When the European Union expanded Regulation 1236/2005 in December 2011, its regulators could hardly have known that it would lead, in part, to the excruciating scene of a failed 43-minute execution in McAlester, Oklahoma.
The EU decision expanded an existing ban on the trade of instruments used for torture to include those drugs specifically used by US state correctional facilities to execute prisoners by means of legal injection. It codified at the EU supranational level what had already become a growing practice at the national level in Europe, including in the United Kingdom, arguably the closest international US ally.
it served a laudable goal from the European perspective — making it more difficult for state governments in the United States to import the necessary drugs in the traditional three-drug cocktail used by most states for nearly four decades to execute inmates by lethal injection.
What’s more, that decision is the latest example of how the European Union’s policies are increasingly affecting the United States — from antitrust law to data privacy to trade harmonization, European regulatory standards will continue to shape US policies and outcomes in new and, for some Americans, often frustrating ways.
As a matter of human rights, both the Charter of Fundamental Rights of the European Union and the European Convention on Human Rights denounce and ban the death penalty within the European Union. But the death penalty’s abolition goes beyond the immediate boundaries of the European Union — it’s banned almost universally across Europe, with the single exception of Belarus. Even Russia, which isn’t exactly the best-practices touchstone for human rights, has implemented a moratorium. Russia’s last execution took place in 1996. France’s last execution (yes, by guillotine) took place in 1977. Italy’s last execution (by firing squad) took place in 1949. The last UK execution (by hanging) took place in 1964. The entire era of executions by ‘lethal injection,’ which largely followed the US Supreme Court’s four-year moratorium* on capital punishment over concerns that executions violate the eighth amendment ban on ‘cruel and unusual punishment,’ comes largely after Europe abolished the death penalty. By the time that lethal injections became the standard practice for executions, Europe was largely out of the execution business.
Since 1977, execution by lethal injection in the United States has involved the use of three drugs:
- sodium thiopental, an anesthetic that is used to render the convicted person unconscious;
- pancuronium bromide, which is used to paralyze the subject and stop breathing, in part for the benefit of the audience observing the execution, because it provides the appearance that the victim isn’t suffering; and
- potassium chloride, which stops the heart and, in theory, rapidly leads to death.
Ironically, the two most potent drugs are widely available. It’s sodium thiopental that’s become so difficult for state governments to obtain under the new EU regulations. With sources of sodium thiopental becoming increasingly scarce, correctional facilities are turning to some fairly desperate measures to avoid disruption of their regularly scheduled executions. In some cases, that’s meant sourcing drugs through illegal channels, and in other cases, that’s meant that states, like Oklahoma, have experimented with new combinations of drugs. When Missouri contemplated using propofol instead, European countries started talking about banning that drug’s export, too, which led to a deluge of concern among US health professionals that they would lose access to one of the most important anesthetics in medical use today. Missouri’s governor Jay Nixon quickly moved away from the idea.
As Matt Ford reported for The Atlantic earlier this year, EU efforts won’t necessarily end the death penalty in the United States, but they are certainly complicating its efficacy:
“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.”
That’s left the United States where it is today. States like Oklahoma, determined to move forward with executions, are left with few good options. Experimenting with new drugs will invariably lead to more botched executions like Tuesday night’s execution of Clayton Derrell Lockett (though it’s worth noting that lethal injections, and all executions, are potentially imperfect from an Eighth Amendment perspective — Ohio learned this in 2009 with the failed execution of Romell Broom).
But the EU decision has also led to more astonishing measures. Oklahoma has taken extraordinary steps to keep secret the contents of its new experimental execution cocktail — if EU member-states discover which drug Oklahoma is using, they could easily ban that drug as well. Notwithstanding the fears that the drugs might cause the kind of 43-minute, tortured death that Lockett actually suffered last night, Oklahoma governor Mary Fallin (pictured above) brought the state to the brink of political crisis over the Oklahoma Supreme Court’s decision to stay the execution earlier this month. Only after some of Fallin’s Republican colleagues in the Oklahoma legislature threatened to impeach the justices did they relent.
