L’Abolition: on Glossip v Gross
August 3, 2015 Leave a comment
Tackling the death penalty question in the United States is often flawed by the lack of interdisciplinary approach. It focuses on an interpretation of the 8th Amendment; on the cost of long term incarceration; on the fairness of trials; on medical perspectives regarding the lethal injection; on the projected benefit for closure. All of those approaches are correct but intertwined. A comprehensive look at the capital punishment needs more. It needs a broader and collective conversation: the fundamental tenets of justice, the legal obligations under international law, the value of retribution, and the human cost.
After several botched executions continued to tarnish the image of the death penalty from Oklahoma to Missouri, it was a legitimate hope on the part of anti-execution activists and human rights workers across the board that the judicial review of the lethal execution as performed in 2015 in Oklahoma would open the door to a new narrative among the nine Justices – and the population they are entrusted to protect – that would consider the death penalty unconstitutional. Glossip v Gross failed, but on another tight ruling, a 5 to 4 majority decision, that holds as a unique approach the dissents of Justices Ginsburg and Breyer.
There is no well-traveled path to the abolition of the death penalty. It can be an act of judicial activism; it can be an executive, unilateral decision; it can be a popular, grassroots consultation. All are legitimate, and all have been used in the past by nations, developed and in development, seeking a better answer to criminal activity. Of the countries still upholding capital punishment next to the United States are North Korea, Iran, South Sudan, and Saudi Arabia. This list has long been opposed to the United States, permanent member of the Security Council, member of the Human Rights Council, self-professed world leader and freedom provider through the means of its military corps, as a motive for shame. The death penalty in itself suffices to illustrate the contradiction between what the United States purports to be, and what the United States inflicts on its own citizens.
Most of the commentary surrounding the decision centred around the threshold of cruelty. It was in Justice Alito’s main opinion, and it is a valid conversation of the interpretation of the 8th Amendment, postulating that the death penalty is constitutional. Very soon, however, those arguments fall short of the substance they should be carrying as they weigh the end of a human life: that all separate elements lead to the same question – the definition of justice. There are three key parts: one, the American exceptionalism that resides in the ratification of the ICCPR and the CAT. Two, the deeply rooted myth that the lethal injection is a more humane alternative than the electric chair. Three, that a judicial system is the voice of the people when it so shamelessly endorses retaliation and retribution as a means of punishment.
The story of the abolition of the death penalty in France is mentioned in passing, but rarely looked at in depth. In 1981, Robert Badinter, a tenor of the Bar, a criminal defense lawyer that had spent half of his career taking on death penalty cases as a matter of principle, was named Attorney General by the hours-old administration of President Mitterrand. In a phone call, Badinter warned Mitterrand of what he was about to do at the first Council of Ministers the following Wednesday. Mitterrand, solemnly and quietly, acquiesced. Badinter drafted the bill that would be voted by the Parliament on September 30, 1981. He insisted the bill would only consist of one line: “the death penalty is abolished.” A discussion on the death penalty cannot suffer conditions, derogations, exemptions, or exceptions. Although no legal, political, anthropological or psychological prelude can be dismissed as useless, the death penalty, in itself, in all it represents, in everything it has sought to destroy, in all its forms, in all its pointed so-called purpose, must be abolished.
The UN vs the US: arm-wrestling for human life
“When we walked out on the steps of the Court, I stopped. Raindrops started to fall, the beginning of a rainstorm. In the street, from the windows, everywhere, the crowd was in a hurry, I saw policemen running. From the underground the first squad cars emerged (…) and the same death screams, screams of joy, could be heard from the crowd. You could follow the trajectory of the police from the noise. Then everything became silent again. The crowd dispersed under the rain. (…) We walked down the steps, we walked down the same road we did before, without saying a word. Philippe told me he would stay there, at the hotel, that he wanted to meet with the client the next day. I agreed. I didn’t have his courage. The city was horrifying to me, I had to go back to Paris, as soon as possible. I packed and ran to the train station. The raindrops was drawing lines on the windows. I went home. I did not stop the client from being sentenced to death. So what is a lawyer for?”
Entered into force on July 11, 1991, the second additional protocol to the ICCPR provides for the abolition of the death penalty in all states party to the Covenant. It suffers no derogation (see article 2), for the notable – and perhaps problematic – wartime exemption. The Protocol bases itself on the inalienable right to life, and starts with the belief that “the abolition of the death penalty contributes to the enhancement of human dignity and progressive development of human rights”. The United States, unsurprisingly, did not ratify this protocol. The unequivocal language that bindingly refused any reservations to the ratification process could not be convenient for the United States, that had reinstated the death penalty in 1974, and had ensured the abolition or maintenance would be a state – not federal – issue. And at every turn, under every administration, the UN never forgets to remind the US that the ratification of the protocol, admittedly optional in its very name, is necessary for the US to be able to claim they adhere, at least on paper, to basic requirements under international human rights law.
What matters is that it is not a question of principle; the Human Rights Council is not interested in ticking boxes on behalf of member states. Adherence to the body of law, normative and positive, is a domestic commitment not only to enshrine those obligations into domestic law, but to enforce their violations. Not only is the United States violating this commitment and its duty under international law by maintaining the capital punishment at all costs, as part of its political and legal identity, but its discourse to the UN on the one issue constantly arising – and now part of a body of torture policies encompassing Guantanamo Bay to CIA rendition – has never changed. It has never evolved. It has never been modified to fit a changing landscape of political affiliation among the American population, application of different methods of execution, and the pressure exerted on the US by foreign allies adapting their extradition laws to the practice of state sponsored killing in the name of justice: EU states, with the exception of Belarus, by decision of the Council last updated in October 2009, will not extradite a charged individual to the United States if they run a risk of being sentenced to the death penalty, unless there is assurance the death penalty will not be carried out. A 2010 document published by the Congressional Research Service on the issue of extradition mentions the exception in a passive-aggressive tone, suggesting that denial of extradition on the grounds of opposition to the death penalty is more political than it is adherence to core human rights principles: “More than a few countries are reluctant to extradite in a capital case even though their extradition treaty with the United State has no such provision, based on opposition to capital punishment or to the methods and procedures associated with execution bolstered by sundry multinational agreements to which the United States is either not a signatory or has signed with pertinent reservations.” The European Convention on Human Rights (ECHR) considers the extradition to the United States with the risk of cruel and unusual treatment in detention or application of the death penalty a violation of its own prohibition of torture (see. Soering v UK, 1989).
During its first Universal Periodic Review (UPR), carried out in 2010, the United States, in its national report opening with the line “a more perfect union, a more perfect world”, it sought to reassure the UNHRC that the death penalty was carried out in a manner that was dignified, respectful, and fair, hereby entirely missing the point. From their submission, para. 62:
The federal government utilizes a system for carefully examining each potential federal death penalty case. This system operates to help ensure that the death penalty is not applied in an arbitrary, capricious, or discriminatory manner, and to promote indigent defendants receiving competent representation by qualified attorneys. Many of our states have adopted procedures of their own to provide experienced counsel for indigent defendants. In addition, existing federal law permits DNA testing in relevant federal and state cases.
The introduction of DNA testing in criminal cases has revealed the extent to which innocent people had been sentenced to death and buried in the state that punished them. Sometimes, it is the work of legal researchers, attacking details of the case for decades before managing a literally life-saving exoneration. From the infamous Carlos DeLuna case, executed by lethal injection in 1989 and whose case reviewed by Columbia Law School provided his innocence; to Damon Thibodeaux, freed from the infamous Angola jail in Louisiana after 15 years on death row, the lucky cases of exoneration while the detainee is still alive recall unfair jury selection, dismissal of evidence, and law enforcement incompetence. Steve Kaplan, Thibodeaux’s attorney, explains in 2012 his first reaction when accessing the case file:
When I read the transcript of the trial for the first time, I thought to myself that the high school mock trial team that I coached of 15- to 17-year-olds would have run rings around the lawyers in that courtroom (…) We put more energy into a $50,000 contract dispute than went into the defence at the Damon Thibodeaux trial.
