High Court hears arguments on UK government decision not to ban further exports to the United States of execution drug sodium thiopental
November 17, 2010
Reprieve and British lawyers Leigh Day & Co are in the High Court today seeking to prevent further exports to the United States of sodium thiopental, a drug used in lethal injections.
Representing two clients on death row in the US, Edmund Zagorski (pictured) and Ralph Baze, Leigh Day will be arguing that Vince Cable, the Secretary of State for Business Innovation & Skills, was wrong to refuse to place export controls on sodium thiopental.
On 25 October the state of Arizona executed Jeffrey Landrigan. The execution had been delayed by a shortage in the United States of a drug required for execution by lethal injection. When it emerged that Arizona had obtained the drug, the Attorney General of Arizona, apparently to assure the public of the quality of the drug, announced that it had been imported from the UK.
Leigh Day then wrote an urgent letter to Vince Cable asking him to use his powers under the Export Control Act to place an immediate ban on the export of sodium thiopental to the US for use in executions.
On the 1 November, Vince Cable declined to place export controls on sodium thiopental, reasoning that it would place a disproportionate burden on UK businesses wishing to export the drug to the US and arguing that such a step was not justified because the US states could always source the drug from elsewhere in the world.
The Secretary of State’s position sits very uncomfortably with stated British government policy on actively seeking the abolition of the death penalty worldwide and, in particular, in the US. It also seems to fly in the face of the UK’s international law and human rights obligations.
Richard Stein, partner, Leigh Day & Co said:
“Having failed to persuade Vince Cable that it is wrong for the UK to be facilitating the death penalty in the United States, we hope that the High Court will now compel him to exercise the powers of export control which parliament has granted him to prevent just this sort of violation of human rights.”
Reprieve Director Clive Stafford Smith said:
“Why on earth would the Government not issue a temporary ban in exports of Sodium Thiopental to the US, pending resolution of this litigation, given that the drug is virtually never used in the US any more except to execute people? If they fail to take this basic, humanitarian step, the blood of Ed Zagorski and others will be on their hands if the horse bolts while the stable door is open.”
Notes for Editors:
The US has recently run short of Sodium Thiopental, one of the drugs used in the execution protocol. On Monday 25th October, Jeffery Landrigan was executed in Arizona using drugs supplied by a British company – despite a plea for clemency from the judge who sentenced him to death.
The Arizona consignment was sufficient for four executions, so the British company will contribute to three more deaths there. Soon afterwards, the American lawyers for Edmund Zagorski contacted Reprieve with a plea for help: Tennessee was seeking to purchase the drugs to kill Mr Zagorski, apparently from the same British company.
On Thursday 28th October, Reprieve and Leigh Day contacted the Government and asked for emergency measures to be taken to avoid British complicity in Mr Zagorski’s execution. All it would take to prevent the death of Mr Zagorski and others would be for Vince Cable to issue an emergency order regulating its export.
On Monday, November 1st, Mr. Cable responded that the British government would take no such step, because if the US did not get the drug from the UK it would just go elsewhere. Mr. Cable also said he was unwilling to interfere unnecessarily in US-UK trade. On behalf of the FCO, Jeremy Browne took the same line.
On Tuesday 2nd November, lawyers with Leigh Day & Co. filed a judicial review application of the Government’s refusal to lift a hand to prevent British complicity in a series of American executions. The case is particularly urgent because Mr Zagorski’s lawyers have learned that the Sodium Thiopental has not been shipped to Tennessee yet but may leave any day: the anonymous “Sales Agreement”, dated September 30, 2010, indicates that the shipment may take place in November. Ed Zagorski is scheduled to die on 11th January 2011.
Sodium thiopental is one of cocktail of three drugs prescribed for use in lethal injections by US states which retain the death penalty. Sodium thiopental is supposed to anaesthetise the victim before pancuronium bromide is used to paralyse the victim and finally potassium chloride is used to induce a heart attack. Sodium thiopental is bona fide anaesthetic and is included in the WHO list of essential medicines.
