“An Antidemocratic and Largely Foreign Conspiracy”

In my last post, which considered whether abolitionist sentiment should matter to the Justices’ decision-making in Glossip, I noted that part of that sentiment (a good deal of it, actually) is coming from nation-states that have long been abolitionist.  Here I’ll expand on that theme, and connect it up with the title of my post, which unfortunately comes from one of the amicus briefs in Glossip.

As most people know, Europe is almost entirely abolitionist (indeed, in all of Europe, only Belarus still has the death penalty, and it’s so close to Moscow that it’s hard to think of it as Europe).  And Europe isn’t abolitionist-light—it’s as committed to abolitionism as the United States is to its death penalty.  Abolishing the death penalty is a requirement for EU membership, and in 1998, the EU made worldwide abolition a centerpiece of its human rights agenda, declaring that it would “work towards universal abolition of the death penalty as a strongly held policy view agreed by all EU member states.” 

These guys are not fooling around.  It was the EU that sponsored UN Resolution 62/149, adopted by the UN General Assembly in 2007, which declared that “the death penalty undermines human dignity” and called for all nation-states to institute a moratorium as a first step towards abolition.  The vote was 104 nations in favor, 54 against, with the United States leading the dissenters.

The point here is that European abolitionism has been around for a long time, a lot longer than the current snafu over lethal injection drugs, and these countries are Dixie Chicks serious about abolishing the death penalty worldwide.  So when the market for thiopental experienced upstream supply problems, and when thiopental’s producer (Hospira) moved its production plant from North Carolina to Italy for reasons that had nothing to do with any of this, is it any wonder that Italy, then Great Britain, and then the EU as a whole, saw an opportunity, and seized it, to put the damper on death penalty drugs?

For decades, EU governments had tried, and largely come up short, to influence the United States with their anti-death penalty views.  To borrow a line from my paper with Jim Gibson, it turns out that the best way for European governments to export their abolitionist norms was to stop exporting their drugs.

What’s wrong with that?

That brings me to the Criminal Justice Legal Foundation’s amicus brief in Glossip.  I originally wanted to do the Harry Potter “It that must not be named” thing—my attempt at that was yesterday’s post.  But that approach has proven unsatisfactory.  I’ve got to name it, because it named me, or rather the paper I just co-authored—all under the heading “The United States must not allow its justice to be obstructed by an antidemocratic and largely foreign conspiracy.”  Wait, what?

That’s right, that section of the brief cites the paper, and quotes it, to show that foreign governments are “meddling” in our business—our execution business, which it alleges is of “no legitimate concern of European governments.”

I dissent.  We are a sovereign state and so yes, we can execute if we please.  If we can’t get the drugs to inject someone to death, we can hang them.  Or shoot them.  Or electrocute or gas them.  We can double-down on death, no matter what the EU does.

But those European countries are sovereign states too, and they aren’t “meddling” in our affairs when they make their own decisions in response to ours.

The EU doesn’t have to sell us its drugs.  We’re not entitled to them.  It’s a free country (or countries, I suppose).  If European countries, or nation-states anywhere else, want to use export controls to express their moral disapprobation of the death penalty, they can do that—just like we’ve done it countless times when other countries do things we find morally repugnant. 

The CJLF amicus brief states in a footnote when citing the paper that “Amicus does not endorse the views of the authors, who seem to think that European government meddling in American criminal justice policy is a good thing.”  

For the record, we don’t take a stand on whether these developments are a good thing, or a bad thing; they’re just a thing.  I can say, however, that I don’t endorse the views of amicus any more than it endorses mine. 

The US is sovereign, but no more sovereign than other nation states.  Rather than fuming about foreigners meddling, we’d be better served to think about execution methods that don’t require the cooperation of nations that don’t want us to execute.