Death Penalty Divide Between EU, U.S. Leads to Shortage of Lethal Injection Drugs

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More than 200 million Americans have European ancestors, and we share many traditions and values. But as anyone who has spent time on both sides of the Atlantic can attest, we are not the same. There are the cultural differences — Americans are into ice cubes, air conditioning and super-size everything, from coffee to cars. And there are political divides as well — Americans tend to prefer a more decentralized, smaller federal government that does less than what Europeans are used to. We share common bonds, but our values are not the same.

No issue better illustrates the continental divide than the death penalty, which is legal in 32 U.S. states but illegal in all 28 European Union member states. The normally fractious bloc has found rare unity on the issue. Opposition to capital punishment is a bedrock principle of the EU; candidate countries must abolish the death penalty before they can join. The EU has long tried to advocate for the rights of death-row prisoners in the United States, particularly in cases involving European citizens, the mentally ill, persons with low IQs and others.

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Photo: Lee Honeycutt
This replica shows the death chamber in Louisiana's Red Hat Cell Block, which closed in the 1970s. A few states have proposed returning to earlier methods of execution, such as electrocution or firing squad, because of a shortage of lethal injection drugs — a direct consequence of Europe's stiff opposition to the death penalty.

In recent years, the EU has ratcheted up its campaign by withholding the drugs necessary for lethal injections, leaving states scrambling for ways to execute death-row inmates. But whether European advocacy has helped soften American support for the death penalty is an open question.

According to a recent Pew Research Center poll, 55 percent of Americans support the death penalty, but that figure has declined steadily since the mid-1990s, when violent crime rates were much higher and support for capital punishment peaked at nearly 80 percent. In the last seven years, six states have abolished the death penalty: New York, New Jersey, Connecticut, New Mexico, Maryland and Illinois, where 20 death row inmates were exonerated before the state elected to formally ban capital punishment in 2011.

Later that same year, the European Commission imposed stringent controls on the export of drugs that are used to carry out lethal injections, like the sedative sodium thiopental or the barbiturate pentobarbital, which more than 30 U.S. states are required by law to provide as part of their execution procedure. The drug clampdown was part of a larger EU restriction on the export of goods used “for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment” that was enacted in 2005. (U.S. manufacturers are also reticent about producing lethal injection drugs for various legal and ethical reasons.)

As it has become more difficult to source the drugs needed to carry out executions, states have sought new sedation methods and drug cocktails to get around the shortage. And in January, the Virginia House of Delegates passed a bill that would mandate electrocution in instances where a death penalty sentence couldn’t be carried out by lethal injection. Lawmakers in Wyoming and Missouri have also recently floated the idea of introducing firing squads to ensure that their states can continue to carry out death sentences. Will the EU’s worldwide campaign to end the death penalty bear fruit in the United States or could it lead to some states using harsher, more dangerous execution methods?

“I think that the European efforts are having an effect,” said Richard Dieter, executive director of the Death Penalty Information Center, a nonprofit widely seen as opposing the death penalty. “Countries want to be perceived as modern and progressive. The times are changing and we are very aware of that.”

According to Amnesty International, the United States was one of only 22 countries that carried out executions — 39 — in 2013. The United States has carried out more than 1,300 executions since 1976, but that figure is dwarfed by China, which doesn’t release statistics on the number of executions it carries out but is widely believed to execute more prisoners each year than the rest of the world combined.

In fact, according to Amnesty’s latest report, 2013 saw a 15 percent spike in executions over the previous year, largely because of what the London-based watchdog called “virtual killing sprees” in Iran (at least 369 executions) and Iraq (169), followed by Saudi Arabia (79), where public beheadings and stonings are still lawful means of execution. Most of the countries where the death penalty is legal, save Japan, Taiwan, the UAE and Qatar, are developing countries: Yemen, Sudan, Afghanistan, Gambia, North Korea, Somalia, the Palestinian Authority, South Sudan, Afghanistan, Botswana, Bangladesh, India and Pakistan, among others. Indonesia, Kuwait, Nigeria and Vietnam all recently resumed the use of capital punishment. 

