Tuesday, November 25, 2014

Death Penalty Drugs and the Transmission of Human Rights Norms


As widely reported in the media, states across the U.S. are experiencing severe shortages of death penalty drugs, with supply falling far short of demand.  Texas, for example, with 317 people on death row, has only two doses remaining of sodium thiopental, a key death penalty drug.  As also widely reported, the shortage can be directly traced to the European Union's ban on exporting drugs used for execution -- a policy adopted nine years ago by the EU in a deliberate move to support abolition of the death penalty worldwide.

Exploring this development in depth, an article recently posted on SSRN connects the dots to argue that international human rights norms are at its core, albeit transmitted through the market rather than through usual international institutions.  The article, by James Gibson and Corinna Lain, both of the University of Richmond School of Law, is Death Penalty Drugs and the International Moral Marketplace, forthcoming in Georgetown Law Journal, v. 103 (2015).  The abstract follows:


Across the country, executions have become increasingly problematic as states have found it more and more difficult to procure the drugs they need for lethal injection. At first blush, the drug shortage appears to be the result of pharmaceutical industry norms; companies that make drugs for healing have little interest in being merchants of death. But closer inspection reveals that European governments are the true instigators of the shortage. For decades, those governments have tried — and failed — to promote abolition of the death penalty through traditional instruments of international law. Turns out that the best way to export their abolitionist norms was to stop exporting their drugs. 

At least three lessons follow. First, while the Supreme Court heatedly debates the use of international norms in Eighth Amendment jurisprudence, that debate has largely become an academic sideshow; in the death penalty context, the market has replaced the positive law as the primary means by which international norms constrain domestic death penalty practice. Second, international norms may have entered the United States through the moral marketplace, but from there they have seeped into the zeitgeist, impacting the domestic death penalty discourse in significant and lasting ways. Finally, international norms have had such a pervasive effect on the death penalty in practice that they are now poised to influence even seemingly domestic Eighth Amendment doctrine. In the death penalty context, international norms are having an impact — through the market, through culture, and ultimately through doctrine — whether we formally recognize their influence or not.


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