Lethal Injection Debacle & European Union Strong-Arming

May 13, 2014

legal injection chair executionThe Oklahoma state attorney general recently announced a 6 month delay in administering capital punishments after the bungled execution of Clayton Lockett. Prior to his execution, Lockett’s lawyers brought an action challenging the constitutionality of a 2011 secrecy statute, which prohibited the disclosure of information regarding the specific drug cocktail and source of drugs used in the lethal injection protocol. The district court ruled the statute unconstitutional, as a violation of the right to access to the courts but, the Oklahoma Court of Criminal Appeals, just a month before the scheduled executions, denied a stay of execution.

The denial effectively meant that the secrecy law’s constitutionality would not be presented to the Oklahoma Supreme Court. In response, the Oklahoma Supreme Court took the unprecedented move of ordering a stay of execution themselves, despite the Appellate Court’s refusal. The stay was short-lived though, and was lifted just days later. The execution that followed was not necessarily a surprise to Lockett’s attorneys, who raised concerns regarding to two previous problem-plagued executions conducted with similar drug cocktails.

The Case Law

For the Locket cases, see the Court of Criminal Appeals decision, Lockett v. State, 2014 OK CR 3 (April 18, 2014). The Oklahoma Supreme Court’s subsequent stay of execution is at Lockett v. Evans, 2014 OK 33 (April 21, 2014), and the lifting of the stay of execution is at Lockett v. Evans, 2014 OK 34 (April 23, 2014).

The Statute

The actual statutory citation for the “Secrecy Act” is 22 Okl.St.Ann. § 1015(B), which states:

“…The identity of all persons who participate in or administer the execution process and persons who supply the drugs, medical supplies or medical equipment for the execution shall be confidential and shall not be subject to discovery in any civil or criminal proceedings. The purchase of drugs, medical supplies or medical equipment necessary to carry out the execution shall not be subject to the provisions of the Oklahoma Central Purchasing Act.”

The EU Documents

The controversy over this “secrecy” provision stems from a shortage of the drugs previously utilized in lethal injection executions in the United States. Pharmaceutical companies have shied away in recent years from making the drugs historically used (and approved of) in lethal injections. At the same time, the E.U. has worked to curb the export of drugs for use in the execution of prisoners through legislation. So, U.S. States who utilize the death penalty have been forced to find alternatives, often from unregulated compounding pharmacies.

This history is described in Dr. Christian Behrmann & Dr. Jon Yorke’s, The European Union and Abolition of the Death Penalty, 4 NO. 1 Pace Int’l L. Rev. Online Companion 1 (2013). The article contains a section on “Prohibition of the trade in execution technologies” discussing the EU’s strategy in preventing trade in equipment and drugs for the purpose of being used in human execution. The article cites to several EU regulations in the footnotes. These regulations can be found on WestlawNext under International Materials > European Union.

Council Regulation (EC) No. 1236/2005

… Any export of goods which have no practical use other than for the purpose of capital punishment or for the purpose of torture and other cruel, inhuman or degrading treatment or punishment, listed in Annex II, shall be prohibited, irrespective of the origin of such equipment…

Council Regulation (EC) No 1236/2005 of 27 June 2005 concerning trade in certain goods which could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment, Celex No. 305R1236

The related “security export controls” can be found here: