European pharmaceutical companies have stopped supplying ingredients for lethal injections. The halt in this supply has several consequences, both positive and negative. On the one hand, there is a decrease in executions in the United States. On the other hand, the cessation of supplying ingredients for lethal injections leads to the search for alternative methods to carry out executions. These methods are often inadequate, resulting in an increase in botched executions. We spoke with Merel Pontier, alumna of Erasmus School of Law and a criminal defense attorney in Texas. She talks about the liability of prisons and pharmaceutical companies in failed executions, the decline in executions in the United States, and why the death penalty should no longer exist.
In the United States, the death penalty can be abolished in states through the criminal laws applicable in those specific states. At the federal level, the death penalty has not been abolished. The federal government cannot force states to abolish the death penalty; only the U.S. Supreme Court can do so. Thus far, the Court has not decided that the death penalty is unconstitutional.
Where does the liability lie in a failed execution?
Both the prison system and the pharmaceutical company supplying the execution drugs can be held liable. "Initially, the prison system is sued for a botched execution because it is often due to the incompetence of the prison staff. Executions are not carried out by doctors but by prison guards," Pontier explains. Another reason why the prison system is often held liable is that botched executions result from the prison system's choice to use drugs that are unsuitable for an execution.
A notable lawsuit was filed by the family of Dennis McGuire. In 2014, the family sued the pharmaceutical company Hospira instead of the prison system. Hospira had supplied the drugs midazolam and hydromorphone, which led to McGuire's torture. It took 25 minutes for McGuire to die. During the execution, he repeatedly gasped for air and made snorting sounds. Holding the other party liable for violating the United States Constitution occurs through a civil lawsuit, in this case, under the Eighth Amendment, which prohibits cruel and unusual punishment. Pontier says, "These types of lawsuits are difficult to win because the relatives must prove, for example, that McGuire's snorting sounds just before his death were directly linked to the execution drugs and that this made the execution cruel. Additionally, it must be proven that Hospira knew that the state of Ohio, where the execution took place, was going to use their drugs for execution and still sold them."
European ban on supplying drugs for executions to the United States
The European Union decided in 2011 and 2012 that pharmaceutical companies in the European Union may not supply drugs to American prisons if they are used for executions. At that time, executions were still carried out with three drugs, drugs that are also used in euthanasia, for example, in the Netherlands. Pontier explains, "After this ban, many states faced a problem and resorted to drugs that are actually not suitable for executions, such as midazolam, or other execution methods, such as the firing squad and the electric chair. Since then, the number of executions in the United States has decreased, but the number of botched executions has increased."
A decrease in executions
In the United States, the number of executions decreased from 52 executions in 2009 to 24 executions in 2023 over fifteen years. Investigations by journalists have shown that in recent years, since European companies no longer supply drugs for executions, states have turned to compounding pharmacies. These are small, often local, companies that produce customized medication for individual patients. These compounding pharmacies are largely unregulated in the United States, making their drugs less reliable and increasing the risk of painful executions.
States also simultaneously enact so-called secrecy laws. These laws allow the government to disclose any information about the pharmacy from which they obtain the drugs. "This means that no control is possible. Texas, for example, has such a law."
Although the death penalty is less frequently imposed, there are fewer executions, and some states, like Louisiana, have decided to stop executing altogether; many states that still execute have switched to unsuitable drugs. "As a result, there are more frequent botched executions," Pontier says.
Wrongful executions: a far too high number
On why the death penalty should be abolished, Pontier gives the following answer: "Even if only one person is wrongfully executed, that should be reason enough to abolish the death penalty. After all, an execution can never be undone, but a judicial error can. Unfortunately, there has not been just one wrongful execution in the United States. I am working with other lawyers on a project to identify cases of people who were likely wrongfully executed. In Texas alone, we have identified over 80 individuals." Pontier indicates that more research is needed to arrive at a reliable number but estimates that the rate of wrongful executions in Texas is around 10 to 15 per cent. Pontier continues, "A far too high number. For those who support the death penalty, I would like to ask: how many innocent people may be executed to maintain this punishment? Because the question is no longer whether innocent people have been executed, but how many."
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