. Churgin is Raybourne Thompson Centennial Professor of Law at the University of Texas.
Anthony D'Arnato is Leighton Professor of Law at Northwestern University School of Law
Nora V. Demleitner is Assistant Professor of Law at St. Mary's University School of Law and an Editor of the Federal Sentencing Reporter.
Steven Duke is Science and Technology Professor of Law, Yale Law School.
Joan Fitzpatrick is Professor of Law at University of Washington School of Law
Michael Glennon is Professor of International Law at the University of California Davis School of Law.
Paul Kahn is Nicholas deB. Katzenbach Professor of Law at Yale Law School.
Cynthia Lichtenstein is Professor of Intemational Law at Boston College Law School.
James Liebman is Professor of Law at Columbia University.
Jules Lobel is Professor of Law at University of Pittsburgh School of Law.
Burke Marshall is Nicholas deB. Katzenbach Professor Emeritus and George Crawford Professorial Lecturer in Law at Yale Law School.
Jeffrey J. Pokorak is Associate Professor of Law and Director of the Criminal Justice Clinic at St. Mary's University School of Law.
Jordan Steiker is Professor of Law at the University of Texas.
Ruti Teitel is Professor of Law at New York Law School.
Lee Teran is Director of the Immigration Law Clinic at St. Mary's University School of Law.
David Weissbrodt is Briggs & Morgan Professor of Law at University of Minnesota School of Law.
HAROLD HONGJU KOH RONALD SLYE Allard K. Lowenstein Intemational Human Rights Clinic 127 Wall Street New Haven, CT 06520 (203) 432-4932 STEPHEN B.BRIGHT Southem Center for Human Rights 83 Poplar Street Atlanta, GA 30303 (404) 688-1202 Attomeys for Amici Curiae TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS i TABLE OF CITATIONS v INTRODUCTION 1 SUMMARY OF ARGUMENT 3 ARGUMENT 4 I. THE PROSECUTOR'S REPEATED REFERENCES TO PETITIONER'S NATIONALITY AND ALIEN STATUS VIOLATED THE EIGHTH AND FOURTEENTH AMENDMENTS 4 II. THE STATE VIOLATED PRINCIPLES OF FEDERAL SUPREMACY BY INVOKING GUERRA'S IMMIGRATION STATUS AS AN AGGRAVATING FACTOR 8 III. TAKING IMMIGRATION AND NATIONALITY STATUS INTO ACCOUNT AS AN AGGRAVATING FACTOR WOULD OFFEND INTERNATIONAL LAW AND ILLEGALLY THRUST THE STATE INTO THE CONDUCT OF U.S. FOREIGN POLICY 12 CONCLUSION 16 CERTIFICATE OF SERVICE IV TABLE OF CITATIONS Cases Beck v. Alabama, 447 U.S. 625 (1980) 7 Chy Lung v. Freeman, 92 U.S. 275 (1875) 8, 16 Dawson v. Delaware, 503 U.S. 159, (1982) 6,7 DeCanas v. Bica, 424 U.S. 351 (1976) 10 Espinoza v. Farah Manufacturing Co.. Inc., 414 U.S. 86 (1973) 5,6 Fiallo v. Bell, 430 U.S. 787 (1977) 8 Furman v. Georgia, 408 U.S. 238 (1972) 5 Gardner v. Florida, 430 U.S. 349 (1977) 7 Ingram v. The State, 323 S.E.2d 801 (Ga. 1984) 13 League of United Latin American Citizens v. Wilson, 908 F. Supp. 755 (C.D. Cal. 1995) 10 Mathews v. Diaz 426 U.S. 67 (1976) 9 Makhija v. Deleuw, Cather & Co. 666 F.Supp 1158 (N.D. 111 1987) 6 The Paquete Habana. 17S U.S. 677 (1900) 13 Plyler v. Doe. 457 U.S. 202 (1982) passim v Soering v. U.K., 11 E.H.R.R.439(1989) 15 Turner v. Murrav, 476 U.S. 28 (1986) 8 United States v. Ortiz, 422 U.S. 891 (1975) 8 United States v. Onwuemene, 933 F.2d 650 (8th Cir. 1991) 11 United States v. Pink, 315 U.S. 203 (1942) 15 Williams v. Illinois. 