Can Big Pharma end the death penalty in the US?

Someone on death row might have an excellent innocence claim or an excellent police corruption claim, but what is saving their life is shortages or litigation over execution drugs.

A man walks into a pharmacy with an execution warrant and is given the drugs necessary for execution by lethal injection. This sounds like a very bad joke, but is in fact what is going on at the moment in Ohio. And here is why.

Thirty two states retain the death penalty in the US, but a new obstacle is making it increasingly difficult for them to carry it out. Pharmaceutical companies are taking a moral stand. The manufacturers of the drugs required by state departments of corrections for executions are saying they will not allow their products to be employed in this way. Manufacturers in the UK, US, Denmark, Israel, Switzerland, Germany, Austria and India have taken steps to prevent their drugs being used in executions.

This has had an astonishing effect. Shortages of lethal injection drugs and attendant litigation have resulted in moratoria - an official halting of executions - in Arkansas, California, Kentucky, Louisiana, Maryland, Missouri, Montana, Nebraska, North Carolina, Oregon, and Tennessee. Historically, state entities do not move directly from having the death penalty to abolition. They begin with a moratorium on killing and then, when the population has grown unused to executions, the death penalty can be abolished. Of the states mentioned above, Maryland abolished the death penalty this year and abolition bills have been put forward in Nebraska, Colorado and California. California came very close to passing its abolition bill - voting against by 52 to 48. Meanwhile, the media coverage of the issue has exposed the unsavoury details of the execution process and created opportunities for serious debate about abolition.

As the Executive Director of a legal action charity that handles a number of death penalty cases, I speak to colleagues in the US who say that their client has an excellent innocence claim or an excellent police corruption claim, but what is saving the client's life is drug shortages or litigation over execution drugs. Here, I think, is why this initiative is so beautifully effective. The pharma companies are maintaining an intellectually coherent position: they manufacture medicines which they sell to doctors and health practitioners. Their raison d'être is the saving of lives. They absolutely should take this stance on their product being used by the State to kill people, and they have.

Last week, the governor of Missouri, not a liberal at all when it comes to the death penalty, said: "As Governor, my interest is in making sure justice is served and public health is protected.  That is why, in light of the issues that have been raised surrounding the use of propofol in executions, I have directed the Department of Corrections that the execution of Allen Nicklasson, as set for October 23, will not proceed. I have further directed the Department to modify the State of Missouri's Execution Protocol to include a different form of lethal injection."

This means that executions in Missouri will be halted until an alternative method can be found - and each proposed alternative method will be litigated to see whether or not it meets humane requirements. In California, the Chief Justice of the California Supreme Court has publicly stated that she predicts it will be three or more years before the state is in a position to carry out any executions due to lethal injection issues. Granting Nathan Dunlap a reprieve in Colorado, state governor John Hickenlooper agreed with Justice Harry Blackmun that "the death penalty experiment has failed", concluding: "Recent restrictions imposed by pharmaceutical companies and the Food and Drug Administration make procuring these drugs challenging. We must ensure that individuals facing the death penalty are afforded certain guaranteed rights of due process before a state proceeds with an execution."

Texas and Ohio are also currently having trouble sourcing execution drug supplies. Their solution? Currently, they are turning to compounding pharmacies to get their drug supplies - effectively they are asking a local pharmacy to knock up some makeshift drugs so that the local prison can kill someone. This is clearly inappropriate, but if there were any doubt about that one has only to look at some of the results: one warden is asking that the prescriptions be filled in his name - and he will then use the drugs on his prisoners. Another is using as the authorising medical authority a local hospital which has been closed for 20 years. And, as per my opening shot, Ohio has stated that pharmacists can fill prescriptions based on an execution warrant. At least some compounding pharmacies have said that they don’t want anything to do with the death penalty - one Texan pharmacy refused to fill an order for compounded pentobarbital when it found out the drugs were for executions, and another requested that its drugs be returned when it found out the purpose for which the drugs had been ordered.

Is there, then, a danger that states will go back to more brutal methods of execution? To hanging, the gas chamber, the firing squad, or even the electric chair? First, any such suggestion would open excellent litigation challenge opportunities. And more interestingly, executing states have invested a lot of time and energy in persuading the world that death by lethal injection is humane. In the face of that, it would be difficult to introduce an obviously barbaric alternative - should we expect a return of that most efficient engine of destruction, the guillotine? Will the heads of murderers fall into a basket whose specification the Texas legislature will have to decide? Will basket-weavers have to require end-user licences if they dissent from the death penalty? I think that even the most bloodthirsty states might have a job getting that onto the books. (Just on the humane-ness of lethal injection - because I cannot let it pass unsaid - there are so many examples of botched executions and improperly administered drugs that the process is nowhere near humane much of the time, even if you believe - as I do not - that there is a priori any means of humane execution.)

The execution drug project began at the end of 2010, when it became apparent that a UK company, Dream Pharma (housed behind a driving school in Acton) was manufacturing and supplying execution drugs to death rows in the US. Now, in less than three years, the industry has taken significant, concrete, and effective action and poses the largest threat to execution within the US. It is not often that pharmaceutical companies are celebrated for their good deeds in the world, for straight up moral choices, but now is one of those times - please be upstanding, and raise your coffee in the general direction of Lundbeck, Fresenius Kabi, Hospira, Teva, Naari and many more. . . Thank you.

