By Brian Evans
Among the countries of the economically developed world, the United States is something of an outlier when it comes to capital punishment – in that it still uses it. Japan does too, and other economically advanced East Asian countries like Taiwan and South Korea also retain capital punishment though executions are exceedingly rare. But Australia and New Zealand, all European Union countries, and for that matter almost all of South America, are completely abolitionist.
In our globalized economy and our increasingly interconnected and interdependent world, being an outlier is not easy. The frustrations of some Supreme Court justices at the April 29, 2015, oral arguments in the case of Glossip v Gross are a good example. Justices Alito and Scalia in particular pushed aside legal questions about whether the drug midazolam is effective enough to prevent a lethal injection from becoming an excessively painful “cruel and unusual punishment,” and instead railed against “abolitionists” for making it difficult for U.S. states to carry out lethal injections.
“[I]s it appropriate,” Justice Alito asked, “for the judiciary to countenance what amounts to a guerrilla war against the death penalty, which consists of efforts to make it impossible for the states to obtain drugs that could be used to carry out capital punishment with little, if any, pain?”
States are resorting to the less effective midazolam, Justice Scalia added, “because the abolitionists have rendered it impossible to get the 100 percent-sure drugs.”
It is unclear who “the abolitionists” are. There are many people who oppose capital punishment, from small grassroots groups meeting in church basements, to the Catholic Church itself. The powers that are causing lethal injection the most trouble are not activist groups, but European governments, medical associations, and transnational pharmaceutical companies.
The focus of these Supreme Court justices on vaguely defined “abolitionists” also ignores the dominant role medical ethics has played in the slow but accelerating decline of lethal injection.
“First do no harm” is not an abolitionist invention but a centuries old cornerstone of the medical profession and the foundation of the trust it engenders with the public. Opposition to medical participation in executions on the basis of this ethic is deep and long-standing, as helping put prisoners to death is at fundamental odds with health care’s purpose of preserving and improving life. Medicalizing executions created a conflict that was slow in coming, but in hindsight seems pretty inevitable.
As early as the 19th century, a New York commission’s plan to replace hanging with lethal injection was rejected by doctors who “were afraid the public would associate death with the hypodermic needle and medical practice.”
It is not surprising that lethal injection was first used in the 20th century in a place where medical ethics were non-existent – Nazi Germany. There, beginning in 1939, a form of lethal injection was used to kill children as part of the Action T4 program of “forced euthanasia.”
Its Nazi provenance notwithstanding, after World War II the United Kingdom considered adopting lethal injection for its executions. In 1949, a Royal Commission on Capital Punishment was created to “look for means of confining the scope of punishment as narrowly as is possible without impairing the efficacy attributed to it;” this included identifying the best form of execution “using humanity, certainty and decency as yardsticks.”
In 1950, the British Medical Association (BMA) reluctantly consented to offer its opinion on the various execution methods under consideration, reminding the Commission that: “As an organization of persons whose function is to preserve life, the Association … finds a discussion of methods of taking human life particularly distasteful.” The BMA also stated that “it will oppose any method that would require the participation of a medical practitioner or, alternatively, that would require a physician’s participation in training another to perform this task.”
The Royal Commission cited this opposition in its rejection of lethal injection as a form of execution in Great Britain.
In 1977, lawmakers in Oklahoma tried to get their state’s medical association to offer similar consultation on the possibility of using lethal injection, but the Oklahoma Medical Association flatly refused to help, citing the ethical conflict. It was left to a single doctor, Jay Chapman, the state’s chief medical examiner, to devise a lethal injection protocol that would ultimately be adopted by all the executing states.
The larger medical establishment in the U.S. was not pleased. In 1980 an article in the New England Journal of Medicine declared the emerging lethal injection laws to be: “a corruption and exploitation of the healing profession’s role in society.”
Later in 1980 the American Medical Association (AMA) issued its Opinion 2.06, later updated in 1994, 1996, 1999, and the year 2000. It states clearly: “A physician, as a member of a profession dedicated to preserving life when there is hope of doing so, should not be a participant in a legally authorized execution.”
In 1981 the World Medical Association echoed the AMA, and in 1983 the American Nurses Association did likewise.
The first U.S. lethal injection was carried out in Texas on December 7, 1982. By 1985, another medically based objection had emerged. A legal challenge to the use of pharmaceuticals for a non-intended purpose (causing death) found its way to the Supreme Court. In Heckler v. Chaney the Supreme Court acknowledged that using controlled substances for unintended purposes was technically illegal, but that the FDA had to be allowed discretion and was within its rights to not seek enforcement of this particular violation of its regulations.
Lethal injections could proceed. Botches soon followed.
The first difficult lethal injections occurred in Texas when executioners had trouble finding suitable veins in prisoners who had been intravenous drug users. In 1988, a syringe popped out of a prisoner after the drugs had begun to flow, spraying them across the room. In 1989, a Texas prisoner had a violent reaction to one of the drugs, causing one of the witnesses to faint.
Despite the medical ethics issues, the technically illegal use of the drugs, and the botches, lethal injection prospered in the U.S. and eventually became the go-to execution method in every state that retained the death penalty.
But as lethal injection gained supremacy in the United States, the world outside was changing. Countries were abolishing the death penalty left and right, particularly in Europe. And Europe was consolidating itself into a Union that could project greater economic power and influence. Meanwhile, the pharmaceutical industry on which lethal injection relied was also consolidating, and globalizing. Botched executions that before would have flown under the radar suddenly became international incidents.