399 U.S. 235 (1970) 4 Woodson v. North Carolina, 428 U.S. 280 (1976) 5,7 Zant v. Stephens, 462 U.S. 862 (1983) 5,7 Constitutional Provisions U.S. Const. art. 1 8 U.S. Const. amend. VIII 4 U.S. Const. amend. XIV 4 Statutes and Treaties 8 U.S.C. 12S1 (1992) 9 8 U.S.C. 1325 (1995) 9 International Covenant on Civil and Political Rights, art. 2, adopted Dec. 16, 1966, G.A. Res. 2200, U.N. Doc. A/6316 12,13 United States Sentencing Guidelines 2L1.2(195) 11 United States Sentencing Guidelines 5H1.10(1995) 11 viUniversal Declaration of Human Rights, G.A. Res 217 A(III), 3 GAOR U.N. Doc. A1810, December 10, 1948 12 Miscellaneous Steve Coll, The Brothers and the Grisly Sentence, Washington Post, Oct. 2, 1991, at B1 14 Claire Cooper, Foes of the Death Penaltv Have a Friend, Sacramento Bee, June 26, 1994 15 Suzanne Espinosa, Mexico to Fight California Executions, S.F. Chron., August 5, 1993 15 Richard B. Lillich, The Soering Case, 85 Arn. J. Int'1 L. 128 (1991) 15 Human Rights Watch, Human Rights World Watch Report 1996 (1995) 13,14 Marg Peyser, A Tie-Dyed Terrorist. Newsweek, January 22, 1996 14 Restatement (Third) of Foreign Relations Law of the United States (1987) 12, 13 Melissa Roberts, Justice in Six Lashes?. Newsweek, April 11, 1994 14 Anthony Spaeth, He is Out, Time, September 4, 1995 14 United States Department of State, Country Reports for Human Rights Practices (1982) 14 Charles P. Wallace, Singapore Reduces Caning Sentence of U.S.Teen-Ager. Los Angeles Times, May 4, 1994 14
Petitioner-appellee Ricardo Aldape Guerra was convicted of capital murder in 1982, in the District Court of Harris County, Texas and sentenced to death by lethal injection. In 1995 the United States District Court for the Southern District of Texas conditionally granted petitioner's Writ of Habeas Corpus, a ruling from which the State now appeals. The facts and procedural history are fully set forth in Petitioner's merits brief. This amicus brief will address a single issue: whether the State's prosecutor illegally appealed to ethnic and nationality prejudice and anti-immigrant bias on the part of the jury.
Ricardo Aldape Guerra is a Mexican national, who had recently arrived in Houston at the time of the crime for which he was convicted. From the outset, his trial was tainted by appeals to ethnic prejudice and anti-immigrant bias. At voir dire, the prosecution repeatedly emphasized Guerra's alien status. Prosecuting counsel told four of the subsequently selected jurors that during the penalty phase of the trial, they might consider Guerra's alien status as a factor in determining "what type of person he is" -- i.e. an aggravating circumstance -- when deciding the probability that he would commit criminal acts of violence that would constitute a continuing threat to society. (17 SR 2603-04, and 2925, 18 SR 3254, 19 SR 3552).
Throughout the bifurcated trial, the prosecution repeatedly emphasized Guerra's alien status and nationality, both covertly and overtly. During the conviction phase, a prosecution witness described the neighborhood in which respondent lived. and where the crime occurred, as "inhabited by Mexican-American people, . . . most of [whom] are in a low income range." (20 SR 63). When cross-examining Guerra, prosecuting counsel stressed that he had come to the United States from Monterrey, Mexico just two months prior to the crime, that he had arrived accompanied by two other young Mexican men, and that they all lived together withother young Mexican-Americans in a poor, predominantly Hispanic neighborhood. (See 24 SR 855 et seq..)
