Over the last several years, European Union drug companies have been engaged in an active and effective boycott, refusing to sell the drugs used in lethal injections to prisons and correctional facilities. The original three-drug protocol comprised sodium pentathol, pancuronium bromide and potassium chloride. These drugs, administered in sequence, made condemned inmates unconscious, stopped the breathing and then stopped their hearts. The boycott of supplying the original drugs has led States to use alternate three-drug combinations or to try using single-drug executions with substances like Propofol and Midazolam but, as the States have widened their variety of drugs, drug companies based in the EU have simply widened their own boycott, drug by drug. This has led to States facing the very real probability that they will soon run out of any of their preferred drugs for future executions and, by the law of unintended consequences, has put those boycotting drug sales in a difficult position.
The idea behind the boycott was simple; If States simply lacked the drugs necessary to perform executions then executions would have to cease. It was also bad for the drug companies in the EU to be seen supplying the drugs as the EU has a standpoint of mandatory abolition for prospective member States and will also refuse to extradite prisoners to any country where they even might face the death penalty. As an institution, the EU is as solidly anti-death penalty as they come. What the EU and its drug companies didn’t seem to take into account was the commitment of individual States to continue executing inmate according to their own laws and practises, that those States bitterly resent what they see as foreigners interfering in their individual justice systems and the fact that pre-existing methods can, with few exceptions, be returned to active use if the need should arise. Individual States are now actively looking to do so, partly to keep their Death Rows from becoming overcrowded and partly to make a statement to the EU that foreign interference won’t be allowed to hinder their systems of justice and law.
Lethal injection was first used in Texas in 1982 for the execution of Charlie Brooks. Since then it has become the most popular method of execution in the United States, used as a first option by almost all active death penalty States and the Federal Government. It’s long superseded its notorious predecessors such as the gallows, firing squad, electric chair and gas chamber. One reason is that, properly done, it gives the appearance of a relatively quick and less painful death to an inmate, enabling States to sidestep repeated court challenges under the Eighth Amendment outlawing cruel and unusual punishment. Now, with the boycott in place and drug supplies running short, States have begun to resort to older methods or, as Oklahoma recently voted, to try altogether new ones instead.
Only days ago, the State of Utah opted to reintroduce the firing squad for its executions in the event that lethal injection drugs became unavailable. That bill has passed both the Utah House of Representatives and Senate and only require Governor Gary Herbert’s signature to become law. It’s only been five years since Ronnie Lee Gardner became Utah’s last inmate executed by firing squad before lethal injection became mandatory and already the firing squad looks like being restored as Utah’s primary method.
Also only days ago, a bill was defeated in Wyoming that called for the introduction of the firing squad on the same grounds. Wyoming legislators opted not to pass the bill, but the motivation behind it was the same. It was a message to Wyoming’s residents that the State would continue executing inmates even without the means to carry out lethal injection. It was also a message to those employing and supporting the drug boycott: We’re going to do this anyway, with or without your help and regardless of your objections.
Arkansas is also currently considering a bill to introduce the firing squad. This bill hasn’t yet been through wither the House or the Senate, but is definitely on the table
Senior legislators in Missouri have responded to the drug boycott in two ways. One has been to threaten to construct a new gas chamber to replace the old one in the now-abandoned Jefferson City prison. The other has been to suggest that firing squads might well be a potential option if drugs aren’t forthcoming.
Virginia, once a bastion of the electric chair, discarded Old Sparky in favour of lethal injection some years ago. Now, in response to the drug boycott, some Virginia legislators are openly suggesting that the electric chair be restored as the primary means of execution.
Tennessee has already gone one step farther than Virginia. In 2007 Daryl Lee Holton was the first inmate electrocuted in Tennessee in 47 years. After that, Old Sparky was decommissioned in favor of lethal injection. In 2014, after an overwhelming vote in favor of the measure, Governor Haslam signed into law a bill making electrocution mandatory if lethal injection drugs were unavailable. Tennessee’s chair was promptly dusted off and plugged back in, ready for use as and if required.
And what of Oklahoma, site of the terribly botched lethal injection of Clayton Lockett last year? Oklahoma’s House and Senate recently passed a law (currently awaiting the State Governor’s final approval) providing for a bizarre mix of an old method and an entirely new twist. Oklahoma has opted, if lethal injection drugs become unavailable, to introduce the nitrogen gas chamber. It would use a gas chamber similar to those currently available in several States, but with nitrogen gas instead of the traditional cyanide used in the chamber’s previous incarnations. Nitrogen gas has never been used for executions, but is said to be both far quicker and infinitely less painful than the traditional cyanide gas used since the first gas chamber execution in 1921.
So, to sum up. The EU drug companies haven’t yet won in their boycott of the American penal system. In fact, what they have achieved so far is the restoration of older, some would say crueller, methods rather than simply slowing or stopping executions as they have hoped. Instead of meekly knuckling under and bowing to the boycott, America’s prisons and Departments of Corrections have simply reloaded their rifles, dusted off their electric chairs and brought their gas chambers out of retirement. What the boycott has achieved, in spite of its lack of success in stopping executions, is to bring the whole issue of the death penalty generally to much greater and wider scrutiny.
Not, albeit for different reasons, what either the drug companies or the pro-death penalty lobby wanted.