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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.
"There will be no lasting peace either in the heart of individuals or in social customs until death is outlawed," French Literature Nobel Prize winner Albert Camus wrote in 1957 in an influential 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 dilemma to the United States, finding it difficult to import execution drugs from Europe since it switched from firing squads to lethal injection in 2011 on humanitarian grounds.Next Page >
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