During the penalty phase, the prosecution appealed directly to the jury's prejudices,depicting both the defendant and his acquaintances as threatening outsiders. When addressing the future dangerousness of the defendant, the prosecutor explicitly linked Guerra's future dangerousness with his recent emigration to this country. He said:
When you return to open court with the questions and the answers, either yes or no to those questions, your answers will demonstrate what type of person Ricardo Aldape Guerra was while he was in our community for less than two months after coming here from Monterrev. Mexico in Mav. and YOU will determine by your answers what he is likely to do in the future. (27 SR 165) (emphasis added).
The prosecutor appealed directly to the perception that Guerra did not belong to "our" community: "[you could not have prevented the terror and horror that he has inflicted on our community." (27 SR 167) (emphasis added). In closing, the prosecutor said:
"You see, as a society, as a community, as law-abiding citizens, we have a right to protect ourselves." (27 SR 168). "I ask that you return a speedy verdict and you let the other residents at 4907 Rusk . . . know just exactly what we as citizens of Harris County think about this kind of conduct that has been exemplified before you. (27 SR 178-79) (emphasis added).
Viewed in light of the voir dire, the cumulative effect of these references constituted an illegal appeal to ethnic prejudice and anti-immigrant bias. Far from denying that such an appeal occurred, the State's opening brief contests the District Court's finding that the prosecutor acted inappropriately in "teling [sic] the jury that Guerra was an illegal alien and that the jury could consider that evidence at the punishment phase in determining whether [Guerra] would continue to commit violent acts that would constitute a threat to society, State Br. at 36. The State continues to insist that the "inferences that the jury might be able to draw from that fact [of Guerra's immigration status] could legitimatelY shed light on whether a death sentence was appropriate." Id. (emphasis added). Thus, it remains the State's explicit position that it appropriately invoked Guerra's status as an alien and as a Mexican as an aggravating factor that somehow justified the imposition of the death penalty.
The State's repeated references to Guerra's nationality and alien status during the capital proceedings violated the Eighth and Fourteenth Amendments. The State may no more cite a defendant's alien status or nationality as proof of an aggravating circumstance warranting imposition of the death penalty than it may cite his race, religion, or political affiliation. The prosecutor's references improperly invited the jury to sentence the defendant based not on his acts, but on his national origin. Nor did the State even attempt to prove a causal link between Guerra's immigration and nationality status and his future dangerousness. The Prosecutor's repeated references thus seriously undermined the reliability and procedural fairness of the sentencing, which must be enhanced, not diminished, in a capital case.
The State also violated core principles of federalism when it invoked Guerra's undocumented status as an aggravating factor. The State was constitutionally barred from seizing upon Guerra's relationship to the United States federal government as a reason why he represented a future danger to the State of Texas. Permitting a State to take a defendant's nationality into account as an aggravating factor in capital cases would offend international law and thrust the State deeply into the conduct of U.S. foreign policy. Such State actions would likely chill relations with our close allies, trigger international opprobrium, and increase danger for American citizens standing trial abroad. We know of no other State or Nation that specifically permits a defendant's immigration status to be considered in his capital sentencing. Moreover, if the jury in this case could use Guerra's ethnicity as a de facto aggravating factor, the State of Texas would join a very short list of pariah regimes, such as Iraq and Nigeria, that have permitted such heinous conduct.
The State's injection of Guerra's nationality and alien status into the capital proceedings violated both the Eighth and Fourteenth Amendments. See U.S. Const. amend. VIII ("nor [shall] cruel and unusual punishments [be] inflicted"); id., XIV, I ("nor shall any State deprive any person of life, liberty or propert.,v, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws").
