At 10.26pm on Tuesday October 26th, Arizona executed Jeffrey Landrigan using sodium thiopental manufactured in Great Britain.
While the State was not required to disclose their source for the drug, they did announce that it would be coming from Great Britain in order to dispel any concerns that it was unsafe. The Arizona Chief Deputy Attorney General Tim Nelson said the drug comes “from a reputable place”, and not “a third-world country”. While we would all like to think of a ‘first world nation’ like GB being a ‘reputable place’ – the country of origin provides no greater assurance of the quality of drug without knowing at least who the manufacturer is and if they are sanctioned by said nation.
Landrigan’s attorneys argued that he could be painfully suffocated by the subsequent potions of the lethal injection if the sodium thiopental doesn’t render him unconscious. In Baze v Rees (2008) the US Supreme Court held “It is unconstitutional that, failing a proper dose of sodium thiopental that would render the prisoner unconscious, there is a substantial, constitutionally unacceptable risk of suffocation…and pain from the injection.”
Initially a Federal Judge issued a stay of execution on Monday the 25th, concerned that this drug from an unknown source might not be effective. The stay was upheld by the 9th Circuit US Court of Appeals on Tuesday morning as they implied that without further information about the drug the defense would be unable meet the burden of establishing that use of the drug might cause a "substantial risk of serious harm". However, the United States Supreme Court, by a slim majority of five to four, lifted the stay just after 7pm.
It was the first decision for Justice Elena Kagan, the US Supreme Court’s newest member. She found herself in the minority – voting to uphold the stay of execution. She was in good company with Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor. I think its particularly interesting that not only did the two newest members of the bench vote to uphold the stay, but also all the female members of the bench. (I’d like to note further that in the case of Teresa Lewis - the woman recently executed, the only women on the bench at the time dissented from the majority and voted to grant her appeal. In short – I think we need more women on the United States Supreme Court Bench).
The US Supreme Court determined the Federal Judge had erred in his reasoning, because Baze v Rees sets a high standard of proof that an execution method would cause harm. Now who am I to say a bench of nine well respected, experienced and knowledgeable judges are wrong – so instead I’ll limit it to: the five judges who maintained this position were wrong. I can’t help but wonder how long it has been since Anthony Kennedy, Clarence Thomas, Samuel Alito, Antonin Scalia and John Roberts, read the wording of the Baze v Rees decision. To me, their intention in that case was quite different to what they claim today.
“There is no evidence in the record to suggest that the drug obtained from a foreign source is unsafe. The district Court granted the restraining order because it was left to speculate as to the risk of harm… Speculation cannot substitute for evidence that the use of the drug is ‘sure or very likely to cause serious illness and needless suffering.’” Said the Supreme Court. I suppose they determined the drug was ‘innocent until proven guilty’. If speculation was their concern they should have required the necessary information from the State in order to reach an informed decision. Without that information, is it not better to err on the side of safety?
You may also recall from my prior blog regarding drugs that Judge Fogel had stayed Albert Greenwood Brown Jr’s execution on question of California’s execution protocols. It’s unlikely now that any protocol will fail under this new ‘sure or very likely’ standard, and Fogel will be forced to allow executions to proceed.
“There was no showing that the drug was unlawfully obtained, nor was there an offer of proof to that effect.” The US Supreme Court noted. However they had also ruled that the State were not required to disclose the supplier of the drug because such information fell under state law concealing the identities of those involved in executions. How then could the defense possibly have a hope of prove that the drug was unlawfully purchased if they did not even know from whom the purchase was made?!
The manufacturer of the drug has since been revealed in The Guardian: Archimedes Pharma UK. They are the only licensed manufacturer of sodium thiopental in Britain, though they specialize in pain relief, and developed PecFent a breakthrough in relief for cancer pain. The company claim that once they have produced the drug they give it to a supplier have no further control over or knowledge of what happens to it. “The company neither exports the product to the US for any purpose, nor is it aware of any exports of the product,” a spokesperson said.
The Sodium Thiopental produced by Archimedes “is used as an anesthetic, in convulsive disorders and for reducing intracranial pressure,” said the Medicines and Healthcare Products Regulatory Agency (MHRA) – the agency responsible for licensing Archimedes. MHRA must be informed and give approval before the drug can be exported to Europe by a manufacturer or wholesaler, but the same restrictions do not exist for exports beyond Europe.
It appears California has also bought a batch of the same sodium thiopental (it has the same expiration date as that which Arizona used) in order to proceed with executions which had been stayed due to the lack of the drug as usually provided by Hospira.
Although we cannot put upon the manufacturer a legal burden to oversee how their product is used, just as we cannot hold a pharmacist responsible for how a patient uses prescribed drugs, it seems to me that the company should be more concerned about how such a lethal drug is dealt with.
Amnesty International is concerned that this incident “raises serious questions about whether there are proper controls on equipment that could be used to torture and kill.” And they have called for tighter EU controls to prevent the drug being exported again for use in executions. The European Union has resolved to work towards the universal abolition of the death penalty and prepared Council Regulation (EC) No 1236/2005 which concerns “trade in certain goods which could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment.” However the regulation means little unless they intend to fully implement it and reprimand and penalize those who break it.
And while the EU needs to enforce their regulations, so do their members. The British Government must at least take a visible stand against products from their country being used to execute people. To ignore it is to consent to it. How can a country which holds a firm position against the death penalty permit anyone within their jurisdiction to profit from executions?
If Archimedes do not know which of their suppliers sold the drug to the States, they can at least provide a complete list of all their suppliers which handle sodium thiopental. Under enough pressure from Amnesty, the EU, the British Government, the media etc, perhaps they will have no other choice but to hand over such a list. The British Government and/or the EU could then conduct an investigation to determine Arizona’s source and hold them accountable.
On a side note regarding the execution: Landrigan was convicted of the 1989 murder of Chester Dyer. His defense team said that preliminary DNA results disclosed last week indicated that blood at the crime scene came from Dyer and another person which was not Landrigan. Prosecutors explained this with the argument that another person participated in the killing. There is also evidence that Landrigan is severely brain damaged, probably a result of his mother’s drug abuse during pregnancy. The US Supreme Court ruled that the quality of Landrigan’s “alleged mitigation evidence” was not good enough to make “a colorable claim” that the trial judge would not have sentenced him to death. However, the Judge who sentenced Landrigan to death has sworn an Affidavit saying that he would not have done so had he known about Landrigan’s mental defects.
Did Britain inadvertently aid the wrongful execution of a possibly innocent man?
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