The most egregious of these was the failed execution of Romell Broom in Ohio. On September 15, 2009, Ohio executioners tried for 2 hours to find a suitable vein, at times with Broom’s assistance, before the state’s Governor eventually called the execution off. This embarrassing failure caused a stir on both sides of the Atlantic.
In Europe, disturbed that Ohio was still trying to execute Broom, the EU issued a statement and wrote to Ohio Governor Ted Strickland informing him that “to subject a person to a second execution attempt is contrary to widely accepted human rights norms.” In Germany, a documentary film called “The Second Execution of Romell Broom” was produced in 2012. (Broom remains on Ohio’s death row.)
In the U.S., the Ohio warden who oversaw the failed execution retired in 2010 and in 2011 came out against the death penalty.18 And by early 2010 two more U.S. medical professional associations had felt the need to make their positions clear.
In January 2010 the National Association of Emergency Medical Technicians (NAEMT) issued a position statement affirming that “it is a breach of the foundational precepts of emergency medical services, and a violation of the EMT Oath, to participate in taking the life of any person.”
The next month the American Board of Anesthesiology (ABA) incorporated the AMA’s Opinion 2.06 into its standing policy. This was updated in May of 2014 to emphasize that “ABA certificates may be revoked if the ABA determines that a diplomate participates in an execution by lethal injection.”
On March 31, 2010, Hospira, the maker of sodium thiopental, the anesthetic used in U.S. lethal injections, sent a to-whom-it-may-concern letter to Ohio and other states.
“Hospira provides these products because they improve or save lives … As such, we do not support the use of any of our products in capital punishment procedures.”
Ohio and other states did not heed Hospira’s admonitions, so in January of 2011, Hospira announced it would cease manufacturing the drug altogether; its intention to manufacture sodium thiopental at its Italian plant collided with the strong abolitionist leanings of that host country, which has been without executions since 1889 (excluding the Fascist era). Italian authorities insisted that Hospira guarantee its drugs would not be used in executions. Hospira did not believe it could do so, and chose instead to cease production entirely.
Other pharmaceutical companies followed Hospira’s lead.
Swiss-based Novartis, which made a generic version of sodium thiopental, announced in February 2011 that it had ordered its subsidiaries “not sell the product to distributors or third parties that may be selling it into the U.S.”
In April, Kayem, an Indian company based in Mumbai, announced that it would no longer sell itssodium thiopental “where the purpose is purely for Lethal Injection and its misuse.”
And in November 2011, another Swiss-based pharmaceutical company, Naari, demanded of Nebraska that its sodium thiopental which “was wrongfully diverted [from Zambia] ... to the Nebraska Department of Correctional Services be returned immediately to its rightful owners.”
With mounting difficulties in acquiring sodium thiopental, states began seeking alternative sedatives. The first choice was pentobarbital, but in April 2011 the U.K. banned its export to the U.S., and by July 2011 Lundbeck, a Denmark-based company that manufactured pentobarbital, was taking steps to keep their drug out of U.S. prisons.
At the end of 2011, the European Commission added sodium thiopental and pentobarbital to its “list of goods subject to export controls according to the anti-torture goods Regulation.”
Propofol was the next sedative states turned to, but Germany-based Fresenius Kabi announced export restrictions on that drug in September 2012. In May 2013, London-based Hikma announced export restrictions on its sedative phenobarbital as well.
And finally, in May 2014 when U.S.-based Par Pharmaceutical learned that its sedative, Brevital Sodium, had been acquired for executions by the state of Indiana, it objected and promised to implement distribution controls “to preclude wholesalers from accepting orders from departments of correction.”
Which brings us to the Supreme Court case involving midazolam. A majority of the Court’s justices seemed inclined to allow the use of midazolam, despite serious doubts that it is a sufficiently effective sedative, given the unavailability of alternatives. But in March a manufacturer of midazolam, Akorn, prohibited direct sales of the drug to prisons, and U.S. organizations representing pharmacists and compound pharmacists are now both on record opposing assisting in executions.
Did “abolitionists” have a role in encouraging this escalating pharmaceutical company and medical profession opposition? Undoubtedly. But it is the “First do no harm” core of medical ethics that has brought us to this point. U.S. lethal injection seems boxed in, and its inherent conflict with the globalized health-providing professions may have reached a tipping point.
States that seek to continue executing have mooted returning to electric chairs, gas chambers and firing squads, thus removing, for the most part, the conflict with the health professions. This may solve their problem in the short term, but even independent of debates about the proper method of execution it has become clear over the last decade that in the U.S. the death penalty itself is weakening.
Since 2007, seven states have abandoned capital punishment, death sentences have declined significantly, and the popularity of executions is deflating. Just this May, in staunchly conservative Nebraska, legislators overrode a Governor’s veto to abolish their state’s death penalty. In Harris County, Texas, which alone is responsible for over 100 executions, a recent survey found that, given the alternatives of life without parole, life with parole, or death, only 28% preferred capital punishment.
It is clear that the medical profession wants out of the execution business. What others want is less clear, but as states begin to try to reintroduce older, less clinical, methods of execution to a more squeamish public, we may find out.
Brian Evans has worked for 20 years in the human rights and criminal justice fields. Most recently he served as Director of Amnesty International USA’s Death Penalty Abolition Campaign where he wrote extensively on capital punishment and related topics for Human Rights Now, AIUSA’s blog. Prior to working on capital punishment, Brian spent ten years as the Bahrain, Oman and Saudi Arabia Country Specialist for AIUSA, providing the organization with human rights and country expertise. He has an M.A. in Middle East Studies from the University of Texas.