The idea that death penalty cases are and should be held to higher legal standards due to the severity of the punishment is constantly shattered with each and every case that ardent lawyers – like Badinter once was – throw themselves into. A 2014 study published by the Proceedings of the National Academy of Sciences, reveals an alarming exoneration rate: 4.1% of prisoners on death row would be innocent. The study spans 1973 to 2004 and suggests that 340 were innocent, while only 138 during that period were in fact exonerated. Supreme Court Justice Antonin Scalia, one of five judges entrusted with the immense responsibility to have the final say in an execution, does not believe for a single minute that mistakes can be made despite mounting scientific and legal evidence to the contrary. In the 2006 case of Kansas v Marsh, Justice Scalia stands firm in his position that no one could possibly ever conceive is true:
It should be noted at the outset that the dissent does not discuss a single case – not one – in which it is clear that a person was executed for a crime he did not commit. If such an event had occurred in recent years, we would not have to hunt for it; the innocent’s name would be shouted from the rooftops by the abolition lobby.
There is plenty to shout about. Samuel Gross, the author of the aforementioned PNAS report, has no access to the exact data of how many innocent defendants were effectively executed. He tells the Guardian: “If you look at the numbers in our study, at how many errors are made, then you cannot believe that we haven’t executed any innocent person – that would be wishful thinking.” Because wishful thinking does in no way constitute a legal standard, let alone an acceptable one, it is clear that even the lowest possible margin of error – justice is, after all, drafted by humans and carried out by humans – is not acceptable either when it comes to the capital punishment. It is this idea that even advanced science can not be the sole piece of evidence in a trial that has bothered the United Nations since the US has claimed that its practice was fair and commendable. The Death Penalty Info Center (DPIC), an incredible online resource on the practice of the death penalty in the United States, maintains a database of exonerations and executions despite doubts about guilt. The list is non-exhaustive, and contains the heart-wrenching and perhaps most public of cases, the execution of Troy Davis in Georgia in 2011.
The case of Troy Davis is perhaps most difficult of all, as testimonies were recanted, evidence dismissed, and yet, he faced several stays in execution, each time thinking he would die, and being sent back to his cell. The only witness who did not recant his testimony on Davis’ guilt was the very individual many accused of the murder of police officer MacPhail. Davis could never fully prepare for the end of his life, not only because of the last-minute stays, but also because the battle for his exoneration raged on on the outside. His life was hanging on a thread, and floating around in uncertainty. Perhaps Davis wanted this masquerade of justice to end. Perhaps Davis held on for his nephew, present in Georgia the day he was put to death. His sister, activist Maria Correia, died shortly after Davis from cancer. It was a warm and humid night when Davis, who refused any special meal, was given a cocktail of pentobarbital, pancuronium bromide, and potassium chloride – the tri-cocktail of state-sponsored killings. The clinical aspect of the lethal injection makes little sense minutes before a detainee is killed. Davis, like so many before him, and many more later, was given a physical to ensure he was “fit for execution”. Once declared healthy enough to die, the Kafkaesque element of cruelty and consciousness of the action, it was made known Justice Thomas, to whom the case had been referred, had denied a stay in execution. Davis refused Ativan, a sedative he was offered. He was healthy enough and conscious enough to die. At 10.58pm, the execution began. 15 minutes later, at 11:08pm, Davis was pronounced dead. That day, present outside the Georgia prison, I felt Troy Davis die in my bones. I had witnessed executions before; the feeling creeps in, slowly. When Troy Davis died, it was the weight of the mistake that had been made, the entire lack of doubt as to his innocence and the standing on a turf once built upon by freed slaves that was carrying the body of Troy Davis on a gurney.
