Ted Cruz really, really loves the death penalty

Ted Cruz would represent a lot of firsts should he be elected president: He'd be the first Hispanic president, and the first president to be born in Canada (or anywhere outside the 50 states, for that matter). But he'd also be the first president ever to have clerked for the Supreme Court. And Cruz has cited his subsequent record before the court, where he has presented oral arguments nine times (eight as solicitor general of Texas), as an important credential both in this presidential campaign and in his come-from-behind 2012 run for Senate.

Five of his nine Supreme Court appearances related to the same issue: the death penalty. In each case, Cruz represented the state of Texas and defended capital punishment in cases where even many advocates would normally be squeamish. He defended executing rapists who had killed no one; executing the mentally ill; and executing a man with an IQ of 78. He lost those three cases, all by narrow 5-4 votes. But his two other appearances related to the same case, in which Cruz was opposed by the Bush administration, the Mexican government, and the International Court of Justice. Cruz won, and the defendant was executed five months later.

The José Medellín case

Whatever one thinks about his death sentence and eventual execution, José Medellín was hardly a sympathetic character. At age 18 he, by his own admission, orchestrated the gang rape and murder of two girls, ages 14 and 16, in 1993, committed in conjunction with five other members of his gang. Afterward, he joyfully bragged about the crime to Joe Cantu, one of the gang member's brothers, and Joe's wife Christina, as described in a 1997 state appeals court ruling upholding Medellín's conviction:

[Christina] asked the group what had occurred and appellant responded that they "had fun" and that their exploits would be seen on the television news. Appellant [Medellín] was hyper, giggling, and laughing. … As if to accentuate his conquest, appellant showed Christina his blood soaked underwear. Appellant related that after another gang member sexually assaulted the second girl, he "turned her around" and anally raped her. Appellant also bragged of having forced both girls to engage in oral sex with him…

When Christina asked the group what happened to the girls, appellant told her that they had been killed so that they could not identify their attackers. Appellant then elaborated that it would have been easier with a gun, but because they did not have one at the scene of the incident, he took off one of his shoelaces and strangled at least one of the girls with it. Both Joe and Christina noted that appellant complained of the difficulty group encountered in killing the girls. After appellant related the difficulty he encountered in strangling one of the girls, he said that he put his foot on her throat because she would not die.

He proceeded to confess to his participation in the crimes in a written statement to police. He and four of the five other participants were sentenced to death. José's little brother Venancio, who was 14 at the time, confessed to participating in the rape of one of the girls but not the murder, and received a sentence of 40 years (he has been denied parole five times, most recently last month). Two of the five perpetrators sentenced to death — Raul Villareal and Efrain Perez — saw their sentences commuted in 2005 after the Supreme Court ruled that it was unconstitutional to execute offenders for crimes committed while they were under 18 (Villareal and Perez were both 17). The other three participants — Medellín, Peter Cantu, and Derrick Sean O’Brien — were executed in 2008, 2010, and 2006, respectively.

The Supreme Court did not take up Cantu and O'Brien's cases. But it did take up Medellín's, twice, because his death sentence appeared to run afoul of international law. Medellín was a Mexican citizen, and under the Vienna Convention of 1963, foreign nationals must be informed by authorities arresting them abroad of their right to contact their consulate for support. Medellín was never informed of this right. In 2004, the International Court of Justice — the judicial organ of the United Nations, which arbitrates disputes between countries — ruled, in response to a complaint by Mexico, that the US had violated the Vienna Convention by not informing Medellín and 50 other Mexican nationals on death row of these rights, and ordered US courts to review all 51 convictions and sentences.

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That opened the door for Medellín to launch a new appeal, which Texas (represented by Cruz) rigorously fought. The Bush administration — not especially known for its fondness for the UN and other multilateral institutions — nonetheless took the ICJ's side, telling courts that reconsideration was obligatory given the US's treaty obligations. The case first hit the Supreme Court in 2005, when the justices ruled that Medellín hadn't exhausted his state-level appeals. Once Medellín had exhausted them, the case went back to the Court, with arguments in October 2007.

Cruz's contentions were that:

1. Merely ratifying the Vienna Convention, and its "Optional Protocol" allowing for ICJ jurisdiction over related issues, did not make the ICJ's decisions binding US law. In other words: US courts have no obligation to obey ICJ rulings.
2. Bush's memorandum to courts instructing them to obey the ICJ ruling had no binding authority.

The Court agreed with him on both counts, ruling 6-3 that the ICJ ruling was not binding and Texas could execute Medellín if it so chose. John Paul Stevens — normally a liberal vote — joined with the Court's conservatives in ruling for Texas, and against Bush and the UN.

The decision brought widespread condemnation both from human rights groups like Amnesty International and Human Rights Watch and from veteran diplomats who worried about the precedent it set; Jeffrey Davidow, a former ambassador to Mexico, Zambia, and Venezuela, called Medellín's execution "an irrevocable violation of the most important treaty governing consular assistance for our citizens detained in other countries," a violation that could endanger hundreds or thousands of American citizens in legal jeopardy abroad.