However, it is old and has largely been superseded by more modern and efficacious drugs in western countries. Its use in the United States, other than for lethal injections, is confined to a few residual specialist areas. The only producer of the drug in the United States, Hospira, had ceased production due to a shortage of raw ingredients. Hospira has also publicly stated that it did not support the use of its product in lethal injections.
Edmund George “Ed” Zagorski was born on December 27, 1954, in Michigan. He grew up very impoverished in Tecumseh, Michigan. Ed suffered from a learning disability and a bad stutter as a child, both of which he fought to overcome. He never finished high school, but trained to become a boat captain.
Ed was just 28 when he went to jail; he is now almost 56. He is on death row in Tennessee for the killing of two drug peddlers – John Dale Dotson and Jimmy Porter — in a marijuana deal gone bad in 1983. By the time he is set to die – on January 11, 2011 – he will have been awaiting the death penalty for half of his life, 28 years.
The European Court of Human Rights has ruled that forcing a prisoner to wait more than five years for his death is, standing alone, degrading and inhuman punishment. Ed was convicted and sentenced to death based in part upon statements abused out of him.
Physicians for Human Rights (PHR) have described Ed Zagorski’s treatment in the Robertson County jail as “torture”: Arrested in May of 1983, Mr. Zagorski invoked his rights to remain silent and to counsel. The State of Tennessee then placed Mr. Zagorski in a windowless, unventilated 8′ x 8′ steel box.
After fifty two days of near total isolation and sensory deprivation – a period punctuated by an oppressive heat wave – Mr. Zagorski was physiologically compromised and psychologically disturbed. Thirty pounds lighter and despondent, he offered a confession in return for the ability to dictate the terms of his execution.
Subjected to harsh confinement conditions similar to those used for the express purpose of “breaking” pretrial detainees, it is little surprise that Mr. Zagorski’s will was broken. The local Sheriff justified this treatment in part because Ed had attempted suicide in jail. He put Ed in the isolation cell despite a court order forbidding it.
Ed implicated himself simply to put an end to the interminable abuse. Indeed, he was attempting suicide by a more official route. According to the police, “he said, well, I’ll tell you what I’ll do—if you’ll let me pick the type of execution and the day of execution, I’ll confess to these murders.” Typically for the unreliable kind of death sentence that often tarnishes the reputation of the U.S. justice system, significant evidence against Ed was supplied by an informant who had bartered for his testimony, who worked closely with the authorities, and who appears to have taken part in planting incriminating evidence against Ed.
Ed has been under a death sentence for almost three decades despite suggestions that other people had the form, and the motive, to commit the murders. Tormented by his depression, when he was convicted of the crimes, Ed Zagorski just asked to die. Therefore the jurors heard nothing in mitigation of his sentence.
The abuses of his human rights have been ignored by the courts, with the federal appellate courts refusing even to consider most of his claims based on “procedural bars”. The original prosecutors recognized that Ed Zagorski did not merit the death penalty, offering him a sentence of life imprisonment before trial – a sentence that would have allowed him to seek parole in due course.
Ed has been a model prisoner for the past 27 years and he is well-respected by other inmates and prison personnel. In other words, his execution will be wholly pointless. January 11, 2011, is slated to see another “drug deal gone bad”, with the drugs sold by a British company used to kill him – notwithstanding the fact that nobody felt this was a death penalty case to begin with.
Ed’s contact details are: Edmund George Zagorski # 102839, Riverbend Maximum Security Institution, Unit 2, 7475 Cockrill Bend Industrial Blvd., Nashville, Tennessee 37209, USA.
Reprieve, a legal action charity, uses the law to enforce the human rights of prisoners, from death row to Guantánamo Bay. Reprieve investigates, litigates and educates, working on the frontline, to provide legal support to prisoners unable to pay for it themselves.
Reprieve promotes the rule of law around the world, securing each person’s right to a fair trial and saving lives. Clive Stafford Smith is the founder of Reprieve and has spent 25 years working on behalf of people facing the death penalty in the USA.
Reprieve has represented, and continues to represent, a large number of prisoners who have been rendered and abused around the world, and is conducting ongoing investigations into the rendition and the secret detention of ‘ghost prisoners’ in the so-called ‘war on terror.’
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