It is settled law that a State violates the Fourteenth Amendment when it punishes a defendant based on his status, rather than his acts. See. e.g., Williams v. Illinois. 399 U.S. 235 (1970) (State violates equal protection when it subjects convicted defendants to period of imprisonment beyond statutory maximum because of indigence). This imperative carries particular force when the State seeks not merely to punish, but to put to death, a person found within its jurisdiction. "It would seem to be incontestable that the death penalty inflicted on one defendant is 'unusual' [and hence, an Eighth Amendment violation] if it discriminates against him by reason of his race, religion, wealth, social position, or class, or if it is imposedunder a procedure that gives room for the play of such prejudices." Furman v. Georgia, 408 U.S. 238, 242 (1972) (Douglas J. concurring). The Supreme Court has subsequently reaffirmed that in capital sentencing, a State may not "attach[ ] the 'aggravating' label to factors that are constitutionally impermissible or totally irrelevant to the sentencing process, such as for example the race, religion or political affiliation of the defendant." Zant v. Stephens. 462 U.S. 862, 885 (1983) (emphasis added). "What is important . . . is an individualized determination on the basis of the character of the individual and the circumstances of the crime" that aggravating factors exist warranting the punishment of death. Id. at 879. "The qualitative difference between death and other penalties calls for a greater degree of reliability when the death sentence is imposed." Zant, 462 U.S. at 888 (emphasis added); Woodson v. North Carolina, 428 U.S. 280, 305 (1976) (opinion of Stewart, Powell, and Stevens, J.J.).
This precedent compels the conclusion that the State may no more cite a defendant's alien status or nationality as proof of an aggravating circumstance warranting imposition of the death penalty than it may cite his race, religion, or political affiliation. Attaching the "aggravating" label to a defendant's nationality or immigration status injects a constitutionally impermissible and irrelevant factor into the capital sentencing process. For three reasons, Guerra's Mexican nationality and his alien status, like his race and religion, are factors totally irrelevant to capital sentencing.
First, prosecutorial references to a defendant's alien status improperly invite the jury to sentence based not on the defendant's acts, but on his national origin. In Espinoza v. Farah Manufacturing Co.. Inc., 414 U.S. 86 (1973), the Supreme Court cautioned against governmental classifications allegedly drawn along alienage lines that in fact invite nationalorigin discrimination. Espinoza ruled that Title VII of the 1964 Civil Rights Act bars discrimination based on citizenship whenever it has the purpose or effect of discriminating based on national origin. Id. at 92. See, e.g., Makhija v. Deleuw Cather & Co., 666 F.Supp 1158, 1175 (N.D. Ill. 1987) (statement that plaintiff was denied promotion because he was not U.S. citizen found to be euphemism for national origin discrimination). See also Plyler v. Doe, 457 U.S. 202, 210 (1982) ("[Wle have clearly held that the Fifth Amendment protects aliens whose presence in this country is unlawful from invidious discrimination by the Federal Government."). The prosecution's statements here had precisely such a discriminatory purpose and effect. The jury was urged to punish Guerra more harshly, not because of the crime he had allegedly committed, but because of his status: as an alien who had recently arrived in this country from Mexico. The prosecution gave no valid rewn why Guerra's alien status or Mexican citizenship was relevant to its case, and offered no empirical evidence that Guerra's foreign citizenship provided any reliable measure of his future dangerousness. Indeed, to the extent that such evidence exists, it supports the opposite conclusion. See First Application for Writ of Habeas Corpus, at 137; Amicus Brief of American Immigration Lawyers Assn., et al. at 10-11 &: apps. 2-3 (filed December 22, 1992) (presenting statistics showing that in fact illegal aliens are less likely to commit future crimes).
Second, the State of Texas can establish no causal link between Guerra's ummigration and nationality status and his future dangerousness. The prosecution did not prove by a preponderance of the evidence, much less beyond a reasonable doubt, that petitioner's nationality or alien status (a governmental classification based solely on petitioner's place of birth and means of entry into the United States) had any bearing on his alleged crime or any other question relevant to his sentencing. In Dawson v. Delaware, 503 U.S. 159, 16S (1992),the Supreme Court recently held that a defendant's membership in a white supremacist gang could not be invoked as an aggravating factor. because no causal connection existed between that membership and the defendant's future behavior. The Court noted that "[e]ven if the Delaware group to which Dawson allegedly belongs is racist, those beliefs . . . had no relevance to the sentencing proceeding in this case." Id. at 166. If the Dawson defendant's voluntary membership in Aryan Nation cannot be used as an aggravating factor, evidence of Guerra's membership in the Mexican nation must constitute an equally illegitimate aggravating factor. Whether or not alienage represents a suspect class for equal protection purposes, Texas had no valid purpose in repeatedly referring to Guerra's immigration and nationality status at the sentencing hearing. As in Dawson. the facts cited regarding Guerra's status were simply too remote from the crime charged to have any relevance to the capital sentencing hearing.
