Thirty-two states retain the death penalty in the U.S., but a new obstacle is making it increasingly difficult for them to carry it out. Pharmaceutical companies are taking a moral stand. The manufacturers of the drugs required by state departments of corrections for executions are saying they will not allow their products to be employed in this way. Manufacturers in the UK, US, Denmark, Israel, Switzerland, Germany, Austria, and India have taken steps to prevent their drugs being used in executions.
This has had an astonishing effect. Shortages of lethal injection drugs and attendant litigation have resulted in moratoria—an official halting of executions—in Arkansas, California, Kentucky, Louisiana, Maryland, Missouri, Montana, Nebraska, North Carolina, Oregon, and Tennessee. Historically, state entities do not move directly from having the death penalty to abolition. They begin with a moratorium on killing and then, when the population has grown unused to executions, the death penalty can be abolished. Of the states mentioned above, Maryland abolished the death penalty this year and abolition bills have been put forward in Nebraska, Colorado, and California. California came very close to passing its abolition bill—voting against by 52 to 48. Meanwhile, the media coverage of the issue has exposed the unsavoury details of the execution process and created opportunities for serious debate about abolition.
As the Executive Director of a legal action charity that handles a number of death penalty cases, I speak to colleagues in the U.S. who say that their client has an excellent innocence claim or an excellent police corruption claim, but what is saving the client's life is drug shortages or litigation over execution drugs. Here, I think, is why this initiative is so beautifully effective. The pharma companies are maintaining an intellectually coherent position: they manufacture medicines which they sell to doctors and health practitioners. Their raison d'être is the saving of lives. They absolutely should take this stance on their product being used by the State to kill people, and they have.
Last week, the governor of Missouri, not a liberal at all when it comes to the death penalty, said: "As Governor, my interest is in making sure justice is served and public health is protected. That is why, in light of the issues that have been raised surrounding the use of propofol in executions, I have directed the Department of Corrections that the execution of Allen Nicklasson, as set for October 23, will not proceed. I have further directed the Department to modify the State of Missouri's Execution Protocol to include a different form of lethal injection."
This means that executions in Missouri will be halted until an alternative method can be found—and each proposed alternative method will be litigated to see whether or not it meets humane requirements. In California, the Chief Justice of the California Supreme Court has publicly stated that she predicts it will be three or more years before the state is in a position to carry out any executions due to lethal injection issues. Granting Nathan Dunlap a reprieve in Colorado, state governor John Hickenlooper agreed with Justice Harry Blackmun that "the death penalty experiment has failed", concluding: "Recent restrictions imposed by pharmaceutical companies and the Food and Drug Administration make procuring these drugs challenging. We must ensure that individuals facing the death penalty are afforded certain guaranteed rights of due process before a state proceeds with an execution."
Texas and Ohio are also currently having trouble sourcing execution drug supplies. Their solution? Currently, they are turning to compounding pharmacies to get their drug supplies—effectively they are asking a local pharmacy to knock up some makeshift drugs so that the local prison can kill someone. This is clearly inappropriate, but if there were any doubt about that one has only to look at some of the results: one warden is asking that the prescriptions be filled in his name—and he will then use the drugs on his prisoners. Another is using as the authorising medical authority a local hospital which has been closed for 20 years. And, as per my opening shot, Ohio has stated that pharmacists can fill prescriptions based on an execution warrant. At least some compounding pharmacies have said that they don’t want anything to do with the death penalty - one Texan pharmacy refused to fill an order for compounded pentobarbital when it found out the drugs were for executions, and another requested that its drugs be returned when it found out the purpose for which the drugs had been ordered.
Is there, then, a danger that states will go back to more brutal methods of execution? To hanging, the gas chamber, the firing squad, or even the electric chair? First, any such suggestion would open excellent litigation challenge opportunities. And more interestingly, executing states have invested a lot of time and energy in persuading the world that death by lethal injection is humane. In the face of that, it would be difficult to introduce an obviously barbaric alternative—should we expect a return of that most efficient engine of destruction, the guillotine? Will the heads of murderers fall into a basket whose specification the Texas legislature will have to decide? Will basket-weavers have to require end-user licences if they dissent from the death penalty? I think that even the most bloodthirsty states might have a job getting that onto the books. (Just on the humane-ness of lethal injection—because I cannot let it pass unsaid—there are so many examples of botched executions and improperly administered drugs that the process is nowhere near humane much of the time, even if you believe—as I do not—that there is a priori any means of humane execution.)
The execution drug project began at the end of 2010, when it became apparent that a UK company, Dream Pharma (housed behind a driving school in Acton) was manufacturing and supplying execution drugs to death rows in the U.S.. Now, in less than three years, the industry has taken significant, concrete, and effective action and poses the largest threat to execution within the U.S.. It is not often that pharmaceutical companies are celebrated for their good deeds in the world, for straight up moral choices, but now is one of those times—please be upstanding, and raise your coffee in the general direction of Lundbeck, Fresenius Kabi, Hospira, Teva, Naari and many more. ... Thank you.
Clare Algar is executive director of the charity Reprieve, which has been working with pharmaceutical companies on strategies to prevent their medicines being supplied to execution chambers.