Whatever you think of the death penalty and its continued use in the United States, it’s difficult to believe that it’s worth undermining the judiciary’s independence on a matter of life-and-death constitutional rights or that it’s worth turning the penultimate expression of law and order, an irreversible deterrent, into a tortured science experiment.
It’s even harder to believe that in a 21st century liberal democracy with strong freedom-of-information traditions, a state government can legally keep secret the means of executing its own citizens.
If former Illinois Republican governor George Ryan, who placed a moratorium on Illinois’s death penalty in 1999, represents the sober view that the capital punishment is simply too flawed to be effective, Fallin will now become the symbol of the opposite — denying the basics of due process or constitutional rights all in the service of tinkering with the machinery of death, as the late Supreme Court justice Harry Blackmun wrote in a scathing 1994 denunciation of capital punishment.
Though it may be anathema to Americans, especially American conservatives, the European Union holds significant regulatory power over US actions — and not just on the death penalty.
In 2001, Mario Monti, then the European commissioner for competition law, blocked a merger between General Electric and Honeywell, delivering to CEO Jack Welch, generally revered in the United States at the time as a model executive, one of the most humiliating setbacks of his business career.
When the new European Parliament convenes later this year after elections on May 22-25, it will almost certainly take up a new data privacy directive that will tighten regulatory standards following the disclosure of widespread surveillance by the US National Security Agency of private-sector platforms like Google and Facebook. The latter stores many of its servers in northern Sweden, giving EU regulators a jurisdictional hook to limit US surveillance creep.
More fundamentally, justices of the US Supreme Court, including Anthony Kennedy, are increasingly looking to European and other international standards as the lodestar for the international standards of human rights. In his 2003 opinion in Lawrence v. Texas, which struck down anti-sodomy laws in the United States as unconstitutional, Kennedy cited the example of the European Court of Human Rights on the matter. Even more recently, Kennedy cited EU practice in the Court’s 2005 Roper v. Simmons decision that banned the death penalty for crimes committed under the age of 18. Retired justice John Paul Stevens did the same in the 2002 Atkins v. Virginia, which prohibits capital punishment for ‘mentally retarded’ convicts.
Moreover, if the United States and the European Union negotiate and agree to the wide-ranging free trade agreement contemplated by the Transatlantic Trade and Investment Partnership, it could result in even greater regulatory convergence on everything from automotive standards to environmental and consumer protections.
It’s fashionable to dismiss the European Union’s role in setting global policy — it has a weak military footprint compared to the United States, China or even Russia, and its eurozone crisis shows just how much work that the European Central Bank and the European Commission have to convince the world that the single currency can be a stable instrument of a politically, fiscally and monetarily integrated Europe. Like it or not, though, European regulatory muscle is already effecting US policy decisions — and that’s a trend that will only continue in the years ahead.
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* In the 1972 ruling of Furman v. Georgia, the Court found that, as practiced in the United States, the death penalty was ‘so wantonly and so freakishly imposed’ that it violated the Eighth Amendment prohibition on cruel and unusual punishment. Four years later, the Supreme Court effectively lifted the moratorium in Gregg v. Georgia, ending the era of mandatory death penalties, introducing more robust legal appeals for death-row inmates and ushering in the era of execution by lethal injection.
In addition to the fears that a government might inadvertently execute an innocent person, the death penalty reflects significant racial bias — a 1987 challenge to the death penalty in McCleskey v. Kemp failed on grounds of equal protection, but brought to light the incredible racial disparities in the use of the death penalty — not only were African-Americans sentenced to death in the United States at higher rates than white Americans, but the death penalty (according to the 1987 study at issue in McCleskey) was sentenced 4.3 times more often when the victim was white than when the victim was African-American.
When you get into the grim details of what constitutes ‘cruel and unusual,’ it’s not so difficult to understand why so many countries in the world, including virtually all of Europe, Canada, Australia and Latin America have decided to get out of the ghastly business of capital punishment altogether.