Third and finally, the prosecutor's repeated references to Guerra's nationality and alien status seriously undermined the reliability and procedural fairness of his trial. The Supreme Court has specified that the reliability and fairness of the capital sentencing process must be enhanced, not diminished, because of the "qualitative difference between death and any other permissible form of punishment." Zant. 462 U.S. at 884; Woodson, 428 U.S. at 305; Beck v. Alabama, 447 U.S. 625, 638 n.l3 (1980); Gardner v. Florida, 430 U.S. 349, 363 (1977) (White, J., concurring). By injecting Guerra's immigration and nationality status into the sentencing process, the prosecutor improperly appealed to the jury's potentially broad prejudices about Guerra's countrymen or other immigrants, thereby denying defendant asentence based on an individualized determination of his character and crime.
The State also violated core principles of federalism when it invoked Guerra's undocumented status as an aggravating factor. Texas cannot justify treating Guerra differently based on his undocumented status, because any sanction for Guerra's "illegal presence" in this country is the sole concern of the federal government.
By treating Guerra differently because of his undocumented status, the State impermissibly invaded rights delegated exclusively to the federal government to regulate immigration and naturalization. U.S. Const., art. I, sec. 8, cl. 4. It is settled law that only the federal government can exclude or expel an undocumented alien because of his undocumented status. Fiallo v. Bell, 430 U.S. 787, 792 (1977). It follows that no state can execute that same alien by suggesting that his undocumented status somehow renders him a better candidate for execution than an identically situated citizen or legal resident.
The Supremacy Clause preempts state laws that conflict with federal law or obstruct federal policy. See. e.g., United States v. Ortiz,422 U.S. 891, 915 (1975) (White, J., concurring) ("This problem [of illegal immigration] . . . essentially poses questions of national policy and is chiefly the business of Congress and the Executive Branch ...."). "If it be otherwise, a single State can, at her pleasure, embroil us in disastrous quarrels with other nations." Chy Lung v. Freeman, 92 U.S. 275, 280 (1875). For that reason it has long beenheld that states have no power to regulate irnrnigration of undocumented aliens and that state laws regulating irmnigration in a manner inconsistent with federal policy are squarely preempted.
By characterizing Guerra's undocumented status as an aggravating factor, the State not only discriminated against Guerra because of his undocumented status, but also sought to send a message to other Mexican residents that their acts would be harshly punished. See 27 SR 178-79 ("I ask that you . . . Iet the other residents at 4907 Rusk . . . know just exactly what we as citizens . . . think about this ki nd of conduct that has been exemplified before you."). Yet the State had no constitutional right to seize upon Guerra's relationship to the United States federal government as a reason why he represented a future danger to the State of Texas. Moreover, it is plainly the federal government's job -- not the State's -- to send messages to foreign immigrants.
"[T]he responsibility for regulating the relationship between the United States and our alien visitors has been committed to the political branches of the Federal Government." Mathews v. Diaz, 426 U.S. 67, 81 (1976). The Federal Government may of course subject an alien who has entered the country illegally to civil deportation proceedings under 8 U.S.C. 12SI (1992) (or to federal misdemeanor charges under 8 U.S.C. 1325 (1995)), but that does not entitle a State to use the same fact to aggravate its criminal punishments against him. Presumably, the State would not invoke parallel federal immigration violations by American citizens -- for example, violation of employer sanctions laws -- as proof of future dangerousness constituting an aggravating circumstance cognizable in capital sentencingprocedures against citizen defendants.
The U.S. District Court for the Central District of California recently underscored this point in League of United Latin American Citizens v. Wilson, when it struck down as preempted by federal law various provisions of Proposition 187, a California referendum to deny benefits, education, and health care to undocumented aliens. 908 F. Supp. -755, 772 (C.D. Cal. 1995). Provisions requiring classification and reporting of suspected undocumented aliens were struck down as preempted because they, in part, violated the Supreme Court's holding in DeCanas v. Bica 424 U.S. 351 (1976), that "a state cannot, on its own, decide who is or is not entitled to be present in the United States." League of UnitedLatin American Citizens, 908 F. Supp. at 772 (citing DeCanas, 424 U.S. at 355). It follows that Texas cannot, on its own, decide who is or is not entitled to execution in the United States by allowing its prosecutors to use a defendant's undocumented status to suggest that he is somehow a better candidate for execution than those legally present in this country.
