Will the EU Kill America’s Death Penalty?

When you think about reasons to abolish the death penalty, you might think of the ethical implications behind it, questions of innocence, or the inconsistency with which it’s applied. But lately, very practical considerations have slowed the pace of executions in America, leaving states to wonder if it’s even worth the trouble.

Beyond the higher costs associated with prisoners on death row, the pharmaceutical companies that have made the drugs used for lethal injections are increasingly leery of letting their products be used for executions. Laws in the European Union are a big reason why.

In January 2011, the American drug company Hospira announced that, since they couldn’t be sure that sodium thiopental wouldn’t be used in lethal injections, they would stop manufacturing it all together. At the time, sodium thiopental, which served to kill the pain, was used as part of a three-drug lethal injection cocktail in all but two states with the death penalty. Pancurium bromide paralyzed the inmate. Potassium chloride stopped the heart.

Citing the company’s goals “to enhance and save the lives of the patients we serve,” Hospira said on its website that, “we have always publicly objected to the use of any of our products in capital punishment,” and shut down the direct sale of drugs the manufacurer learned might be added to future lethal injection protocols to prison hospitals.

Without ruling out a change of heart in leadership at Hospira, who for their part said they never intended for their products to be used like that, one reason for this crackdown was that sodium thiopental manufacturing was moving from North Carolina to Italy, where it would fall under the jurisdiction of the EU’s “Torture Regulation”.

The law “establishes specific trade arrangements covering certain types of equipment and products,” which could be used for torture, capital punishment, “and other cruel, inhuman or degrading treatment or punishment in non-European Union (EU) countries.”

To import sodium thiopental, Hospira would have to prove that it wouldn’t be used in capital punishment, which the company didn’t think was possible. "We couldn't meet the Italian demands, and we were concerned if we couldn't our Italian facility and employees could face liability," Dan Rosenberg, a Hospira spokesman, told the Washington Post.

As sodium thiopental supplies have expired or run out, states with the death penalty are struggling to find approved alternatives. As a result, the New Republic reports that there are moratoria on executions in Arkansas, California, Kentucky, Louisiana, Maryland, Missouri, Montana, Nebraska, North Carolina, Oregon, and Tennessee.

Missouri was planning on using the anesthetic propofol for a lethal injection for the first time, until the drug’s German maker, Fresenius Kabi, objected, claimed that doing so would lead to a disruption of the drug’s export to the United States. Propofol has long been the most popular anesthetic drug in the United States, with some 50 million doses administered in the country's hospitals and other medical facilities every yea. Ninety percent of the propofol supplied to America is manufactured in the EU.

The medical community, understandably, didn’t want to see propofol disrupted.  Take the Missouri Society of Anesthesiologists, which wrote:

As physicians, anesthesiologists rely on propofol to manage vital life functions in over 95 percent of the surgeries we perform. If Missouri uses this anesthetic in a single lethal injection, over 15,000 hospitals, clinics, and health care facilities across the country are in risk of losing their supply of propofol in the operating room.

The MSA framed the issue not as a debate about the death penalty, but rather as a question of public health, which Nixon cited while announcing that propofol would not be used.

So states are looking for alternatives. Texas, Ohio, Pennsylvania, and South Dakota now rely on compounding pharmacies for execution drugs. Georgia and Colorado have indicated their intent to do so in the future.

Compounding pharmacies, which usually mix up drugs for individual patients upon doctor’s orders, bypass not only the EU regulations, but also the FDA’s, which some have said leads to potential for abuse.

I spoke with Richard Dieter of the Death Penalty Information Center to ask why compounding pharmacies are a cause for concern, and he named the lack of regulation and reliability without hesitation.

“That was underlined last year when a compounding pharmacy provided steroids that resulted in the deaths of about 60 people,” Dieter said. “Contamination is the issue. Is it possible that these drugs are prepared under less scrutiny than is needed?”

Normally drugs ordered from compounding pharmacies are taken under a doctor’s ongoing supervision. But in correctional facilities, those handling the drug might not have the training to recognize when it isn’t working properly.

There’s an old joke that asks why they sterilize the needle on lethal injections, and questions about contamination of lethal injection might invite more of the same. But Dieter pointed out that knowing the potency of drugs is crucial for determining whether the punishment crosses the line, becoming “cruel and unusual” and therefore illegal. If a drug is supposed to produce unconsciousness or lead to death, but is prepared improperly and is only 75 percent potent, it could lead to “an incomplete unconsciousness or slow death” or other complications.

“The argument would be that it’s cruel to subject somebody to something where the results are uncertain—whether it’s a drug that hasn’t been used before, or its come from a company that hasn’t been inspected or approved,” Dieter said. “It could be put down as carelessness by the state, or providing poor care in prisons or mental hospitals. It’s a cruel way to treat people. Yes, they can be executed but they can’t be executed any way you want.”

Dieter doesn’t think this is the end of the death penalty in America, but it could function as a sort of catalyst in some states that are already “on the fence” about capital punishment. “It’s always more complicated than just the drugs. If a state is totally committed to the death penalty they’ll find a way,” Dieter said. “If they’re on the fence anyhow, this might just be a reason to get out of the whole process.”

If nothing else, questions about lethal injection are halting executions for the time being. In Georgia, death row inmate Warren Lee Hill is challenging the right of the state to withhold details about the compounding pharmacies, which has delayed Hill’s own execution.

The most recent state to ban the death penalty was Maryland, in May 2013. “It wasn’t just because of lethal injection by any means, but they’ve had a hold on execution because of lethal injection problems,” Dieter said. “There were lots of reasons but lethal injection caused no execution for about six years in Maryland.”

Missouri’s governor noted that ultimately the American courts will determine whether or not we have the death penalty, not laws in Europe. However, those American courts may say that under European export laws, there is no constitutional way to keep the death penalty around.

“The drug shortage and what caused it and what perpetuates it and what results from it has nothing to do with the execution process in this country,” Deborah Denno, a capital-punishment expert who opposes the death penalty, told the National Journal. “Nonetheless, it may be the factor that ends up finally abolishing the death penalty. And it's an irony because it's nothing any death-penalty litigator could have hoped for.

It's also evidence that globalization doesn't mean always diving for the lowest common denominator. If you legislate to certain standards, rogue states can fall into line. Even the US.