Can Europe End the Death Penalty in America?

By Matt Ford

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.”

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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.

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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.

Initially, individual European countries moved to cut off supply of the drug. British officials at first refused to restrict it, arguing that the anesthetic had legitimate medical uses, until activists provided data showing that Europe’s  customers for the drug included U.S. prisons. Business Secretary Vince Cable then reversed course and imposed an export ban in November 2010, citing Britain’s longstanding support of the death penalty’s worldwide abolition. Hospira, the last U.S. company to market sodium thiopental, stopped production of the drug in January 2011 under intense pressure from authorities in Italy, where their pharmaceutical plant is located. 

As sources began to dry up, some states banded together to find new suppliers. South Dakota and Nebraska approached Kayem Pharmaceuticals in India, which sold each state sodium thiopental before halting U.S. sales in April 2011. In Arkansas, corrections officials obtained sodium thiopental from British distributors and then shared it for free with Mississippi, Oklahoma, and Tennessee. But the states soon ran afoul of federal regulators for violating trade restrictions. The Drug Enforcement Agency seized Georgia’s supply of sodium thiopental in 2011 after records suggested that state officials might have broken the law by purchasing and importing the drug from Dream Pharma, a British distributor operating out of the back of a driving school in London. Kentucky handed over its sodium thiopental to the DEA that same year.

By June 2011, the sodium thiopental supply had run so low that U.S. Secretary of Commerce Gary Locke asked his German counterpart, Economics Minister Philipp Rösler, for assistance in alleviating the shortage. “I noted the request and declined,” Rösler publicly declared, citing his Catholic faith, and then announced plans to forbid German pharmaceutical companies from selling sodium thiopental to the United States. Around the same time, in neighboring Denmark, Lundbeck, the sole pharmaceutical company licensed to manufacture pentobarbital in the United States, announced it would stop selling the medicine, another commonly used execution drug, to U.S. prisons.

Sarah Ludford, a British member of the European Parliament and vice chair of its delegation to the U.S., helped lead the fight for a Europe-wide export ban. "I am proud to have helped lead the campaign to stop EU-produced medicines being hijacked for such appalling uses, in line with the UK and EU commitment to abolish the death penalty around the world," she told me in a statement. "I am determined to continue ensuring that Europe is not complicit in the deaths of American citizens."

Then, in December 2011, the hammer fell. The European Commission, the EU's executive body, expanded its Regulation on Products used for Capital Punishment and Torture to include “products which could be used for the execution of human beings by means of lethal injection,” including “short and intermediate acting barbiturate anaesthetic agents” like pentobarbital and sodium thiopental, among others.

The U.S. government's current position on the export ban or on state efforts to circumvent is unclear. Federal agencies and departments contacted on the matter either did not respond to requests for comment or deferred to the Food and Drug Administration, the federal agency charged with regulating the manufacture, importation, and sale of pharmaceutical drugs in the U.S.

Some have raised concerns about the ways in which the FDA regulates imports of drugs used in lethal injections. A group of inmates recently mounted a successful legal challenge to the FDA's refusal to block sodium thiopental imports to Arizona, California, and Tennessee, arguing that the agency had improperly allowed drugs from unregistered distributors into the United States. In his March 2012 ruling, the federal judge Richard Leon agreed, and castigated FDA regulators for acting "arbitrarily and capriciously" and abusing their discretion by not blocking unregulated sodium thiopental imports themselves.

When asked for its position on the EU export ban and whether the agency had taken steps to alleviate shortages of lethal-injection drugs, an FDA spokesman replied with a statement: "The FDA does not approve drugs for use in lethal injection settings. Our work on drug shortages focuses on ensuring the continued availability of medically necessary drugs. We cannot comment on this issue further."

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Attempts to change the standard lethal-injection protocol have also been foiled by overseas intervention. In May 2012, for instance, Missouri’s Department of Corrections announced that it would institute a single-drug program using propofol. The powerful anesthetic is administered about 50 million times annually in the U.S. and gained notoriety for its role in singer Michael Jackson’s death. But in July 2012, Britain banned exports of propofol to the U.S., and Missouri Governor Jay Nixon ordered the state to stop using propofol after the EU threatened to impose its own export ban on the drug if the state used it to execute an inmate.

Tampering with the three-drug cocktail, as Oklahoma officials did when they swapped sodium thiopental with the sedative pentobarbital, can have dire results for the condemned. Oklahoma inmate Michael Lee Wilson, who was executed using pentobarbital, reportedly told witnesses during his January 10 execution that he could feel his "whole body burning." In February, a federal judge temporarily blocked Missouri from buying pentobarbital from The Apothecary Shoppe, an unregulated compound pharmacy in Tulsa. The pharmacy announced this week that it will not provide the drug to Missouri even if the court order is lifted.

These hurdles have led some states to consider reviving execution methods they had long since discarded. State legislators in Wyoming and Missouri recently proposed adding firing squads as an option when lethal-injection drugs are unavailable. (Utah, the only state that currently allows firing squads for executions, is planning to do away with the approach.) Legislation in Virginia that would have revived the electric chair died in committee earlier this month as state lawmakers debated whether to allow compounding pharmacies to make needed execution drugs. None of these proposals has, so far, become law.

Increased difficulties in carrying out executions aren't the only force behind the death penalty’s decline. This month alone, Washington Governor Jay Inslee imposed a moratorium on his state’s death penalty, calling it “a system that falls short of equal justice under the law,” and the New Hampshire legislature’s abolition bill left committee with the help of past supporters of the death penalty who had changed their minds, reflecting a broader shift in public opinion on the long-debated topic.

Dieter believes the turning point in the death-penalty debate came around the year 2000. “Since then, death sentences have plummeted, executions are down considerably, public support has dropped, and the number of states without the death penalty has grown by 50 percent,” he said. Now, as the European Union considers implementing an even more comprehensive system of export controls for lethal-injection drugs, it seems there is no going back.

This article available online at:

http://www.theatlantic.com/international/archive/2014/02/can-europe-end-the-death-penalty-in-america/283790/