It is true that in some cases, "undocumented status, coupled with some articulable federal policy, might enhance state authority with respect to the treatment of undocumented aliens." Plvler, 457 U.S. at 226. But in Plvler itself, the Court held that Texas was barred from discriminating against the children of undocumented aliens by the lack of a "national policy that supports the State in denying these children an elementary education." Id.Similarly, no national policy exists favoring express discrimination against undocumented aliens in capital sentencing.
To the contrary, all federal policies point in the opposite direction. The Federal Sentencing Guidelines would not treat Guerra's undocumented status as an aggravating factor militating in favor of the death penalty. The Federal Sentencing Guidelines 2L1.2, concerning unlawful entry into the United States, permits upward departures from prescribed sentences only when a defendant has a history of prior instances of deportation. United States Sentencing Guidelines 2L1.2 (1995). Guerra's illegal status in this country was a civil offense potentially redressable by deportation, but he had not been civilly punished or deported before his arrest and trial in this case. Nor, under Federal Sentencing Guidelines 5H1.10, can the defendant's national origin be made relevant to the determination of a federal sentence. United States Sentencing Guidelines 5H1.10. Thus, the Federal Sentencing Guidelines nowhere authorize the state's use of Guerra's first-time illegal entry as an aggravating factor for the death penalty. See. e.g.. United States v. Onwuemene, 933 F.2d 650, 652 (8th Cir. 1991) (vacating sentence because trial court improperly imposed maximum sentence based in part on alien status). Here the State of Texas not only employed a forbidden classification--undocumented status--to single out Guerra for special treatment, but also used that classification in a manner that conflicts with the federal criminal treatment of undocumented status. "It would be incongruous to hold that the United States, to which the Constitution assigns a broad authority over both naturalization and foreign affairs, is barred from invidious discrimination with respect to unlawful aliens, while exempting, the States from a similar limitation." Plyler, 457 U.S. at 210-11 n.9 (1982).
The State's conduct offends principles of federalism in part because it violates wellsettled principles of international law. Taking Guerra's nationality into account in capital sentencing would violate his due process rights under established rules of international law. The International Covenant on Civil and Political Rights, which the United States has ratified, declares in pertinent part: "Each State Party to the present covenant undertakes to respect and ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, . . . national or social ordain, . . . or other status." International Covenant on Civil and Political Rights, art. 2 1, 26 999 U.N.T.S. 171, 6 I.L.M. 368 (1967), adopted by the General Assembly of the United Nations Dec. 16, 1966 (entered into force March 23, 1976) (emphasis added) (hereinafter "Covenant"). Accord Universal Declaration of Human Rights, G.A. Res. 217, U.N. Doc., A/1810 at 71 (1948). The American Law Institute's Restatement (Third) of Foreign Relations Law of the United States ("Restatement") 711, comment c, further recognizes that-customary international law "requires that foreign nationals be accorded the equal protection of the laws and forbids unreasonable distinctions between aliens and nationals") (emphasis added). That protection extends to "even [to those foreign nationals] unlawfully in the country." Id. at comment i. As a signatory to the Covenant, the United States has further undertaken "to guarantee to all persons equal and effective protection against discrimination," including discrimination based on "race, colour, . . . national or social origin, . . . birth or other status." Covenant art. 26; see also Universal Declaration of Human Rights, G.A. Res. 217, U.N. Doc. A/1810 at 71 (1948) art. 2., Restatement 702. "Thecustomary law of human rights is part of the law of the United States to be applied as such by State as well as federal court," Restatement 702, comment c, and thus should have been followed by the sentencing court in Guerra's case. See The Paquete Habana, 175 U.S. 677, 700 ( 1900).
Article 14 of the International Covenant further obligates every party -- including the United States -- to ensure that all persons tried on a criminal charge "shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law." Accord Restatement 701, reporters' note 6 (customary international law requires "a fair and public trial for persons charged with crime" ). Art. 62 of the Covenant further mandates that death sentences be imposed "only for the most serious crimes in accordance with the law in force" and "carried out pursuant to a final judgment rendered by a competent court," thereby barring executions conducted without stringent due process safeguards.
Guerra's sentence was not imposed in accordance with these stringent procedural requirements. The sentence here was imposed in a manner inconsistent with the established practice of civilized nations. We know of no nation that permits, as a matter of law, the consideration of immigration status or ethnicity as a factor favoring application of the death penalty. Further, we know of no state that permits de facto consideration of immigration status in a capital sentencing decision. Only the most isolated pariah states have permitted the de facto use of ethnicity in capital sentencing or other exercises of prosecutorial discretion. See, e.g., Iraq, Human Rights Watch World Report 1996. at 282-84 (1995) (Kurds, Kuwaitis, Kuwaiti-Bedoons subject to death penalty because of nationality); Nigeria, id. at 36 (Ogoni people subject to death penalty because of nationality); and pre-1990 South Africa (Blacks not accorded due process of law in criminal searches), U.S. Department of State, Country Reports for Human Rights Practices 1982, at 285 (1982). If the jury could use Guerra's immigration or nationality status as an aggravating factor, the State would join that very short list.
To sanction a State's use of national origin and immigration status as an aggravating circumstance warranting the death penalty would impair United States foreign policy and jeopardize U.S. citizens standing trial in other countries. When Singapore sentenced an American youth, Michael Fay, to six lashings by a cane, American popular opinion rose up in protest against the barbarism of such a punishment. Melissa Roberts, Justice in Six Lashes?, Newsweek, April 11, 1994, at 40. Yet if the State of Texas could execute this defendant under circumstances which penalize hitn for his nationality and immigration status, there would seem little reason why foreign governments could not do the same. Regimes such as the People's Republic of China, Peru, or Pakistan could similarly punish American citizens with execution, citing their nationality and immigration status as proof of their future dangerousness.
Guerra is not the only alien, much less the only Mexican national. currently on death row. Permitting the death penalty to be imposed based in part on the defendant's nationality would incur not only the condemnation of the international community at large, but also the wrath of the Mexican government in particular.Foreign countries who are already refusing to extradite persons indicted for capital crimes would likely find additional reasons to refuse extradition if states were perceived as more likely to impose the death penalty upon foreign nationals or non-citizens. The State of Texas should not be allowed unilaterally to chill relations with our close allies, to trigger international opprobrium, and to increase danger for American citizens standing trial abroad. As the Supreme Court noted in United States v. Pink, 315 U S 203, 232-33 (1942), "the conditions for 'enduring friendship' between the nations . . . are not likely to flourish where, contrary to national policy, a 'lingering atmosphere of hostility is created by state action."' It was precisely for these reasons that the Court has long held that states lack the power to regulate immigration of undocumented aliens by ~mposing punishments more severe than those authorized by federal policy. "If it be otherwise, a single State can, at her pleasure, embroil us in disastrous quarrels with other nations." Chy Lung v. Freeman, 92 U.S. 275, 280 (1875).
For the foregoing reasons, the District Court's conditional grant of the writ of habeas corDus should be affirmed.
I, Stephen B. Bright, hereby certify that on this 9th day of March 1996, I caused a copy of the Brief Arnicus Curiae of the Allard K. Lowenstein Human Rights Clinic et al. in Guerra v.Johnson, No. 95-20443 (5th Cir.), to be served by Federal Express upon:
1. 4907 Rusk was the address where Mr. Guerra lived until shortly before the crime took place. At the time of the trial it was occupied by several Mexican-American youths, some of whom had testified for the defense at the trial. (24 SR 782, 813-14).
2. Regardless of his immigration status, Guerra is undeniably a "person within [the State's] jurisdiction" for purposes of the Fourteenth Amendment. See Plyler v. Doe, 457 U.S. 202, 212 (1982).
