Death Penalty Drugs and the International Moral Marketplace

60 Pages Posted: 16 Nov 2014 Last revised: 15 Mar 2018

See all articles by James Gibson

James Gibson

University of Richmond School of Law

Corinna Lain

University of Richmond - School of Law

Date Written: February 20, 2015

Abstract

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.

Keywords: death penalty, international law

Suggested Citation

Gibson, James and Lain, Corinna, Death Penalty Drugs and the International Moral Marketplace (February 20, 2015). Georgetown Law Journal, Vol. 103, 2015 (Forthcoming), Available at SSRN: https://ssrn.com/abstract=2524124

James Gibson

University of Richmond School of Law ( email )

203 Richmond Way
Richmond, VA 23173
United States
804-287-6398 (Phone)
804-289-8683 (Fax)

HOME PAGE: http://law.richmond.edu/faculty/jgibson/

Corinna Lain (Contact Author)

University of Richmond - School of Law ( email )

28 Westhampton Way
Richmond, VA 23173
United States

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