Helping an Execution Is a Bad Look for a Drugmaker

(Bloomberg Opinion) -- On the surface it sounds like a sick joke. The German drug manufacturer Fresenius Kabi is suing to block an execution in Nebraska — not because it opposes capital punishment, but because it would be bad for the company’s public relations for its drugs to be used to kill. It’s not the first time. Other drug companies have also tried to block executions using their products for similar reasons.

A federal district judge rejected Fresenius’s suit Friday, but the company has appealed. Regardless of whether the Nebraska execution, scheduled for Tuesday, is delayed or halted, the effort is worth examining.

There is something morally bizarre, even horrifying, about the idea that a human being should live or die based on the PR concerns of a company thousands of miles away. Yet these efforts demonstrate what you might call the banality of good: Their official worries are based on ordinary corporate profit, but their actions nonetheless play a meaningful role in the long, slow process of reducing and maybe ultimately eliminating executions in the U.S.

Lethal injection is just the latest in a long string of efforts to make capital punishment more “humane,” a dubious aspiration that had its European birth sometime in the 18th century and is a classic product of Enlightenment.

Humane execution is a kind of paradox: We want to end a person’s life as a punishment, but we want to do so with minimal pain for the subject and minimal horror for the public.

In the European Middle Ages, this paradox didn’t exist. Execution was generally intended to create spectacle and convey moral condemnation. Pain and suffering were part of the equation.

Burning witches was biblically inspired (if not strictly biblical). Drawing and quartering, a particularly horrible practice, was the punishment for treason against the crown. Hanging, the prescribed English punishment for ordinary felons, often had a torture component when the drop of the gallows wasn’t long enough to break the subjects’ necks and they strangled slowly instead.

The guillotine, named for the French doctor Joseph-Ignace Guillotin (1738-1814) who helped create it, was popularized during the French Revolution as a “humane” method of execution appropriate to an enlightened age. In its aftermath, executions have reflected new technological innovations, from electricity to poison gas.

Seen in this historical light, the use of drugs to paralyze and kill convicted murderers should come as no surprise. We live in an age of big pharma and trust in medications. No wonder we think drugs are a solution to the execution paradox.

Enter the death-penalty abolitionists. Many, probably most, abolitionists think that it is always wrong to take a human life by execution — the view recently adopted for the Catholic Church by Pope Francis.

Yet because the strong abolitionist argument has not had the moral force to convince everybody, death-penalty opponents have long relied on various pragmatic arguments in public and in the courts.

When the U.S. Supreme Court in 1972 declared what turned out to be a temporary moratorium on all executions, it didn’t hold that capital punishment was inherently wrong. In fact, the justices in the case of Furman v. Georgia couldn’t agree on a single rationale for why the death penalty was cruel and unusual. The key element in most of their opinions was the arbitrariness of how the death penalty was applied, with evidence drawn from racial disparities.

Death-penalty opponents have also focused on the fallibility of the judicial system. Successful attempts to show that some death-row prisoners were actually innocent have undoubtedly contributed to the gradual decline of the number of executions in the U.S. in recent decades.

That brings us to the European drug companies. They assert, accurately enough, that capital punishment is outlawed in the European Union. And they say that the public climate of condemnation there gives them a reason to intervene in U.S. courts. Fresenius also says that neither it nor its authorized distributors provide drugs for executions, so Nebraska’s supply must have been obtained without its authorization. The company’s strongest argument is probably that mishandling of the drugs might hamper their effectiveness.

Companies like Fresenius aren’t lying when they say they worry about their reputations. They are responding to public pressure brought on them by abolitionists, who are themselves trying to come up with any creative angle to block executions.

Yet the companies don’t want to take a firmly moral stand against the death penalty, presumably to avoid creating further public controversy and perhaps also to make their claims seem somehow more valid.

The upshot is that the companies find themselves in the strange position of insisting in court filings that they don’t care about matters of life and death, but only about the bottom line.

That’s not a great look for Fresenius, a German company that was founded in 1912 and flourished through World War II.

But advocates seeking social change must use all the tools at their disposal to get it. That includes the banal self-interest of German drug manufacturers. At least it’s being invoked as a force for good.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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