3. In Turner v. Murrav, 476 U.S. 28, 36-37 (1986) the Court held that the enhanced requirement of procedural faimess in capital cases entitles the defendant to specialized voir dire to avoid racial discrimination. Here the voir dire was conducted in a manner that encouraged, not discouraged, the jurors to take factors such as national origin and immigration status into account in rendering their ultimate sentence.
4. Of course, not "every state enactment which in any way deals with aliens is a regulation of immigration and thus per se pre-empted ...." DeCanas v. Bica. 424 U.S. 351, 355 (1976). States may apply generally applicable laws to undocumented aliens living within their jurisdiction, and treat such undocumented aliens like other state residents. But invoking immigration violations as an aggravating factor only when sentencing undocumented aliens does not constitute neutral application of generally applicable state criminal laws. In effect the State singled out Guerra's undocumented status as an aggravating factor and subjected him to an enormous punishment in a manner that is squarely inconsistent with federal policy.
5. Even when other states of the United States have executed defendants who were foreign nationals, we know of no case specifically permitting the defendant's immigration or nationality status to be considered during the sentencing phase of the trial. In Ingram v. The State, 323 S.E.2d 801 (Ga. 1984), for example, Nicholas Ingram, a British national, was tried, convicted, and sentenced without regard to his nationality.
6. Under severe diplomatic pressure, the Singaporean government later reduced Fay's sentence to four rather than six lashes. Charles P. Wallace, Singapore Reduces Caning Sentence of U.S. Teen-Ager. Los Angeles Times, May 4, 1994, at A1.
7. Under intense international pressure, the People's Republic of China recently sentenced an American citizen, Harry Wu, who had been charged with spying, to time served and released him. Anthony Spaeth, He is Out. Time, September 4, 1995, at 36.
8. In a recent, well-publicized case, the Peruvian Government sentenced Lori Berenson, a 26-year-old American citizen to life imprisonment for alleged treason. See Marg Peyser, A Tie- Dyed Terrorist?. Newsweek, January 22, 1996, at 45.
9. In a recent case that aroused strong United States' protest, Pakistan sentenced (but ultimately did not subject) two American brothers to amputation of their left hands and right feet. See Steve Coll, The Brothers and the Grisly Sentence: Two Americans Face Islamic Justice in Pakistan for a Crime They Say They Didn't Commit., The Washington Post, October 2, 1991, at Bl.
10. 1993 saw the first execution in the United States of a Mexican national in fifty-one years. The execution of Ramon Montoya led to visits to state authorities by, inter alia, the Protection Director for Consulate Affairs of the Mexican Foreign Ministry; the General Visitor for Penitentiary Affairs, the Mexican National Commission of Human Rights (which reports directly to the President); and the Mexican Consul-General in San Francisco. See Suzanne Espinosa, Mexico to Fight California Executions, S.F. Chron., August 5, 1993, at A15. Public protest about the execution forced the Mexican government to send riot police to protect the American embassy in Mexico City. Claire Cooper, Foes of the Death Penalty Have a Friend. Sacramento Bee, June 26, 1994, at A1.
11. The Mexican government has registered strong protest regarding Guerra's case and has filed an amicus curiae brief on this appeal in support of Guerra's position. See Amicus Brief of the Government of Mexico. The then-President of Mexico had previously protested Guerra's treatment in the Texas courts. Claire Cooper, Foes of the Death Penalty Have a Friend, Sacramento Bee, June 26, 1994, at Al.
12. Even close allies of the United States have refused to honor extradition treaties in the case of persons at risk of facing the death penalty in the United States. In the well-publicized case of Soering v. U.K. 11 E.H.RR. 439 (1989), Virginia sought extradition of a capital defendant, a West German national who had fled to the United Kingdom. On appeal, the European Court of Human Rights ruled that Soering's extradition to Virginia's death row would violate Article 3 of the European Convention on Human Rights. As a condition for extradition, Britain asked Virginia to guarantee that Soering would not face the death penalty. When Virginia initially declined, offering instead to inform the jury of Britain's opposition to the death penalty, Britain refused to extradite (but later extradited Soering upon receiving Virginia's assurances that it would not seek the death penalty against him). See generally Richard B. Lillich, The Soering Case. 85 Am. J. Int'l L. 128 (1991).
13. J.D. Candidates, Yale Law School.