Last night, Texas executed Edgar Tamayo, a Mexican national, after the US Supreme Court denied a stay of execution for the man convicted of killing Guy Gaddis, a Houston police officer, in 1994.
Tamayo’s execution received a wide amount of scrutiny following Ohio’s execution of Dennis McGuire, where an untested drug cocktail used in the lethal injection caused McGuire to demonstrate signs of suffering. Tamayo’s status as foreign citizen also attracted the attention of the Mexican government and the US State Department.
As European Union regulations have restricted access to the three-drug cocktail that was commonly used in lethal injections, states that employ the death penalty have struggled to find alternatives. In Ohio, a federal judge approved the use of midzolam and hydromorphone to be used for an execution for the first time in the US. McGuire took over 20 minutes to die, and witnesses said he was audibly gasping and visibly struggled for air. McGuire’s family has filed a suit against the state, saying that the untested execution method was a violation of McGuire’s Eighth Amendment protection from “cruel and unusual punishment.”
In July 2012, Texas switched to using a one-drug protocol for lethal injections, the anesthetic pentobarbital. After running out of the sedative in fall 2013 due to a manufacturer boycott, the state had pentobarbital made by a compounding pharmacy in suburban Houston.
Compounding pharmacies are not regulated by the FDA, and death row inmates and their lawyers have unsuccessfully tried to make the case that this lack of regulation could be considered carelessness on the state’s part, as it opens the possibility of something like what happened to McGuire in Ohio happening again.
Jason Clark, a spokesman for the Texas Department of Criminal Justice, dismissed those accusations in The Guardian. "The quality and potency of the compounded pentobarbital does not differ from the pentobarbital that is manufactured by a pharmaceutical company," he said.
Apart from the lethal injection itself, there are other reasons that Tamayo’s execution was controversial. The Mexican government argues that Tamayo was not notified of his right to contact the Mexican consulate for diplomatic assistance, which violates the Vienna Convention on Consular Relations.
In 2004, the top judicial body of the United Nations, the International Court of Justice, ordered the United States to review the convictions of Mr. Tamayo and 50 other Mexican nationals whose Vienna Convention rights, it said, were violated and who were sentenced to death in the United States. The international court, also known as the World Court, found that United States courts had to determine in each case whether the violation of consular rights harmed the defendant. In the nine years since the World Court’s decision, no United States court has reviewed the Vienna Convention issues in Mr. Tamayo’s case, said Maurie Levin, one of his lawyers.
Secretary of State John Kerry also urged Texas officials to reconsider, warning in a letter that executing Tamayo could hurt relations between Mexico and the United States, and endanger the rights of Americans abroad. The question wasn’t Tamayo’s guilt, but rather the process by which it was determined, and how that may impact how American prisoners are treated by other countries. “Our consular visits help ensure US citizens detained overseas have access to food and appropriate medical care, if needed, as well as access to legal representation,” wrote Kerry.
But Supreme Court ruled that Texas officials didn’t have to listen to President George W. Bush when he argued that Texas should comply with the international laws in 2008, when it executed another Mexican national, and as Lucy Nashed, a spokeswoman for Texas Gov. Rick Perry, said the state wasn't going to start yesterday.
"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," she told CNN.
Tamayo was the third Mexican national executed since the UN ruled their cases should be reviewed, and the 509th prisoner executed by the state since 1976.