The Guardian has reported an extraordinary attack on Reprieve by the Texas Department of Criminal Justice (TDCJ). Reprieve is accused of "'intimidation and commercial harassment' of manufacturers of medical drugs used in lethal injections". We are "authoritarian ideologues who menace and harass private citizens who decline to submit to Reprieve's opinion on the morality of capital punishment by lethal injection." The Guardian is correct that this is "astonishingly vivid language"; it is also defamatory nonsense, and I would like to set the record straight.
This week, I was in Copenhagen, meeting with the Ulf Wiinberg, the CEO of Lundbeck, a Danish pharmaceutical company. Unbeknown to Wiinberg, some months back, the TDCJ had got its hands on a drug manufactured by Lundbeck, pentobarbital, and wanted to use it to kill people. Wiinberg and his colleagues had been horrified to learn of this. Their corporate emblem is a starfish, and he elaborated to me on the ancient Chinese tale behind it: an old man, picking up starfish and tossing them back into the sea, was confronted by a cynic: "Why bother? There are thousands, and many will die." He replied: "To this single starfish, it is the difference between life and death."
Lundbeck's corporate purpose is to help the starfish into the water – to promote health, and save lives. The TDCJ would rather snatch a healthy starfish from the sea and put it on dry land to die. There is the difference. It is not Reprieve that "intimidates" Lundbeck; it is the TDCJ that wishes to use Lundbeck's drug in a manner antithetical to its purpose, without the basic good manners that might have prompted a call to Wiinberg to forewarn him, or ask for consent.
Indeed, the TDCJ is not just rude; it is itself a major actor in a broader pattern of illegality and harassment. The TDCJ suggests that Reprieve has somehow acted improperly with respect to Dream Pharma, the UK drug company that surreptitiously exported sodium thiopental to the US for executions from its office in a driving school in Acton. Yet, by a convenient coincidence, this Tuesday, federal district judge Richard Leon issued an order against the US Food and Drug Administration, ruling that it was the US government – not Reprieve – that had acted illegally in that case.
I have appeared before Judge Leon several times, and he has a reputation as a conservative jurist. He wrote in his judgment:
"In the final analysis, the FDA appears to be simply wrapping itself in the flag of law enforcement discretion to justify its authority and masquerade an otherwise seemingly callous indifference to the health consequences of those imminently facing the executioner's needle. How utterly disappointing!"
It does not end there. Nebraska recently wanted to import drugs from India to kill people. An employee of the state's department of corrections felt – correctly, as Judge Leon later underlined – that this would be illegal. She was fired for standing up for what is right and proper, and has now sued for wrongful dismissal.
Yes, there has been "intimidation"; yes, indeed, there are "authoritarian ideologues who menace and harass private citizens who decline to submit to [their] opinion on the morality of capital punishment by lethal injection". Those who wrote these words for the TDCJ will see their reflection in the mirror before them.
This originally appeared in The Guardian, 29 March 2012