Death Penalty States Stymied by European Commission’s Drug Embargo

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February 13, 2014; The Guardian

Death penalty opponents in this country were provided a leg up in their fight in December 2011 when the European Commission decided that it would no longer collaborate with the United States criminal justice system in selling it pentobarbital and sodium thiopental, the two drugs used to execute people on death row. The Commission placed restrictions on the export of the anesthetics on the basis that they were being used for “capital punishment, torture or other cruel, inhuman, or degrading treatment or punishment,” thus intensifying a shortage of these drugs.

The EC was explicit in saying that the move was to aid the European Union’s stated mission to abolish the death penalty around the world. Clare Algar of the human rights group Reprieve stated at the time, “We need to see a broad, catch-all provision to prevent any drugs from being used in capital punishment in order to ensure Europe is never again complicit in the death penalty.”

It was clear at the time that many states still had a stash of the drugs, but now they are beginning to run short and are starting to try end-runs around the supply problem, approaching compounding pharmacies for similar drugs. In a recent case, the state of Missouri’s attempt to buy these drugs has been blocked by the attorney for the death row inmate.

“Miscompounded pentobarbital poses a grave risk of suffering and pain in violation of the eighth amendment, as well as federal and state law,” said Carrie Apfel, attorney for death-row inmate Michael Taylor, in a statement announcing the settlement with the Apothecary Shoppe in Tulsa, Oklahoma.

A report in the Guardian on Monday revealed that Taylor alleged in his lawsuit that the state of Missouri appealed to the Apothecary Shoppe to supply compounded pentobarbital “because the only licensed manufacturer of the drug refuses to provide it for lethal injections. That company, Illinois-based Akorn Inc, agreed to that condition when it bought the exclusive rights to the drug in January 2012 from a Danish company that had produced it under the trade name Nembutal.

Taylor contends that several recent executions in which compounded pentobarbital was used showed it would likely cause him ‘severe, unnecessary, lingering and ultimately inhumane pain.’”—Ruth McCambridge