How International Opposition To The Death Penalty Is Pushing State Officials Into A Corner

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Last week, Missouri’s Attorney General told a court he might resort to reviving gas chambers to carry out executions in his state, intent on moving forward with scheduled death sentences in spite of limited access to the cocktail of drugs typically used in lethal injections. On Monday, the state of Georgia plans to skirt limited access to the drug by executing a man using a small-batch drug dose that was not approved by the Food and Drug Administration. While neither of these practices are banned per se, they both raise alarm bells about how states are overcoming obstacles to approved methods of execution to move forward with the death penalty at any price.

A growing number of European and Asian companies that make the drugs used in executions are refusing on ethical grounds to distribute their drugs for use in executions, and the European Commission has imposed tight restrictions on export of certain drugs for execution, in furtherance of its position that the death penalty is cruel and inhuman. Dutch drug company Lundbeck called U.S. adoption of its epilepsy drug for the death penalty a “drastic misuse.” The world’s largest generic drug manufacturer explained, “Teva has shown that — like any responsible pharmaceutical company — it wishes to be in the business of saving lives, not ending them in executions.”

Among the drugs that have been withheld for executions is one element of the three-drug lethal injection cocktail approved by the U.S. Supreme Court in 2008. Lacking access to that drug, some states have turned to other single drug alternatives but these drugs have not only been withheld by international companies; their humane use has also been questioned in ongoing litigation. This means that those states committed to moving forward any cost are resorting to increasingly questionable alternatives.

Georgia is the second state to have openly admitted to the Associated Press using compounded pharmacies; South Carolina said it used that method for an execution in October. But other states have not been transparent about where they obtained their drugs for executions. Compounding pharmacies do not currently require oversight by the FDA, which regulates drug manufacturers and not pharmacies. This means that the FDA does not verify the drugs’ safety or effectiveness, leaving a major regulatory gap that has compromised consumer safety. Even the FDA acknowledges that pharmacy compounding can serve a useful purpose for those patients with special needs, but states are using it in this instance to skirt mere refusal to dispense existing drugs, and some have questioned whether prescription of the drugs on this basis violates medical ethics.

In turning to compounded pharmacies, Georgia appears to have escaped the legal and logistical obstacles that have held up executions in other states, and is poised to execute Warren Lee Hill Monday as scheduled. Neither the boycott of drug companies who have maintained moral opposition in spite of their overwhelming profit motive, nor the widespread calls for Georgia to follow U.S. Supreme Court precedent and spare a mentally incompetent man from the death penalty have thwarted the state’s commitment to put people to death.