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Execution-drug policies in Missouri, other states tied to European death-penalty stance

Tuesday, February 18, 2014 | 4:30 p.m. CST; updated 9:56 p.m. CST, Tuesday, February 18, 2014

BRUSSELS — There's one big reason the United States has a dearth of execution drugs so acute that some states are considering solutions such as firing squads and gas chambers: Europe won't allow the drugs to be exported because of its fierce hostility to capital punishment.

The phenomenon started nine years ago when the EU banned the export of products used for execution, citing its goal to be the "leading institutional actor and largest donor to the fight against the death penalty." But beefed up European rules mean the results are being most strongly felt in the United States now, with shortages becoming chronic and controversial executions making headlines.

In Ohio last month, Dennis McGuire took 26 minutes to die after a previously untested mix of chemicals began flowing into his body, gasping repeatedly as he lay on a gurney. On Jan. 9, Oklahoma inmate Michael Lee Wilson's last words were: "I feel my whole body burning."

The dilemma again grabbed national attention this week when an Oklahoma pharmacy agreed Monday to refrain from supplying an execution drug to the Missouri Department of Corrections for an upcoming lethal injection. Death row inmate Michael Taylor's representatives had argued in a lawsuit that recent executions involving the drug pentobarbital would likely cause "inhumane pain" — and, ahead of a hearing set for Tuesday, The Apothecary Shoppe said it would not provide the drug.

EU nations are notorious for disagreeing on just about everything when it comes to common policy, but they all strongly — and proudly — agree on one thing: abolishing capital punishment.

Europe saw totalitarian regimes abuse the death penalty as recently as the 20th century, and public opinion across the bloc is staunchly opposed to it.

The EU's uncompromising stance has set off a cat-and-mouse game, with U.S. corrections departments devising new ways to carry out lethal injections only to hit updated export restrictions within months.

"Our political task is to push for an abolition of the death penalty, not facilitate its procedure," said Barbara Lochbihler, chairwoman of the European Parliament's subcommittee on human rights.

Europe's tough stance has caused U.S. states to start experimenting with new drug mixtures, even though convicts' lawyers and activists argue they increase the risk of painful prolonged death and may violate the constitutional ban on cruel and unusual punishment.

In an upcoming execution in Louisiana, the state is set to follow Ohio's example in using the untested drug cocktail. It changed its execution protocol last week to use Ohio's two-drug combination because it could no longer procure pentobarbital, a powerful sedative.

The execution was scheduled for February, but was stayed pending a federal judge's examination in April regarding whether the state can proceed with the plan to execute Christopher Sepulvado, convicted in the 1992 killing of his 6-year-old stepson.

In 2010, Louisiana switched from the established three-drug protocol to a one-drug pentobarbital lethal injection, but eventually that drug also became unavailable because of European pressure.

"The lethal injection that they are using now in certain states has never been tested, verified, let alone been approved for executions," said Maya Foa, acting director of Reprieve, a London-based charity fighting the death penalty. "This amounts to using humans as guinea pigs. No doctor would ever do that."

Ohio prosecutors counter that condemned inmates are not entitled to a pain-free execution under the Constitution.

Even if the effect of the two drugs used by Ohio "presents some inherent risk of discomfort, that does not amount to cruel and unusual punishment," Christopher Conomy, an assistant Ohio attorney general, argued in court documents last month.

The U.S. execution dilemma goes back to 2005, when the EU restricted exports of goods "for the purpose of capital punishment or for the purpose of torture." That ban includes items such as electric chairs and lethal injection systems.

The drug shortage then started biting in 2010 when Hospira Inc., the sole U.S. manufacturer of sodium thiopental, a sedative that is part of the normal three-drug mixture, stopped production. A few months later, Hospira dropped plans to produce it in Italy because the government there asked for guarantees that it would never be used in executions.

In 2011, states switched to pentobarbital, but Denmark-based Lundbeck Inc., the drug's only U.S.-licensed maker, faced a public backlash and quickly said it would put the medication off-limits for capital punishment through a tightly controlled distribution system.

Fearing for their reputation, the companies never wanted to see their drugs used in executions.

As U.S. authorities started looking for other sources, Britain and restricted exports of sodium thiopental and other drugs at the end of 2010.

"This move underlines this government's ... moral opposition to the death penalty in all circumstances," Business Secretary Vince Cable+ said then.

Germany's government also urged pharmaceutical companies to stop exports, and the country's three firms selling sodium thiopental promised not to sell to U.S. prison authorities.