But Cruz seized on the victory. In a 2010 article for the Harvard Journal of Law & Public Policy boisterously titled, "Defending US Sovereignty, Separation of Powers, and Federalism in Medellín v. Texas," he characterizes the issues raised by the case this way: "Are the American people governed by judges, courts, and laws of nations other than our own, or are they governed by the United States Constitution, by the U.S. Congress, the United States government, and ultimately by 'We the People'? It is difficult to imagine a more fundamental question." At points, the grandiose constitutionalist rhetoric reads less like scholarship and more like campaign literature.

And sure enough, the case would become campaign literature. A 2012 TV spot for Cruz's Senate primary campaign touted the Medellín case, with a narrator booming, "When the UN and the World Court overruled a Texas jury's verdict to execute an illegal alien for raping and murdering two teenage girls, Ted Cruz fought all the way to the Supreme Court, and he delivered."

The rest of Cruz's death penalty record

The other three death penalty cases that Cruz argued before the Supreme Court, however, weren't as ready-made for campaign advertising, not least because Cruz lost all three.

Chip Somodevilla/Getty Images

In 2008, Cruz intervened in the case of Kennedy v. Louisiana. Patrick Kennedy was convicted of raping his 8-year-old stepdaughter, and while the Supreme Court had ruled in 1977 that death sentences for raping adults were unconstitutional, it had left vague whether sentences for raping children were.

Cruz filed a brief on behalf of a coalition of nine states — Texas, Alabama, Colorado, Idaho, Mississippi, Missouri, Oklahoma, South Carolina, and Washington — which supported Louisiana, and defended the brief in court, emphasizing the uniquely grave harm rape inflicts upon children. Another amicus brief from a group of nonprofits, including the Louisiana Foundation Against Sexual Assault and the National Alliance to End Sexual Violence, countered that death sentences for child rape increased the odds that child molesters would kill their victims, and deterred victims and their guardians from reporting family members or family friends.

Louisiana, and Cruz, lost 5-4, with the Court ruling that the death penalty was only constitutional as punishment for murder and crimes against the state. Embarrassingly, Cruz and his allies didn't know that the US military had in 2006 adopted the death penalty for child rape, a fact that hurt the Court majority's argument that "evolving standards" about punishment precluded the use of capital punishment in such cases; if standards in the military were evolving the other way, that's quite good evidence in Cruz's favor. But it's evidence Cruz didn't uncover in time, nor did anyone else on the case.

In 2007, Cruz argued before the Court in Panetti v. Quarterman, a case that weighed whether Texas could execute Scott Panetti, a clearly mentally ill man convicted of killing his estranged wife's parents. Panetti, who is schizophrenic, has said that a figure named "Sarge" controlled him during the murders, and claimed that "demons had been laughing at him" after the murders. He represented himself at his first trial, wearing a cartoon cowboy outfit and "summon[ing] the pope, John F. Kennedy and Jesus Christ as witnesses." Panetti's psychiatric evaluation found that while Panetti was clearly delusional about the context of his case, he was aware that he murdered his parents-in-law, aware of his punishment, and aware of why Texas wanted to execute him. Lower courts had ruled this was enough, and that Panetti was sane enough that an execution would not constitute cruel and unusual punishment.

Cruz, defending Panetti's execution, didn't argue on substantive grounds but claimed that Panetti could not validly bring up the issue, as he did not raise mental incompetence–based arguments in his first habeas corpus petition seeking reprieve from execution. The Court ruled against Cruz and Texas, 5-4, noting that Cruz's position has some bizarre implications, such as that a prisoner who becomes insane on death row after filing his first habeas petition cannot seek relief, even though executing him would be clearly unconstitutional under a decades-old Supreme Court decision. Panetti is still fighting his execution in court, most recently getting a stay last December.

Also in 2007, Cruz argued before the Court in Smith v. Texas. LaRoyce Lathair Smith had killed a Taco Bell worker in Dallas in 1991, and received a death sentence. But the jury was not allowed to consider that Smith had an IQ of only 78, and that he was a 19-year-old still in the ninth grade, when it sentenced him. Because of that, the Supreme Court overturned his sentence 7-2 in 2004.

The Texas Court of Criminal Appeals then reimposed the sentence, saying the jury not considering Smith's mental disabilities hadn't caused any "egregious harm" to the fairness of his sentence. By a 5-4 ruling, the Court disagreed with that Court (and with Cruz), rejecting the Texas Court's "egregious harm" standard and overturning his sentence yet again. The next year, prosecutors reached a plea deal with Smith under which he received life in prison instead of death.

The unifying feature of these three cases — other than the fact that Cruz lost them all — is that they concern boundary cases of capital punishment in which even many people who are for the death penalty in general would object to its use. Executing people for non-murder crimes is not a particularly popular policy. Nor is executing paranoid schizophrenics or the mentally disabled. But Cruz defended each of these. Cruz can claim he was merely defending Texas, but that would negate his ability to call upon his solicitor general record as a credential, as a source of personal achievements. Either he owns his entire history before the Supreme Court, or he owns none of it. And owning all of it means defending some fairly unsavory losses.

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