It’s a dangerous time to be on death row in the United States. Across Europe, capital punishment is outlawed, and the European Union has taken steps to prevent EU-produced drugs being sold to US state governments for executions with their 2011 ‘Torture Regulation’. Even in the US, drug companies don’t want their drugs to be used in executions – consumers aren’t going to buy a drug famed for its ability to kill people.
This lethal combination of commercial and governmental bans has finally begun to achieve its aim – states are running out of drugs with which to perform their executions. A desperate Texas has been accused of falsifying prescriptions to get hold of the drugs it needs. Bearing this in mind, does this mean the EU is achieving its aim: the US outlawing the death penalty?
Commonly, a three drug combination is used in executions. The first will make the convict unconscious, the second will paralyse, and the third will stop the heart. This three-drug approach ensures that the execution is humane – the convict is unconscious and paralysed before he is quickly killed – but states are running out of the first, the anaesthetic, and rather than giving up, are looking to alternative drug combinations – combinations that could result in the painful death of a conscious but paralysed victim.
States are playing chicken: nobody wants to be the first to try, and fail, with a new set of drugs.
If the method of execution causes the convict pain, it will breach the 8th Amendment’s prohibition of “cruel and unusual punishment”, and the method can be outlawed by a federal court. Last week, Ohio delayed an execution because the convict agreed to donate organs to his family – a probably cop-out, he was to be executed with a new two-drug mixture.
Meanwhile, a white supremacist serial killer left Missouri in an awkward position. The governor could either execute him with a new, single drug, or give him clemency – a political nightmare, given his crimes. They chose the former.
A legal battle ensued, but the 8th Circuit Court of Appeals overturned a stay, noting a lack of evidence that the new method was painful, and the Supreme Court rejected his appeal. Six hours later than planned, he was executed.
The European Union think their measures will halt capital punishment, but for the time being all they’re doing is forcing politically-stubborn states to try an array of potentially excruciating new methods of execution.