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Europe taught America how to end the death penalty. Now maybe it finally will Europe taught America how to end the death penalty. Now maybe it finally will
(4 months later)
Coverage of America's latest lethal injection debacle has played and replayed the ugly details of last Tuesday's botched execution in Oklahoma, once again throwing the nation's death penalty problems into the international spotlight. Experimental drug combinations. Secret procedures. Proposals for the return of the electric chair and firing squads. Every one of those problems, it should be noted, can be traced back to European activism.Coverage of America's latest lethal injection debacle has played and replayed the ugly details of last Tuesday's botched execution in Oklahoma, once again throwing the nation's death penalty problems into the international spotlight. Experimental drug combinations. Secret procedures. Proposals for the return of the electric chair and firing squads. Every one of those problems, it should be noted, can be traced back to European activism.
For decades, Europe has done all it could to bring its anti-death penalty stance to the United States. We've seen international covenants and conventions, refusals to expedite in capital cases, good old-fashioned diplomacy, even EU briefs to the US supreme court. Nothing has worked. Until now. Over the last several years, Europe has found a way to export its rejection of capital punishment ... by refusing to export lethal injection drugs to the United States.For decades, Europe has done all it could to bring its anti-death penalty stance to the United States. We've seen international covenants and conventions, refusals to expedite in capital cases, good old-fashioned diplomacy, even EU briefs to the US supreme court. Nothing has worked. Until now. Over the last several years, Europe has found a way to export its rejection of capital punishment ... by refusing to export lethal injection drugs to the United States.
In the private sector, European pharmaceutical companies caught wind of the increasing reality that their products were being diverted to execution chambers, so they either imposed end-user agreements on buyers or stopped producing the drugs altogether. In the public sector, Britain responded by imposing export controls on drugs used for lethal injection and joined a chorus of countries calling for the European Commission to do the same, which it did. In the private sector, European pharmaceutical companies caught wind of the increasing reality that their products were being diverted to execution chambers, so they either imposed end-user agreements on buyers or stopped producing the drugs altogether. In the public sector, Britain responded by imposing export controls on drugs used for lethal injection and joined a chorus of countries calling for the European Commission to do the same, which it did.
When it comes to the death penalty, the United States today is what South Africa was in the 1980s. It is the subject of a targeted boycott of goods based on behavior that the rest of the world views as immoral. That's a mighty strange place to be for the self-declared leader of the free world.When it comes to the death penalty, the United States today is what South Africa was in the 1980s. It is the subject of a targeted boycott of goods based on behavior that the rest of the world views as immoral. That's a mighty strange place to be for the self-declared leader of the free world.
You might ask: so what? The US is still executing, and Europe's boycott hasn't slowed down executions in states like Texas, where the death penalty is as much a part of life as grits are for breakfast in the American South. If anything, the dearth of lethal injection drugs has provided an excuse for blood-thirsty states to speed up executions, rather than slow them down.You might ask: so what? The US is still executing, and Europe's boycott hasn't slowed down executions in states like Texas, where the death penalty is as much a part of life as grits are for breakfast in the American South. If anything, the dearth of lethal injection drugs has provided an excuse for blood-thirsty states to speed up executions, rather than slow them down.
That much is true, but Europe's boycott is the reason states are experimenting with new lethal injection drug protocols. It's the reason they are fighting to protect the secrecy of their sources. It's the reason they are considering far more controversial methods of execution.That much is true, but Europe's boycott is the reason states are experimenting with new lethal injection drug protocols. It's the reason they are fighting to protect the secrecy of their sources. It's the reason they are considering far more controversial methods of execution.
Those developments may seem desperate and dangerous, but they are having second-order effects that have opened up a new legal frontier: Americans are a litigious bunch, and new avenues of attack on experimental drug cocktails and the shroud of secrecy surrounding their use could bog down the administration of the death penalty for years.Those developments may seem desperate and dangerous, but they are having second-order effects that have opened up a new legal frontier: Americans are a litigious bunch, and new avenues of attack on experimental drug cocktails and the shroud of secrecy surrounding their use could bog down the administration of the death penalty for years.
And this level of public attention to capital punishment has not been seen in decades. Every new debacle creates space in the public discourse to talk about its problems. Grossly inadequate counsel. Racial discrimination. Geographic arbitrariness. Excessive cost. Exonerations of death row inmates – over 140 of them so far.And this level of public attention to capital punishment has not been seen in decades. Every new debacle creates space in the public discourse to talk about its problems. Grossly inadequate counsel. Racial discrimination. Geographic arbitrariness. Excessive cost. Exonerations of death row inmates – over 140 of them so far.
A final effect of Europe's activism may be in US legal norms. The American jurisprudence of death pins constitutional protection on "evolving standards of decency" and relies on what the states are doing as primary evidence of what those standards of decency are. The more states walk away from the death penalty, the more likely the US supreme court will at some point turn the lights out on America's machinery of death. A final effect of Europe's activism may be in US legal norms. The American jurisprudence of death pins constitutional protection on "evolving standards of decency" and relies on what the states are doing as primary evidence of what those standards of decency are. The more states walk away from the death penalty, the more likely the US supreme court will at some point turn the lights out on America's machinery of death.
Historically, the death penalty has been the epitome of American exceptionalism and isolationism. In the wake of Europe's lethal injection drug boycott, America can take steps to maintain its exceptionalism. It can double-down on death, no matter what the EU does. If it cannot inject inmates, it can hang them. Or shoot them. Or electrocute or gas them.Historically, the death penalty has been the epitome of American exceptionalism and isolationism. In the wake of Europe's lethal injection drug boycott, America can take steps to maintain its exceptionalism. It can double-down on death, no matter what the EU does. If it cannot inject inmates, it can hang them. Or shoot them. Or electrocute or gas them.
But the same is not true for American isolationism on the death penalty. That is gone for good.But the same is not true for American isolationism on the death penalty. That is gone for good.
A perfect storm is now swirling around capital punishment in America, and it is a storm that Europe has had a strong hand in creating. Granted, it likely won't affect states where the death penalty is deeply entrenched. But six US states have abolished the death penalty in the last seven years, and its legitimacy in the United States is evaporating with every execution gone horribly wrong. For other governors leaning toward a humane solution to this increasingly inhumane problem, last Tuesday night's disaster in Oklahoma may just be enough bad publicity to tip the scales. As Brendan Behan said, there's no such thing as bad publicity – except your own obituary.A perfect storm is now swirling around capital punishment in America, and it is a storm that Europe has had a strong hand in creating. Granted, it likely won't affect states where the death penalty is deeply entrenched. But six US states have abolished the death penalty in the last seven years, and its legitimacy in the United States is evaporating with every execution gone horribly wrong. For other governors leaning toward a humane solution to this increasingly inhumane problem, last Tuesday night's disaster in Oklahoma may just be enough bad publicity to tip the scales. As Brendan Behan said, there's no such thing as bad publicity – except your own obituary.