In 2010, the United States delegation responded to the UN and observer states that Illinois was on the path to abolish the death penalty. In the second cycle, presented this year, the US delegation made a mention of Glossip v Gross in its national report, presenting the case before the Supreme Court has a case example of how the judicial system can correct its own mistakes before the relevant domestic bodies. From para. 49,
U.S. constitutional restraints, in addition to federal and state laws and practices, limit the use of capital punishment to the most serious offenses, such as murder, in the most aggravated circumstances and with strict limitations. It is barred for any individual less than 18 years of age at the time of the crime and for individuals found by a court to have a significant intellectual disability. There are strict prohibitions against the use of any method of execution that would inflict cruel and unusual punishment and against imposition of the death penalty in a racially discriminatory manner. Federal and state laws require that sentencing decisions be individualized to the particular offender and offense. The President has directed DOJ to conduct a review of how the death penalty is being applied in the United States. Additionally, on January 23, the U.S. Supreme Court agreed to hear an argument, and is expected to rule in June 2015, on whether the lethal injection protocol used in executions by Oklahoma constitutes cruel and unusual punishment under the Eighth Amendment of our Constitution.
This is reflected in Scalia’s opinion – that he is visibly tired of heralding, starting it with “welcome to Groundhog Day”. He sounds self-sufficient, mocking the few recourses of the death row inmates under the capital punishment. Scalia also believes in the righteousness of a justice that kills, of the sovereignty of a Court that will endorse a decision. He associates the abolitionist movement with weakness; he abhorrs petitioners for denouncing cruel and unusual punishment after they were “duly’ convicted of crimes equally as cruel. And it’s in this cloak of pseudo-legality and chauvinistic tendency to deny the inevitable that Scalia also attacks his fellow Justices for falling for the claims many lawyers made before them:
… The response is also familiar: a vocal minority of the Court, waving over their heads a ream of the most recent abolitionist studies (a superabundant genre) as though they have discovered the lost folios of Shakespeare, insist that now, at long last, the death penalty must be abolished for good. Mind you, not once in the history of the American Republic has the Court ever suggested the death penalty is categorically impermissible. The reason is obvious: it is impossible to hold unconstitutional that which the Constitution explicitly contemplates. (…) Nevertheless, today Justice Breyer takes on the role of the abolitionists in this long running drama, arguing that the text of the Constitution and two centuries of history must yield to his 20 years of experience on this Court (…) Historically, the Eighth Amendment was understood to bar only those punishments that added ‘terror, pain, or disgrace’ to an otherwise permissible capital sentence. (…) Rather than bother with this troubling detail, Justice Breyer elects to contort the constitutional text. Redefining ‘cruel’ to mean ‘unreliable’, ‘arbitrary’, or causing ‘excessive delays’, and ‘unusual’ to include ‘decline in use’, he proceeds to offer up a white paper devoid of any meaningful legal argument.
And this is where Justice Scalia becomes not only painfully wrong, but completely oblivious to what constitutes a meaningful legal argument that has been pressed upon the United States since it reinstated the death penalty and sought “humane” methods of execution beyond the barbarism of the electric chair. A call to extend the realm of application of an 8th Amendment prohibition is not a redefinition; it’s a broadening of an already existing scope. A redefinition of what constitutes cruel, unusual and degrading treatment is however a long lasting and deeply rooted American tradition that Scalia seems to deliberately ignore in this paragraph, standing on the stilts of his firm belief in the unmoveable history of the Founding Fathers, and an ideal of justice based on biblical retribution. In this, Justice Scalia proceeds to offer up a pro-capital punishment diatribe devoid of any meaningful legal argument.
No one can reasonably expect Justice Scalia to be willingly compliant with international human rights law bodies. It should however not be far-fetched to expect him to understand why those cases regularly land on the Supreme Court docket – Groundhog Day – and why they rely on the same constitutional prohibition. Scalia, because of his position, knows that the law is not a static discipline. Although he conjures the phantom of Kant later in his opinion, the principle – that retribution is just discipline – carries little weight when faced with the reality that the tri-cocktail administered to Troy Davis, and now reworked to fit pharmaceutical shortages in Oklahoma and Missouri, is nowhere near a standard of fair and justified, measurable, reasonable, and proportionate punishment. If Scalia’s entire argument centres around grief elicited by the crime, provided the convict is indeed guilty, the grief is unlikely to go away by taking away another life. Whether this is Justice Scalia’s position to make that call, as opposed to basing himself on research – that he could wave around like the lost folios of Shakespeare – is only the reader’s guess.
Convention against torture and threshold of cruel and unusual punishment: reservations, exemptions, and botched executions
On December 19, 2014, the United Nations Committee Against Torture released its recommendations to the United States in regards to its obligations under the treaty. The “positive aspects” were extremely sparse, but the list of issues the UN raised with one of its most famous members was a journey through black holes, black sites, black operations, black injustice. Next to the rendition program and Guantanamo Bay, solitary confinement and sexual assault, the issue of the death penalty did not appear to be prioritized. It is in its own way: the abolition, at federal level, is a sign of commitment, is a significant symbol of the state of the judicial system, and is the final relinquishing of an obsolete punishment of a bygone age. And yet, in 2014, the Committee Against Torture can only be satisfied with a drip by drip abolition system, wherein each State is responsible for commuting death sentences into life with or without parole, without opposing or bypassing executive authority – or Justice Scalia’s Supreme Court – in its endeavour to make said State a place where justice can truly be achieved with concurring punishment that does not violate the fundamental aspects of humanism and, since Scalia himself referred to it, Enlightenment:
While welcoming the fact that six states abolished capital punishment during the period under review, the Committee expresses concern at the State party’s admission that it is not currently considering abolishing the death penalty at the federal level. The Committee also expresses concern at reported cases of excruciating pain and prolonged suffering that procedural irregularities have caused condemned prisoners in the course of their execution. The Committee is specially troubled by the recent cases of botched executions in Arizona, Oklahoma, and Ohio. The Committee is equally concerned at the continued delays in recourse procedures, which keep prisoners sentenced to death in a situation of anguish and incertitude for many years. The Committee notes that, in certain cases, such situation amounts to torture insofar as it corresponds to one of the forms of torture (i.e., the threat of imminent death) contained in the interpretative understanding made by the State party at the time of ratification of the Convention (arts. 1, 2 and 16).
Justice Scalia raised two points, besides scoffing at Justice Breyer’s abolitionist wish. One was the concept that the delays were not unnecessary, and that life without parole could be opposed the same argument. On the latter, this is not entirely untrue: life without parole as a criminal punishment has already been considered a form of cruel punishment by UN observers and was at the core of a recent case against the UK at the ECHR. It is a difficult issue that does not, regardless of how Scalia frames it, undermine the case for the abolition of the death penalty. Badinter sought abolition before an agreement was reached on how to commute sentences because the question of death as a punishment in itself had no merit. Second, he argues is that “no one is entitled to a painless death”. Justice Stevens concurs. This entitlement they question, and that is the basis of human rights law – that all are born equal under the law, and are born entitled to claim their rights as unalienable – is opposed to the cruelty of the crime for which they are sentenced. That cruelty passing off as justice carries an unprecedented and unmatched level of cruelty because it is disguised under a cloak of fairness, equality, and proportionality. Justice Breyer relies on precedent to prove that the capital punishment differs “not in degree, but in kind” (Furman) and that all safeguards must be “observed, when a defendant’s life is at stake” (Gregg).
It is not just the question of a whole generation being birthed and coming of age between a death sentence and the execution (the average time served on death row is currently 18 years). It is also the process of the execution itself which, illustrated in the case of Troy Davis, who went through several stays of execution before being strapped to the gurney one last time, provokes unusual punishment. The last minute phone call, the last minute fax, may constitute last minute relief, but they also constitute extreme distress, profoundly unreliable suspension of a human life in the name of procedure. The process, shockingly well rendered in Jean Paul Sartre’s The Wall – in which a political prisoner, sentenced to death, is left in the dark as to the time of his execution, and is spared the moment the finger of the shooters were on the trigger – trivializes the existentialist quest to obtain truth and transparency as to whether the time served was legitimate, and the punishment measured. As Justice Breyer explains, some even volunteer to die, as the anxiety of the wait becomes simply too much to bear:
Several inmates have come within hours or days of execution before later being exonerated. Willie Manning was four hours from his scheduled execution before the Mississippi Supreme Court stayed the execution (…) Two years later, Manning was exonerated after the evidence against him, including flawed testimony from the FBI hair examiner, was severely undermined. (…) Furthermore, given the negative effects of confinement and uncertainty, it is not surprising that many inmates volunteer to be executed, abandoning further appeals. (…) Indeed, one death row inmate, who was later exonerated, still said he would have preferred to die rather than to spend years on death row waiting for his exoneration.
