Europe’s hostility to capital punishment at root of U.S. execution drug shortage
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 went ahead 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.
Fresenius Kabi, whose slogan is "caring for life," swiftly moved amid a blitz of bad PR and EU threats to introduce a stringent distribution control to prevent sales to U.S. prisons. Another manufacturer, Germany's B. Braun, immediately followed suit.
In October 2012 Missouri Governor 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-out bureaucratic 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 Reprieve's 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 WW II amid increasing public opposition.