Supreme Court’s Death Debate Ignores Obvious Alternative To Lethal Injections

WASHINGTON, D.C. (March 30, 2015): Despite spirited debate among the Supreme Court’s justices about the constitutionality of a particular lethal injection protocol, there seemed to be reluctant agreement that it may be unconstitutional if there are humane alternatives with substantially less risk of causing pain.

For example, Chief Justice Roberts noted to one of the opponents of lethal injections before the court that “you have not suggested an alternative that is more humane.”

Fortunately, there is a simple alternative which has been used dozens if not hundreds of times in Oregon, using a drug which is even covered by Medicare Part D so it unlikely to prove difficult to obtain.

Lethal Injections

Many of the problems associated with using drugs to execute murderers occur because the drugs are being injected.  These many problems include finding a suitable vein, positioning the needle, making sure the catheter is properly located, being sure it doesn’t come out or clog, etc.

Indeed, one of the situations raised during oral arguments was Oklahoma’s apparent bugled attempt to executive Clayton Lockett with midasolam.  He reportedly kicked, grimaced and survived for over 40 minutes once the drugs were injected, and a state investigation blamed the problem on the execution team’s improper insertion of the needle during the procedure.

Such problems may foreseeable occur whenever lethal drugs have to be injected, suggests public interest law professor John Banzhaf, noting that some mistakes are inevitable, and the added problem of having to find people with sufficient  medical training and experience competent to start and maintain intravenous lines who are not inhibited from participating in executions by ethical and professional guidelines.

Another problem with injections is foreseeable reactions from the very rapid infusion and absorption of drugs into the body.  This may have caused many of the problems complained about, including Justice Kagan’s remark that the condemned may being “burned alive from the inside.”

Related problems also include locating sufficient quantities of injectable drugs now that many drug companies are trying to prevent them from being used in executions, and a federal judge who has barred the importation of many of those drugs from abroad because the FDA has not found them to be both safe and effective to kill people – an obvious contradiction for drugs used in executions, suggests Banzhaf.

Fortunately, there appears to be a simple, easy, and inexpensive means to avoid many of these problems, including drug company restrictions on the sale of injectable drugs, expiration dates on injectable drugs now being faced in several states, and the so-called “botched executions” involving injecting drugs cited by death penalty opponents.  The simple answer is putting the condemned on the pill, says Banzhaf.

Using drugs for capital punishment

Since most of the concerns of using drugs for capital punishment involve problems with drugs which are injected, an obvious alternative for possibly meeting many constitutional problems would be for states to simply use pills rather than injections to administer drugs such as barbiturates whose lethal properties are well controlled, well known, and very clearly established.

“Providing a condemned man with barbiturate pills to cause a quick and painless death is well tested, established, and accepted, does not require any trained (much less medical) personnel, and could avoid the many medical problems with injections, as well as restrictions on injectable drugs imposed by manufacturers because of ethical and moral concerns,” suggests Banzhaf.

Barbiturate pills are approved for certain medical uses, and are even covered by Medicare Part D.   So the common practice of prescribing drugs for “off-label use” – using a drug approved for one purpose to do something else – would seemingly permit states to use barbiturate pills in executions, says Banzhaf.

Oregon’s death with dignity program helps terminally ill patients end their lives simply and painlessly by providing prescriptions for Seconal pills which the patient takes himself.  “If this method is appropriate for totally innocent and often frail elderly people seeking a quick and painless death with dignity, it should be more than good enough for condemned murderers,” Banzhaf argues.

The use of lethal injections without a choice

If the prisoner refuses to take the pills and/or cannot be forced to, or only pretends to swallow them, he can hardly complain about unconstitutional “cruel and unusual punishment” if the state thereafter has no choice but to use lethal injections, with all the possible risks involved.   To paraphrase an old legal saying, the condemned had the key to his own freedom from pain in his own hands, says Banzhaf.

Since only a few grams of certain barbiturates are necessary to cause death, and pills are apparently much harder for drug companies to restrict than liquid injectable drugs, the amount necessary to cause a quick and painless death might be administered in several easy-to-swallow pills.

Concerns that the convict would fill his stomach with food to slow the absorption of the ingested drug aren’t valid because the condemned are usually kept under constant watch at least 24 hours before the execution, and because any such ploy would likewise make the condemned himself responsible for any pain he might suffer if a subsequent drug-injection execution became necessary as a result.

Likewise, since oral administration takes much longer for the drugs to reach the system than injections, and works far more slowly, this method of capital punishment is much less likely to trigger the sudden and sometimes violent reactions lethal injections have sometimes been said to cause.

For example, when Oklahoma executed Clayton Lockett, he reportedly writhed and grimaced during his 43-minute drug-injection execution.  Several months later, a prisoner in Arizona took nearly two hours to die, gasping and snorting until he was finally pronounced dead.  In similar circumstances, an Ohio inmate reportedly also gasped and choked from the injections.

Using well-known, more readily available pills rather than injections for executions might mute many constitutional objections, avoid the major problems with lethal injections highlighted by death penalty opponents, eliminate the need for medically trained personnel (who often refuse on ethical and/or professional grounds) to participate in executions, and have many other advantages, suggests Banzhaf, who has not taken a public position on capital punishment itself.

Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
2000 H Street, NW
Washington, DC 20052, USA
(202) 994-7229 // (703) 527-8418
http://banzhaf.net/ @profbanzhaf