Only those confronted with impending and looming death can understand the anxiety and the unexplainable damage caused by the uncertainty.
There are five – five! – UN General Assembly (UNGA) resolutions on the abolition of the death penalty between 2007 and 2013. The international framework dates back to 1984, when the Economic and Social adopted resolution 1984/50 on “Safeguards guaranteeing protection of the rights of those facing the death penalty”. The bar was then set low: ensuring that the capital punishment would remain an exception, that it would still be carried out with high standards, and that death row convicts would still have basic rights respected. Article 14 – the last – of these safeguards isn’t clear enough to be an applicable legal standard in the face of an argument placing the death penalty in compliance with a constitutional amendment prohibiting cruel and unusual punishment. It begs for the commuting of sentences. The UNHRC, however, went further. In June 2014, a special panel appointed during the 27th session of the Human Rights Council saw then-High Commissioner for Human Rights, Navi Pillay, command the states having abolished the death penalty and urged the others to engage in a transparent, well-informed, and public nationwide debate that could later be arbitrated thanks to a decision by the country’s highest judicial body – in the case of the United States, this would be Justice Scalia’s own Supreme Court:
The abolition of the death penalty often came into effect after a period of difficult national debate. To make sure that such debates were effective, transparent and fully reflective of the collective will, it was vitally important that the public be provided with balanced information and accurate statistics that covered all aspects of the discussion on criminality and described various effective ways, short of the death sentence, to combat it. With regard to arguments that abolishing the death penalty would go against the sentiments of the public, the High Commissioner emphasized that human progress did not stand still, and that popular support for the death penalty at a given moment did not imply that such support would persist in the future. She referred to undisputed historical precedents where laws, policies and practices inconsistent with human rights standards had had the support of a majority of the people; but had eventually been abolished or banned. She urged all States that still retained the death penalty to introduce a moratorium on it as a first step. She also emphasized that States should go beyond simply ceasing executions. They should aim for a suspension of capital punishment for all who might be, or had been, sentenced to it; prosecutors should no longer seek the death penalty and judges should not impose it. That could be done, for example, through a directive from the highest judicial body.
Justice Breyer used the argument of a judicial versus a legislative redress. The abolition of the death penalty could be a more encouraging statement should it emanate from the will of the people, from a collective, social, interpolitical and intergenerational need to end the capital punishment, as opposed to an elitism, judicial and unilateral measure coming from the top down. Badinter concluded that no such thing as the former could be implemented: the crowd’s bloodlust following a particularly shocking criminal act can never be rational nor be dependent on the law to remain fair and impartial. But if one thing shocks the people, it is also that the judicial will is no longer recognizing theirs, and the separation of powers places one somehow over the other. This is what happened to the people of Massachussetts upon learning that terrorism convict Dzokhar Tsarnaev would be sentenced to the death penalty, after they abolished it in 1987 and, several times, under the tenure of a former presidential candidate hopeful and pro-capital punishment governor, their state Congress refused to reinstate it. But Tsarnaev was on trial was federal offenses; the nationwide uproar that followed the bombing of a beloved local event weighed heavily on the judges. Boston, and the rest of Massachussetts, were left questioning their political identity, an essay in the New York Times exposing how powerless and punished they felt that a decision had been made despite their lack of consent, seemingly in the name of seeking reparations for the pain and the fear that followed the days after the event. Should the death penalty be abolished by the Supreme Court, it would perhaps lose its democratic legitimacy. But if there is one thing that Badinter knew, is that strong legal leadership sometimes requires to be a few steps ahead of the curve. Breyer, towards the end of his dissent, sees his role as a Supreme Court Justice precisely within that same framework:
The answer is that the matters I have discussed, such as the lack of reliability, the arbitrary application of a serious and irreversible punishment, individual suffering caused by long delays, and lack of penological purpose are quintessentially judicial matters. They concern the infliction – indeed the unfair, cruel and unusual infliction – of a serious punishment upon an individual. I recognize that in 1972 this Court, in a sense, turned to Congress and the state legislature in search for standards that would increase the fairness and reliability of imposing a death penalty. The legislature responded. But in the last four decades, considerable evidence have accumulated that these responses have not worked. Thus we are left with judicial responsibility. The Eighth Amendment sets forth relevant law, and we must interpret that law.
