Can Europe End the Death Penalty in America?

An EU export ban on lethal-injection drugs is making U.S. executions more difficult to perform.
The lethal injection chamber at California's San Quentin State Prison. (Wikimedia Commons)

On January 19, Dennis McGuire died gasping and choking during a lethal injection administered by the Ohio Department of Rehabilitation and Correction. “Over those 11 minutes or more he was fighting for breath, and I could see both of his fists were clenched the entire time,” wrote Father Lawrence Hummer, the Catholic priest who gave McGuire his last rites and witnessed the execution. “There is no question in my mind that Dennis McGuire suffered greatly over many minutes.”

Ohio corrections officials had used an experimental two-drug cocktail of midazolam, a sedative and anesthetic, and hydromorphone, a painkiller and morphine derivative, to execute McGuire. Three weeks later, on February 7, Ohio Governor John Kasich delayed the state's next scheduled execution, of the convicted murderer Gregory Lott, until November while the state reviews McGuire’s execution and determines what to do next.

Why did Ohio, which has used lethal injection since it resumed executions in 1999, suddenly try an unproven chemical mixture on McGuire? The answer lies in a growing shortage of standard lethal-injection drugs brought about primarily by a 2011 export ban by the European Union, the effects of which are starting to be felt in death-row chambers across America. The ban severed U.S. prisons from the last large-scale manufacturers of sodium thiopental, a key anesthetic in lethal injections. In recent years, some smaller drugmakers elsewhere in the world have also declined to sell sodium thiopental and other lethal-injection drugs to U.S. states, citing activist pressure, the fear of lawsuits, and their ethical obligations.

“The EU embargo has slowed down, but not stopped executions,” Richard Dieter, executive director of the Death Penalty Information Center in Washington, D.C, told me. “It has made the states seem somewhat desperate and not in control, putting the death penalty in a negative light, with an uncertain future.”

***

Lethal injection is by far the predominant method of execution in the United States. Before the drug shortage, virtually every lethal-injection protocol used the same three-drug method. A first drug, sodium thiopental, anesthetized the prisoner. Then a second drug, pancuronium bromide, paralyzed the inmate and halted his or her breathing. Finally, an injection of potassium chloride stopped the heart. Jay Chapman, an Oklahoma medical examiner with little pharmacology experience, first proposed the three-drug protocol in 1977. Asked about his qualifications by a New York Times reporter 30 years later, Chapman described himself as “an expert in matters after death but not in getting people that way.”

Texas became the first state to use lethal injection when it executed Charles Brooks, Jr. on December 7, 1982. Since then, U.S. states have executed over 1,000 death-row inmates by lethal injection. By the time the three-drug cocktail's constitutionality came before the U.S. Supreme Court in 2008 in Baze v. Rees, lethal injection had become the preferred method of execution for 36 states and the federal government. Thirty of those states used Chapman’s method. The U.S. Supreme Court upheld the three-drug protocol in a 7-2 decision.

The European Union, for its part, makes no secret of its death-penalty stance. EU guidelines call for its “universal abolition” and declare that doing so would “[contribute] to the enhancement of human dignity and the progressive development of human rights.” EU diplomats and leaders frequently petition U.S. governors and state parole boards to halt forthcoming executions. Sometimes, the supranational organization even works in more subtle ways: EU agencies contributed over $4.8 million in donations to U.S. anti-death-penalty organizations between 2009 and 2013.

The EU’s influence extends to the U.S. Supreme Court, where justices have drawn upon the organization's amicus curiae briefs from time to time in death penalty cases. Justice John Paul Stevens’ majority opinion in 2002’s Atkins v. Virginia cited the EU’s brief on worldwide opposition to executing the mentally disabled as a factor in the Court's decision to forbid the practice in the United States. During oral arguments for Roper v. Simmons in 2005, Justice Anthony Kennedy pondered whether European views should be considered when assessing the “unusual” aspect of the Eighth Amendment’s prohibition of “cruel or unusual punishment.” The EU had already told the Court in an amicus brief that imposing the death penalty on persons who were minors at the time of the crime “violates widely accepted human rights norms and the minimum standards of human rights set forth by the United Nations.”

Writing for the Court’s majority in Roper, Kennedy agreed with the EU’s assessment and wrote that world opinion, “while not controlling our outcome, does provide respected and significant confirmation for our own conclusions.” Not all of the justices were as appreciative. “Though the views of our own citizens are essentially irrelevant to the Court’s decision today,” said Justice Antonin Scalia in his Roper dissent, “the views of other countries and the so-called international community take center stage.”

“I think the constant reminder that our closest allies are opposed on fundamental human-rights grounds to the death penalty goes a long way in our gradual re-evaluation of this issue,” Dieter told me. And that moral and ethical case, enforced by export bans on the materials necessary to perform lethal injections, is changing how America executes the men and women it sentences to death.

***

Of the three drugs used in standard lethal injections, potassium chloride and pancuronium bromide are widely available. But sodium thiopental has been superseded by newer anesthetics. Few U.S. hospitals, if any, still use it, and even fewer manufacturers produce it worldwide. Most importantly, sodium thiopental only has a shelf life of about four years, making stockpiling the drug difficult given the lengthy and arduous appeals process for death-penalty cases. As a result of this vulnerable supply line, sodium thiopental has become a pressure point for activists in the U.S. and Europe.

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Matt Ford is an associate editor at The Atlantic, where he oversees the National Channel and works on social media.

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