Clare Algar is executive director of the charity Reprieve, which has been working with pharmaceutical companies on strategies to prevent their medicines being supplied to execution chambers.

 

 

A prison in California, where executions have been halted because of drug shortages. Photo: Getty
Photo: Getty
Show Hide image

After Richmond Park, Labour MPs are haunted by a familiar ghost

Labour MPs in big cities fear the Liberal Democrats, while in the north, they fear Ukip. 

The Liberal Democrats’ victory in Richmond Park has Conservatives nervous, and rightly so. Not only did Sarah Olney take the votes of soft Conservatives who backed a Remain vote on 23 June, she also benefited from tactical voting from Labour voters.

Although Richmond Park is the fifth most pro-Remain constituency won by a Conservative at the 2015 election, the more significant number – for the Liberal Democrats at least – is 15: that’s the number of Tory-held seats they could win if they reduced the Labour vote by the same amount they managed in Richmond Park.

The Tories have two Brexit headaches, electorally speaking. The first is the direct loss of voters who backed David Cameron in 2015 and a Remain vote in 2016 to the Liberal Democrats. The second is that Brexit appears to have made Liberal Democrat candidates palatable to Labour voters who backed the party as the anti-Conservative option in seats where Labour is generally weak from 1992 to 2010, but stayed at home or voted Labour in 2015.

Although local council by-elections are not as dramatic as parliamentary ones, they offer clues as to how national elections may play out, and it’s worth noting that Richmond Park wasn’t the only place where the Liberal Democrats saw a dramatic surge in the party’s fortunes. They also made a dramatic gain in Chichester, which voted to leave.

(That’s the other factor to remember in the “Leave/Remain” divide. In Liberal-Conservative battlegrounds where the majority of voters opted to leave, the third-placed Labour and Green vote tends to be heavily pro-Remain.)

But it’s not just Conservatives with the Liberal Democrats in second who have cause to be nervous.  Labour MPs outside of England's big cities have long been nervous that Ukip will do to them what the SNP did to their Scottish colleagues in 2015. That Ukip is now in second place in many seats that Labour once considered safe only adds to the sense of unease.

In a lot of seats, the closeness of Ukip is overstated. As one MP, who has the Conservatives in second place observed, “All that’s happened is you used to have five or six no-hopers, and all of that vote has gone to Ukip, so colleagues are nervous”. That’s true, to an extent. But it’s worth noting that the same thing could be said for the Liberal Democrats in Conservative seats in 1992. All they had done was to coagulate most of the “anyone but the Conservative” vote under their banner. In 1997, they took Conservative votes – and with it, picked up 28 formerly Tory seats.

Also nervous are the party’s London MPs, albeit for different reasons. They fear that Remain voters will desert them for the Liberal Democrats. (It’s worth noting that Catherine West, who sits for the most pro-Remain seat in the country, has already told constituents that she will vote against Article 50, as has David Lammy, another North London MP.)

A particular cause for alarm is that most of the party’s high command – Jeremy Corbyn, Emily Thornberry, Diane Abbott, and Keir Starmer – all sit for seats that were heavily pro-Remain. Thornberry, in particular, has the particularly dangerous combination of a seat that voted Remain in June but has flirted with the Liberal Democrats in the past, with the shadow foreign secretary finishing just 484 votes ahead of Bridget Fox, the Liberal Democrat candidate, in 2005.

Are they right to be worried? That the referendum allowed the Liberal Democrats to reconfigure the politics of Richmond Park adds credence to a YouGov poll that showed a pro-Brexit Labour party finishing third behind a pro-second referendum Liberal Democrat party, should Labour go into the next election backing Brexit and the Liberal Democrats opt to oppose it.

The difficulty for Labour is the calculation for the Liberal Democrats is easy. They are an unabashedly pro-European party, from their activists to their MPs, and the 22 per cent of voters who back a referendum re-run are a significantly larger group than the eight per cent of the vote that Nick Clegg’s Liberal Democrats got in 2015.

The calculus is more fraught for Labour. In terms of the straight Conservative battle, their best hope is to put the referendum question to bed and focus on issues which don’t divide their coalition in two, as immigration does. But for separate reasons, neither Ukip nor the Liberal Democrats will be keen to let them.

At every point, the referendum question poses difficulties for Labour. Even when neither Ukip nor the Liberal Democrats take seats from them directly, they can hurt them badly, allowing the Conservatives to come through the middle.

The big problem is that the stance that makes sense in terms of maintaining party unity is to try to run on a ticket of moving past the referendum and focussing on the party’s core issues of social justice, better public services and redistribution.

But the trouble with that approach is that it’s alarmingly similar to the one favoured by Kezia Dugdale and Scottish Labour in 2016, who tried to make the election about public services, not the constitution. They came third, behind a Conservative party that ran on an explicitly pro-Union platform. The possibility of an English sequel should not be ruled out.  

Stephen Bush is special correspondent at the New Statesman. His daily briefing, Morning Call, provides a quick and essential guide to British politics.