The panel heard the testimony of Kirk Bloodsworth, wrongly convicted of the murder of a young girl in Maryland in 1984, consequently spending almost 9 years on death row, in a cell barely big enough for his body to stretch and located right next to the gas chambers, where executions in Maryland took place. After recalling that his arrest and trial were ridden with judicial errors and the expediency that befalls murder investigations within a community in pain and fear, as mentioned above, Bloodsworth mentions the 2012 abolition in Maryland, after the 2003 Protection of Innocence Act, had been a long combat. He concluded, “it is the message of innocence that had made that abolition possible”. But as scientific advancements are made in the field of criminal forensics, anti-abolitionists will always rely on the closeness of a zero error point or entire scientific accuracy to support their claim; this also applies to the pharmaceutical experiments following the shortage of the drugs regularly used in executions by lethal injections.
The shortage is due in large part to a decision made by the European Union in 2011 to ban the export of pharmaceuticals used in executions to the US. In a series of moves that would infuriate any governor of any red state, the EU has in fact gotten involved into the US practice of the death penalty – from financial contributions to anti-death penalty activists, to the tune of $4.8 billion between 2009 and 2013 – to the more expected political lobby of petitions and requests made at various international events, demanding that the US comply with its international legal obligations and put an end to the capital punishment – the supranational body of governance submitted an amicus brief in Roper v Simmons, in 2005, heard and cited by Justice Kennedy. The drug shortage had a more direct and more drastic impact, however. The European Commission regulation 352/2011, amending a previous regulation from the Council, uses the following language:
(2) In some recent cases medicinal products exported to third countries have been diverted and used for capital punishment, notably by administering a lethal overdose by means of injection. The Union disapproves of capital punishment in all circumstances and works towards its universal abolition. The exporters objected to their involuntary association with such use of the products they developed for medical use.
(3) It is therefore necessary to supplement the list of goods subject to trade restrictions to prevent the use of certain medicinal products for capital punishment and to ensure that all Union exporters of medicinal products are subject to uniform conditions in this regard. The relevant medicinal products were developed for, inter alia, anaesthesia and sedation and their export should therefore not be made subject to a complete prohibition.
The Commission demanded that the ban be enforced immediately. The UK, initially reluctant, reversed course and re-affirmed support for the end of the death penalty. Sarah Ludford, a British MEP, told the Atlantic in 2014: “I am proud to have helped lead the campaign to stop EU-produced medicines being hijacked for such appalling uses, in line with the UK and EU commitment to abolish the death penalty around the world. I am determined to continue ensuring that Europe is not complicit in the deaths of American citizens.” That same year, US manufacturer Hopira, Inc. made the decision to stop manufacturing sodium thiopental. From a FoxNews (!) article,
Hospira said it decided in recent months to switch manufacturing from its North Carolina plant to a more modern Hospira factory in Liscate, Italy. But Italian authorities demanded a guarantee the drug would not be used to put inmates to death — an assurance the company said it was not willing to give.
“We cannot take the risk that we will be held liable by the Italian authorities if the product is diverted for use in capital punishment,” Hospira spokesman Dan Rosenberg said. “Exposing our employees or facilities to liability is not a risk we are prepared to take.”
If anything, it is globalization of trade that has slowed down the process of the death penalty. It has still to stop. Instead of looking at international pressure to stop killing human beings, or risking the capital of domestic corporations on violations of international law, states continuing the practice have turned to the highly dubious practice of compounding pharmaceuticals, which is akin to medical experimentation. This has led to the botched executions in Ohio and Oklahoma, covered extensively by The Guardian but failing to garner the uproar nationwide, where executions in southern and Midwestern states are frequent enough to void the qualifier of “unusual” punishment. Compounding drugs are not FDA-approved, are often found to be deficient; they may obtain accreditation, but it is not a requirement. So far in the US, only 180 compounding pharmacies have received said accreditation, placing them under a standard of accessing high quality drugs and working on certain type of equipment. This is this practice that is denounced at the core of Glossip v Gross, and that the UNHRC maintained had to be transparent and well-informed for a continued public debate on the death penalty. Quoting the irreplaceable Death Penalty Info Center (DPIC) on the use of compounding pharmacies and pharmaceuticals used in lethal injection:
South Dakota obtained pentobarbital, an anesthetic used in executions, from a compounding pharmacy for the October 15, 2012 execution of Eric Robert. The same source was likely used in the October 30, 2012 execution of Donald Moeller, but the Department of Corrections did not release information on the drug.
