Capital Punishment: the Business of Death

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On Tuesday I was invited on the TV show The Stream on Al Jazeera to discuss the recent rise in executions in the Middle East, despite strong evidence from the United Nations and organisations such as Amnesty International that the use of the death penalty is gradually decreasing worldwide, year after year. In another post on Jurist I focused specifically on the death penalty in Iraq and suggested a strategy to limit the number of executions there.

During the show, the main guest (Eric Goldstein from Human Rights Watch) and I responded to the usual arguments advanced by those who favour the death penalty: that victims of violent crimes deserve revenge, that the death penalty is a strong deterrent and that religious considerations require Islamic (or for that matter Christian) states to retain it.

One area which was not touched upon during the show has to do with the business of death, in other words the sale of goods used by states to kill people and in particular the sale of lethal injections drugs. This is a complex legal and moral issue, which brings together my two favourite topics, the death penalty and business and human rights.

The issue came to the fore last year when Danish pharmaceutical company Lundback Inc. requested that US states stop using one of its products, a barbiturate called Nembutal ®, in the process of putting people to death. Naari AG, a Swiss company, has recalled its own barbiturate from the US market after finding out that it was being used to kill prisoners sentenced to death.

The legal questions behind all this are fascinating. By selling these drugs the companies do not violate domestic law in the US since executions are legal, at least in certain states. In the technical sense, they do not violate the law of the country in which they are registered either, as all they do is making and selling the drug which has real medical uses. The companies mentioned above did not even know what the drug was used for. Holding the companies liable for complicity in the death of prisoners would be unfair to the companies and frankly quite a stretch. Yet, in Europe capital punishment is viewed as an outright violation of human rights and the companies have made clear that this is how they view it too.

In this context, in 2011 the European Union issued regulations to prevent EU countries from selling drugs to be used in lethal injections altogether as part of the EU policy against the death penalty. This is following the lead of the UK who had unilaterally taken the same decision.

The fact that some companies are voluntarily refraining from making money in this area and that the EU has stepped in has resulted in a current shortage of drugs in the United States which could prevent upcoming executions to take place. For me, it is great to see companies having initiated this movement (though arguably under pressure from their European customers) and taking strong moral stands on such an important and symbolic human rights question.