The wisdom and efficacy of using trade sanctions as a means to force policy change in hostile regimes has been a topic of much discussion lately thanks to events in Russia, Syria, and Iran. But last night’s horrifically botched execution of Clayton Lockett in Oklahoma is a reminder that in a sense, the United States is a country under sanctions for its human rights policies.
As the AP noted, part of the reason Oklahoma was using the drug midazolam for the very first time in Lockett's execution was that in recent months, several states have “scrambled to find new sources of execution drugs because drugmakers that oppose capital punishment — many based in Europe — have stopped selling to prisons and corrections departments.” This is at least the third execution in recent months that has taken an unusually long time due to untested drug combinations. Some states are even considering going back to methods such as firing squads and gas chambers.
EU countries may not agree on much, but their governments (if not always their publics) are fully united in their opposition to the death penalty. The European Union’s export controls on goods used for capital punishment dates back to 2005. The current EU guidelines “prohibit the supply to third countries of technical assistance related to goods which have no practical use other than for the purpose of capital punishment or for the purpose of torture and other cruel, inhuman or degrading treatment or punishment.”
These include unambiguous products such as gallows and guillotines, electric chairs, and airtight vaults that could be used as gas chambers. There’s also a list of drugs that companies require permission from government regulators to export.
One of the first targeted was sodium thiopental, a sedative that had been commonly used in the three-drug lethal injection “cocktail.” In 2010 U.S. firm Hospira announced that it was unable to produce the drug at its factory in Italy over due to government demands that it not be used in executions. A Danish-based firm, Lundbeck Inc., has placed strict distribution controls on a another commonly used drug, pentobarbital. Britain has also banned the export of pentobarbital and two other drugs commonly used in executions to the United States.
Most recently, controversy has surrounded propofol, the drug linked to the death of Michael Jackson. Missouri abandoned plans to use the popular anesthetic in an execution last year after the EU threatened to limit its export. The largest supplier of the drug to the U.S. is a German firm.
The export controls have certainly had an effect on how the U.S. conducts capital punishment, forcing states to improvise new drug cocktails of dangerously varying effectiveness. But how effective have they been toward their intended goal, the abolition of the death penalty in the United States?
I asked Maya Foa, director of the death penalty team at the U.K.-based charity Reprieve—a leading proponent of the export controls—what she sees as the most significant effect of the export controls so far. She pointed to the increasing role of drug companies in controlling how their products are used.
“Fundamentally, manufacturers don’t want to be involved in executions. If you look at what happened last night, that is really bad business for them,” she said. “It’s not only export controls from Europe. They’ve also put distribution controls on the ground to try to prevent this from happening.”
The United States still executes more people than any other democracy, though the number of executions carried out per year has generally been declining since 1999 and while a majority of Americans still support the practice, that support is at its lowest since the Supreme Court reinstated capital punishment in 1976.
In some sense, it’s a cruel irony that the export restrictions, put in place to prevent cruel and unusual punishment have led in several recent cases to executions becoming more cruel as states try out untested cocktails. But incidents like these could also lead to more scrutiny of often opaque death penalty practices.
Foa told Slate that she hopes a thorough investigation will be conducted and that “I think that this will show the courts that you cannot just take the Department of Corrections' word that they’re going to do this safely.”
The U.S. still seems unlikely to join Europe and most of the Western Hemisphere in renouncing the death penalty any time soon. But the trend is definitely toward making it rarer, strangely at a time when it seems to be becoming more common in a number of other large democracies.
The EU measures, which in addition to making executions more difficult to carry out in the United States are forcing courts and the public to confront the grim mechanics of how they are performed, certainly seem to be hastening the process.