The EU then updated its export regulation in late 2011 to ban the sale of eight drugs — including pentobarbital and sodium thiopental — if the purpose is to use them in lethal injections.

That produced a flurry of action in the United States. In May 2012 Missouri announced it would switch to using the anesthetic propofol, infamous for its role in Michael Jackson's overdose death. But propofol, too, was manufactured in Europe, by Germany's Fresenius Kabi.

Missouri's plan prompted an outcry across Europe, and the EU threatened to restrict propofol exports. That in turn provoked a medical outcry in the U.S. because propofol is used in about 95 percent of surgical procedures requiring an anesthetic, according to the American Society of Anesthesiologists.

Pharmaceutical companies around the globe have been loath to see their drugs used in executions because the market is tiny and promises close to no financial gain, while potentially exposing them to costly bad PR.

In the U.S., there is a variety of reasons why no manufacturer will supply execution drugs, from the desire to avoid lawsuits to the makers' opposition to the use of such drugs in capital punishment.

Fresenius Kabi, whose slogan is "caring for life," swiftly moved to introduce a stringent distribution control to prevent sales to U.S. prisons. Another manufacturer, Germany's B. Braun Medical Inc., immediately followed suit.

In October 2012, Missouri Gov. Jay Nixon expressed indignation, saying state and federal court systems, not European politicians, should decide death penalty policy. Still, a month later he backtracked and halted what was to have been the first U.S. execution using propofol.

Missouri and other states have since also resorted to custom-made batches of drugs, while refusing to divulge which pharmacy produced them — as in the case being heard Tuesday.

The secrecy has led to new lawsuits, not least after safety concerns over such drugs arose in 2012 after contaminated injections from a Massachusetts facility caused a meningitis outbreak that killed 64 people and sickened hundreds.

An attorney for McGuire's family supported the European position:

"I think it's right for the (pharmaceutical) companies to draw a line when people are using the drugs for the wrong purposes," said Jon Paul Rion.

In principle, there are a number of painkillers, sedatives and paralyzing agents that can kill if administered in high doses. But switching drugs will invite new lawsuits and could involve drawn-outbureaucratic or legislative delays — in addition to doubts about how quickly and mercifully these drugs can kill.

"Such botched executions go some way to debunking the myth that lethal injection is a humane way to kill someone," said Foa.

When Europeans criticize the U.S., they frequently cite the inequality of health care and the continued use of capital punishment.

Europe has seen autocratic or totalitarian regimes corrupting justice throughout the 20th century with people being executed for political reasons or without fair trial, resulting in strong opposition to the death penalty after World War II.

Western Germany forbade capital punishment after the war, just as Italy did. France, which gave the world the word "guillotine," decapitated only a few people after the war amid increasing public opposition.

"There will be no lasting peace either in the heart of individuals or in social customs until death is outlawed," Albert Camus, a French literature Nobel Prize winner, wrote in an influential, 1957 essay.

France's last execution now dates back almost 40 years. In Eastern Europe, the death penalty was abolished after the collapse of the Soviet Union.

An international AP poll in 2007 found that about 70 percent of those surveyed in the U.S. favor the death penalty for people convicted of murder. In Germany, Italy and Spain only about 30 percent did so.

Overall, experts say Europe's judicial system is more oriented toward rehabilitation, not punishment. That is also reflected in drastically lower incarceration rates: Across the EU, about 130 people per 100,000 inhabitants are behind bars compared to 920 in the U.S, according to EU and U.S. Justice Department figures.

The death penalty has been abolished or suspended in all developed economies, except for the U.S. and Japan. Execution rankings have routinely shown the U.S. in the unusual company of China, Iran, Saudi-Arabia, Iraq and Pakistan.

Vietnam has faced a similar issue, finding it difficult to import execution drugs from Europe since it switched from firing squads to lethal injection in 2011 on humanitarian grounds.

The anti-capital punishment camp has also gained ground in the U.S.

The number of U.S. executions has declined in recent years — from a peak of 98 in 1999 to 39 last year. Some states have abolished the death penalty, and those that carry on find executions increasingly difficult to conduct because of the drug scarcity and doubts about how well they work.

Public support for capital punishment also appears to be retreating. Last year, 60 percent of Americans polled said they favor the death penalty for convicted murderers, the lowest level measured since 1972, according to Gallup.

To counter the drug shortages lawmakers in some death penalty states — Missouri, Virginia and Wyoming — are now considering bringing back execution methods such as firing squads, electrocutions and gas chambers.

There are still about 3,000 inmates on death row.


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Comments

Dudley Sharp February 19, 2014 | 3:52 a.m.