The death penalty has been formally abolished in 97 countries, including several like Bulgaria, Azerbaijan, Turkey, Georgia, Albania and Latvia that made the move at least in part because the EU requires it. Even for European countries that have no realistic hope of becoming an EU member state any time soon, abolishing capital punishment is seen as a way to be in lockstep with progressive European values.

Silvia Kofler, a spokeswoman and head of press and public diplomacy for the EU Delegation to the U.S. in Washington, said that the EU’s efforts to abolish the death penalty aren’t directed solely at the United States.

“This is not a divide between the United States and Europe,” said Kofler, a native of Italy who was a member of EU Delegations in Tokyo, Brussels and Moscow before taking up her post in Washington. “Europe is involved in a global effort to create a moratorium on the use of the death penalty, with the idea that this will ultimately lead to ending this practice around the world.”

Kofler said that the EU has had a coordinated approach to its death penalty advocacy campaign since 1998, when German diplomats failed to convince Jane Dee Hull, then the governor of Arizona, to commute the death sentences of Walter and Karl LaGrand, German brothers who killed a man and severely injured a woman during a botched bank robbery. The case galvanized Europeans to coordinate their efforts because the LaGrand brothers weren’t notified that they had a right to consular access from the German Embassy, based on the Vienna Convention on Consular Relations, an issue that had been a sticking point with other EU nations as well.

The subject of consular access has also drawn the ire of Mexican officials, who in recent years have lobbied Texas and other states to halt the executions of more than 50 Mexican nationals on the grounds they weren’t told of their right to legal assistance from the Mexican Consulate at the time of their arrest. The State Department, too, has objected to the executions, arguing they could jeopardize the legal rights given to Americans arrested overseas.

Those pleas have largely fallen on deaf ears in Texas, which accounts for the majority of executions in the United States and says the matter is a local one. The Supreme Court largely agreed, ruling in 2008 that Texas did not have to abide by an International Court of Justice verdict, which said the U.S. had violated its treaty obligations, unless compelled by the federal government. The Supreme Court also denied an 11th-hour stay of execution for convicted murderer and Mexican national Edgar Tamayo earlier this year.

As part of its own diplomatic campaign, the EU has submitted amicus briefs before the Supreme Court in cases involving the death penalty, including the 2002 Atkins v. Virginia case, in which the court ruled that executing mentally retarded persons violates the Eighth Amendment’s ban on cruel and unusual punishment, and it has engaged in direct diplomacy with states where capital punishment is legal. Kofler said the EU doesn’t get involved in every controversial death penalty case in the United States but typically takes action when an EU citizen is involved, or if the case involves another foreigner who was denied consular access or other special circumstances, such as when the defendants are minors or mentally ill.

The EU efforts could be perceived by supporters of capital punishment as meddling in the internal affairs of the United States, but Dieter says that Europeans have become more judicious and diplomatic in their outreach over the years.

“Their approach has matured,” he said. “It used to be more blunt force, like sending delegations to Texas to tell them that they were bloodthirsty violators of human rights and so on. That type of confrontational approach never worked.”

In attempting to explain why Americans are generally more supportive of the death penalty than Europeans, experts point to the fact that U.S. cities tend to have higher rates of violent crime, and specifically murders, than most European cities.

While theft, assault and other crimes are common on both sides of the Atlantic, homicide rates vary greatly, especially when it comes to gun violence. In 2010, the United States recorded just over 16,000 homicides, including 11,000 caused by guns (out of a population of around 300 million). In contrast, that same year, there were 5,742 homicides in all 27 EU member states (population 500 million), according to the U.N. Office on Drugs and Crime, which says firearms account for about 20 percent of all homicides in Europe — compared to nearly 70 percent in America.

In general, the European justice systems seem to favor rehabilitation over jail time, as evidenced by the vastly different rates of incarceration in the United States (which has about 920 prisoners per 100,000 inhabitants) versus the EU (which has 130 people behind bars for every 100,000).

Experts also theorize that Europeans, with a history of totalitarian regimes that abused human rights as recently as the fall of the Soviet Union, tend to be more progressive on a wide range of issues, from health care to social welfare programs to crime and punishment.

“There is a general belief in Europe that ending someone’s life is an inappropriate role for government,” Kofler said.

Michael Rushford, president and CEO of the Criminal Justice legal Foundation, a nonprofit group that supports capital punishment, has another theory to explain the divide.

“One of the reasons we have the death penalty and the Europeans don’t is that our voters are allowed to choose,” he said. “We are much freer than the European countries in terms of the kinds of laws and the punishments for crimes we allow.”

Rushford acknowledges the continental split on the death penalty, but insists that Europeans are more open to the concept than most believe. As proof of this, he points to a 2011 public opinion survey in Great Britain in which 53 percent of Britons said they’d support the reintroduction of capital punishment in the United Kingdom, and the fact that an effort to reintroduce the death penalty in Poland was narrowly defeated in 2004.

Rushford said that just as harsh penalties for drunk driving have curbed that behavior, the death penalty also deters people from committing murder, especially in cases where the criminal is in the process of committing an armed robbery and faces a choice of how to deal with witnesses.

“Since the late ’90s, there have been more than a dozen studies by economists and the overwhelming majority of those have shown that you prevent two to 18 murders for each execution,” he said. “And the impact is even greater if you execute within five years, rather than the 20 or so that is common in California and other states.”

Kofler contends that the death penalty does not serve as a deterrent and points to the fact that some of the states where the death penalty is legal have higher rates of violent crime than neighboring states where capital punishment is banned.

“We don’t think it works as a tool to diminish crime,” she said. “Retribution does not work.”

But has the European Commission’s drug ban backfired? Some governors have bristled at taking orders from the EU, and Dieter says that states are experimenting with less-regulated compounding pharmacies to obtain the drugs they need for lethal injections.

“This source of drugs carries particular risk because the purity of the drugs produced may not be as high as drugs from a manufacturer, and the drugs may not act in the ways expected,” he said.

But Dieter doesn’t think that states will resort to harsher execution methods if they can’t procure the drugs needed to give lethal injections.

“It is possible, but not likely, that states will revert to older methods of executions such as electrocutions or the firing squad,” he said. “These methods had their own problems and states abandoned them of their own volition, partly to make the death penalty more palatable to the public. If such executions were carried out on a regular basis, the public’s reservations about the death penalty would likely grow stronger.”

On that note, Dieter said that support for the death penalty is at a 40-year low.

“I don’t think we’ll ever have a moral revolution where 75 percent of the public decides that the death penalty is a human rights violation,” he said. “But it is winding down because it’s not effective, it’s not fair, there is the risk of mistakes, and you can’t point to any clear benefit. I don’t think we want to be the last country in the world that has the death penalty.”

Rushford concedes that Americans have become somewhat “complacent” as violent crime rates have gone down, but he sees no end in sight for the death penalty.

“Crime is already starting to go back up in some places and I think as that happens, you’ll find people asking, ‘Why aren’t we still executing convicted murderers?’” he said.

While some predict that the death penalty could see its own demise in the coming decades, Rushford doesn’t buy it.

“Several states have added new categories for who is eligible for the death penalty, and several states are currently considering laws to speed the death penalty process, including California,” he said. “To say it will be dead in 20 years I think is wrong. It may actually be in more states and it might begin to be enforced much more quickly than it is now.”


About the Author

Dave Seminara (@DaveSem) is a contributing writer for The Washington Diplomat.

Last Edited on April 1, 2014