In 2012, in response to a court order to reveal the source of its lethal injection drugs, Pennsylvania announced that the drugs were obtained from compounding pharmacies. Pennsylvania’s execution protocol is the subject of a federal class action lawsuit. No executions have been carried out in the state since 1999. In March 2013, in anticipation of an execution that was later stayed on unrelated grounds, the Director of Colorado‘s Department of Corrections wrote a letter to 97 compounding pharmacies in the state, asking them to provide sodium thiopental for the execution.
After Georgia‘s supply of pentobarbital expired in March 2013, the state announced that it planned to obtain a new supply from a compounding pharmacy for the scheduled execution of Warren Hill (Associated Press, 7/11/13). Hill’s execution was stayed when a judge found unconstitutional a new state law that shielded the source of Georgia’s lethal injection drugs.
In October, 2013, Texas, Ohio, and Missouri announced plans to obtain drugs from compounding pharmacies.
The Supreme Court can discuss and debate whether or not the abolition of the death penalty is a judicial matter. It can attempt to rely on Congress and state legislature like it had done before in order to obtain a popular legitimacy they feel they would otherwise not have. This reveals a crisis of authority, not a discussion on the Eighth Amendment. It seems that regardless of the horror and the threshold of cruelty death row inmates have been submitted to, the war on terrorism, the war on drugs and other forms of domestic belligerence have endorsed violence as a means of retribution that is both legitimate and lawful. The United States exceptionalism lies within this capacity to survive despite its internal bloodshed and to herald it as a success of its own capacity of restraint. It is illogical and dangerous. It is destructive and blood-thirsty. It is, however, self-sustaining; the more violence is committed, the more retaliation finds itself justified in the eyes of those who believe the law should be a conflict referee, not a fair decision-maker on the basis of neutrality and equality. It is a concept that European bodies have failed to understand and the UN, failed to dismantle. There is no other authority but the Supreme Court, at this stage, to rule the death penalty as a whole – and not a means of execution – unconstitutional and hereby unlawful according to the law of the land. If Justices Thomas and Scalia await a popular change, a tidal wave in the popular opinion, a catalystic event that would reverse the course of the death penalty support in certain state legislatures, many will die, and will continue to die past their tenure in the Supreme Court. The closer some states – like Nebraska – are to a full abolition and commuting of sentences, the closer others are to continue killing in the name of justice, and do so in secret, forcing newspapers and attorneys to file delayed freedom of information requests to find out how their client will die, and whether the Supreme Court will grant a stay. Not this Supreme Court. Not right now.
Robert Badinter recalls the execution by guillotine of Bontems, in 1972. He recalls the 3am phone call, as he got out of bed, and contemplated the death of his client, shaving his face, slowly and carefully, “as a mark of politeness to the man who will die.” Later, he wrote:
Bontems was dead. I had seen Bontems walk to his death. I had seen a man die, a man I had represented. I would no longer be able to do anything to defend his case. No one pleads for a dead man. The lawyer of a dead man is only a man who remembers.
The guillotine makes everything pointless. There can be no revision, no possible stay, no possible exoneration, for the man who lost his head. I could no longer do anything for Bontems. This was the naked truth, the only truth of the night he died. What was the meaning of everything that had taken place, of all that we had done or wanted to do, for him, we as his lawyers? I looked at my face in the mirror. There was no answer. This isn’t the face of a murderer. This isn’t the face of a defeated lawyer, either. I turned off the light. Life, my life, would go on. But this was not the end. That night, for me, would not end with dawn.