Moral Hypocrisy: European Union & The US Death Penalty
Dudley Sharp

updated 2/18/2014

The majority population in most (if not all) EU countries support the death penalty for some crimes (1) . Why? Justice (2).

MORAL COMPASS

EU governments/politicians wine about the US using propofol (and other drugs) for the execution of guilty murderers (3), as Syria wipes out thousands of innocents with sarin gas, thanks to Germany (4).

EU politicians and world sanctions against Germany? Zero.

Compassion

Missouri Gov. Jay Nixon decided to suspend the execution of multiple murderer Allen Nicklasson because Missouri's use of propofol for executions, prompted an EU threat to withhold propofol, thereby putting thousands of innocent patients at risk - propofol use is " . . . about four-fifths of all anesthetic procedures (in the US). . . ". (5) see crimes of Allen Nicklasson (6)

Pro death penalty Gov. Nixon was compassionate for all of the patients who would may have suffered, had propofol been withheld.

Save murderers, at any cost

Anti death penalty EU governments/politicians are much more concerned that all guilty murderers must live, than they are for innocent patients or innocent murder victims. They made their choice.

As Washington Post columnist Charles Lane observes: " . . . just when I'm giving them the benefit of the doubt, some Europeans (EU governments/politicians) go and do something irresponsible like restricting the export of sodium thiopental, an anesthetic, to the United States -- because some death penalty states use it in lethal injections. Not only is this gesture unlikely to prevent any executions -- it actually could put the lives and health of innocent Americans at risk." (7)

EU governments/politicians know that they are putting innocents at risk, in order to benefit guilty murderers. That's been an anti death penalty staple forever - save all murderers, no matter the cost (8)

It seems that anti death penalty EU politicians have a moral preference for guilty murderers over innocent patients or innocent murder victims, very similar to that of anti death penalty activists in the US, whose moral/scholarly leadership has stated a preference of sacrificing an additional 6.3 million innocent murder victims rather than executing 1300 murderers (8).

Astounding, but true.

more at

Moral Hypocrisy: European Union & The US Death Penalty
http://prodpinnc.blogspot.com/2013/10/ge...

(Report Comment)
Dudley Sharp February 19, 2014 | 3:55 a.m.

The (imagined) Horror of Dennis McGuire's Execution
Dudley Sharp

Ohio justly executed rapist/torturer/murderer Dennis McGuire.

Unconscious, McGuire snored and the media went apoplectic.

The Horror is that the media will have 10,000 more articles about the imagined suffering of this executed rapist/torturer/murderer than they did about the real suffering of his victims, Joy Stewart, her husband Kenny, unborn child Carl and their families and friends.

There is no indication that McGuire was in pain, at any time, or that he was conscious after the first 1-3 minutes of the 25 minute execution process, as pharmacological realities would dictate (see below).

There is every indication that Joy Stewart was conscious throughout the eternal horror of her savage rape and murder. McGuire forced Joy from her car, choked her, attempted to rape her vaginally, raped her anally, slashed her throat so deeply it severed both her carotid artery and jugular vein, all the while Joy realizing the horror of her own death, as well as that of her unborn child.

The baby’s name would have been Carl, his mother’s grave marker shows.

Joy's husband, Kenny, committed suicide within a year after their murders.

McGuire had more time on death row than Joy had in life.

"State prison records released Monday say McGuire told guards that (McGuire's counsel, Robert) Lowe counseled him to make a show of his death that would, perhaps, lead to abolition of the death penalty. But three accounts from prison officials indicate McGuire refused to put on a display." (1)

"Amy Borror, a spokeswoman for the public defender's office, said all accounts from execution eyewitnesses - which did not include Lowe - indicate McGuire was unconscious at the time he struggled to breathe." (1)

"Medical experts would not comment on Mr. McGuire’s execution or speculate about what he experienced. They agreed that used for surgery, the two drugs would not cause pain. (2).

“By virtue of what they do, they cause unconsciousness, and they inhibit pain,” said Dr. Howard Nearman, professor of anesthesiology at Case Western Reserve University (2).

As there was no surgery, both drugs were given at overdose levels and both drugs would enhance the effects of the other, of course there was no pain.

Do folks wheeze, snore, move or cough etc. while sleeping? Do those with opiate overdoses wheeze, snore, move, cough, have spasms, etc.? Of course, which is all that happened with McGuire, as some predicted.

more at

The (imagined) Horror of Dennis McGuire's Execution
http://prodpinnc.blogspot.com/2014/01/th...

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