Debates regarding corporate responsibility and human rights have centered on claims that corporations or their contractors are directly violating certain human rights or assisting states in doing so. Whether in the extractive industries (Shell in Nigeria), the apparel industry (the Bangladesh apparel factory collapse), or even software (Google searches in China), many civil society groups see the multinational corporation as a right-violator or at least rights-violation enabler. But a recent episode in Arkansas – the home of Bill Clinton and the 1957 school desegregation crisis, but also one of the 31 U.S. states with the death penalty — shows corporations taking the offensive for human rights.
Over the last decade, the manufactures of the drugs involved in lethal injections have adopted policies asserting that they will not sell their drugs for that purpose. A typical example is the 2015 policy of Akorn:
“Akorn strongly objects to the use of its products to conduct or support capital punishment through lethal injection . . . . To prevent the use of our products in capital punishment, Akorn will not sell any product directly to any prison or other correctional institution and we will restrict the sale of known components of lethal injection protocols to a select group of wholesalers who agree to use their best efforts to keep these products out of correctional institutions.”
The companies’ commitment to avoid participation in lethal injection extends to creating an internal protocol in their sales practices, with a goal of keeping the drugs out of the hands of the executioners.
The stakes were raised in Arkansas in April when McKesson Medical-Surgical Inc. sued the state, seeking a preliminary injunction to obtain the return of chemicals it sold to the state corrections department or a guarantee that they would not be used for executions. McKesson asserted that prison officials deceived the company into selling them one hundred vials of vecuronium bromide, a chemical that causes paralysis during executions. McKesson claimed that the officials called a sales representative they knew and that McKesson filled the order without knowing their ultimate use. The legal claims were based on state contract law as well as a violation of the takings clause in the Arkansas Constitution. The next day, a judge in Pulaski County (which covers Little Rock) issued the preliminary injunction. The state immediately appealed the ruling to the state supreme court, which stayed the injunction. Over the next week, Arkansas executed four prisoners using the three-drug method that includes vecuronium bromide, although the source of the drug actually used remains publicly unavailable.
McKesson’s legal case may have sounded in Arkansas contract law, but it had human rights written all over it. Here are the key international legal issues – and some moral aspects — and implications of the case: