When Texas executed Edgar Arias Tomayo on Thursday, he became the third Mexican national to receive the death penalty in that state since 2008. And if it takes three events to establish a trend, then the trend is set: Every few years, Texas begins the process to execute a Mexican convict on death row. Next, the Mexican government and U.S. State Department object. Then Texas shrugs and goes ahead.
Tomayo and the two previously executed Mexican nationals are not sympathetic characters. Tomayo was convicted of shooting a Houston police officer three times in the back of the head in 1994; José Medellin and Humberto Leal Garcia were both convicted on rape and murder charges. Their guilt is not the State Department and Mexican government's issue with the cases.
Rather, the concern is that Medellin, Leal Garcia, and Tomayo were not notified of their right to legal assistance from the Mexican consulate upon their arrest. That's a violation of Article 36 of the Vienna Convention on Consular Relations, which states that foreign nationals have a right to contact and consult with consular officials from their countries upon their arrest. Not only does the United States have an obligation, by law, to inform arrested foreign nationals of their rights, the State Department argues, but adhering to that law is important to make sure that Americans abroad are afforded the same protections.
The lack of notification is an issue that has long bothered the Mexican government -- so much that in 2003 it filed charges against the United States at the International Court of Justice that named 51 Mexican nationals facing the death penalty in the United States who were allegedly not informed of their right to consular assistance. Medellin, Leal Garcia, and Tomayo were all listed in the Mexican government's filing. The ICJ ruled in the Avena and other Mexican Nationals (Mexico v. Unites States) decision that the United States had in fact violated its treaty obligations and failed to inform arrested Mexican nationals of their rights, and in 2005 President George W. Bush instructed then-newly appointed Attorney General Alberto Gonzales to undertake a review of the cases.
"Some states have dealt with Avena defendants in a manner consistent with both the ICJ's judgment and their own judicial and legal processes," a State Department spokesperson told Foreign Policy. "To date, Texas has been the only state to execute Mexican nationals subject to Avena."
Texas has been defying Washington on the execution of Avena defendants since 2008. The Bush administration and the Mexican government pressured Texas to review all of those cases a second time while the Supreme Court reviewed the legality of Avena executions. The high court eventually ruled that the executive branch didn't have the power to prevent Texas or another state from executing the Mexican nationals named in the ICJ case. In an ironic twist, Bush, a former governor of Texas, found himself pressuring his former colleagues in Austin to change course -- and failing.
The ruling left it up to Texas to help the federal government uphold its international obligations. "One consequence of our form of government is that sometimes States must shoulder the primary responsibility for protecting the honor and integrity of the Nation," Justice John Paul Stevens wrote in his concurrence. "Texas's duty in this respect is all the greater since it was Texas that -- by failing to provide consular notice in accordance with the Vienna Convention -- ensnared the United States in the current controversy.... When the honor of the Nation is balanced against the modest cost of compliance, Texas would do well to recognize that more is at stake than whether judgments of the ICJ, and the principled admonitions of the President of the United States, trump state procedural rules."
Texas officials immediately made clear that they couldn't care less what Stevens or his colleagues thought. "This ruling doesn't change anything," Allison Castle, a spokesperson for Gov. Rick Perry, told the New York Times. "We really don't care where you are from; you can't do that to our citizens." The state proceeded with the execution of Medellin in 2008, and then in 2011, repeated the same tug-of-war with Washington and the Mexican government when it proceeded to execute Leal Garcia.
The grim ritual has played out again over the last several months. In September, Secretary of State John Kerry sent a letter to Gov. Perry expressing deep concerns about Tamayo's planned execution. "I want to be clear," he wrote. "I have no reason to doubt the facts of Mr. Tamayo's conviction, and as a former prosecutor, I have no sympathy for anyone who would murder a police officer.... This is a process issue I am raising because it could impact the way American citizens are treated in other countries." A State Department spokesperson told FP that State Department and Justice Department officials also met with the Texas Office of the Attorney General and wrote to the Texas Board of Pardons and Paroles on Tamayo's behalf.
As in 2008 and 2011, the State Department voiced concerns that Texas's eagerness to execute a Mexican national would undermine its international treaty obligations and the safety of Americans abroad. "The United States' compliance with our international obligations under [the ICJ decision] is critical to our ability to ensure consular access and assistance for our own citizens who are arrested or detained by foreign governments," State Department spokesperson Marie Harf said in a statement yesterday.
And once again, Texas proceeded with the execution. "It doesn't matter where you're from.... If you commit a despicable crime like this in Texas, you are subject to our state laws, including a fair trial by jury and the ultimate penalty," Lucy Nashed, a spokesperson for Gov. Perry, told the Associated Press, echoing the governor's office statement in 2008.
Ramiro Hernandez Llanas, the next Mexican national cited in Avena, is scheduled to be put to death on April 9th.