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110 Murderers Spared Execution, But There’s A Remedy

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110 Murderers Spared Execution, But There’s a Remedy; This Follows a “Year of Botched Executions” and a Key Ruling

Murderers Spared Execution

WASHINGTON, D.C. (January 25, 2023) – Arizona is sparing some 110 murderers from being executed while it studies the many problems it and other states have experienced with using lethal injections to carry out sentences of death.

As Democratic Gov. Katie Hobbs explained her decision: “Arizona has a history of mismanaged executions that have resulted in serious questions and concerns about [its] execution protocols and lack of transparency.”

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Arizona indeed has a history of bungled executions. Until 2022, the state had not performed an execution for nearly eight years, after a 2014 execution was horrifically botched when the state injected an inmate repeatedly with an experimental drug cocktail.

That's one reason why the New York Times calls 2022 the "Year of Botched Executions," noting that "several high-profile failures forced states including Alabama and Tennessee to temporarily halt executions."In the same vein, the Washington Post reports "a third of executions went wrong in 2022."

But there's a simple alternative to the use of lethal injections which would avoid all the problems with bungling injections, and with meeting the new legal standard for executions, says public interest law professor John Banzhaf.

This is especially important because the Supreme Court just held in June 2022 that murderers on death row can challenge their method of execution if there is a viable alternative.

Since the legal standard for challenging an execution is easily met with a well-recognized and generally accepted method for painlessly ending a life, the public should expect many more challenges to and postponements of scheduled executions; not only in Arizona, but in many other states where voters want murderers to lose their lives without unnecessary delay.

As Justice Elena Kagan explained in NANCE v. WARD, "In several recent decisions, this Court has set out rules for challenging a State’s proposed method of execution under the Eighth Amendment.To prevail on such a claim, a prisoner must identify a readily available alternative method of execution that would significantly reduce the risk of severe pain.

In doing so, the prisoner is not confined to proposing a method authorized by the executing State’s law; he may instead ask for a method used in other States."

Although this initial language might seem to suggest that a murderer challenging his execution may point only to an alternative measure already in use or authorized for executions in a different state, other language strongly suggests that this other-state language is not a necessary constitutional requirement.

The Method Of Execution

For example, Kagan writes: "To succeed on that claim, the Court held in GLOSSIP, he must satisfy two requirements. First, he must establish that the State’s method of execution presents a 'substantial risk of serious harm'—severe pain over and above death itself.Second, and more relevant here, he 'must identify an alternative [method] that is feasible, readily implemented, and in fact significantly reduce[s]' the risk of harm involved."

She goes on to write that in identifying an alternative method, the Court in BUCKLEW held, an inmate is “'not limited to choosing among those presently authorized by a particular State’s law.' The prisoner may, for example, 'point to a well-established protocol in another State as a potentially viable option.'" The use of the word "may" clearly suggests that it is not a legal requirement for a challenge.

Thus, if there is an alternative to using lethal injections to execute murderers which "reduce[s]” the risk of harm involved." the prisoner apparently may raise it to challenge his own execution, even if it is not authorized in a different state, argues Banzhaf.

If, in fact, it is authorized to cause a painless death in one or more other states, that would simply make his argument and challenge stronger and more likely to be successful.Fortunately, for challengers who wish to derail executions, there is a well tested way to cause a painless death which is used in a number of states, notes Banzhaf.

The opinion went on to stress that the prisoner may challenge his execution even if it means a significant delay while the state, if it wishes and is able to do so, adopts by statute a new method of carrying out the death penalty; a step which gives death penalty opponents an additional opportunity to end executions.

Banzhaf notes that there is - and has long existed - a "readily available alternative method of execution" which would "significantly reduce the risk of severe pain," and one which is used in several states to cause legally sanctioned death.

A Simple Alternative

The simple alternative, Banzhaf notes, and an alternative to using injectable drugs for executions generally - with the many legal and other challenges this method has faced, and will continue to face - is putting the condemned on the pill.

Providing a condemned murderer with barbiturate pills to cause a quick and painless death - as is done in 'death with dignity' jurisdictions - is well tested, established, and accepted, does not require any trained personnel, and could avoid the many medical, legal, and other problems with lethal injections and other current methods of execution.

Including unexpected adverse reactions, possible pain, finding a suitable vein, etc. suggests Professor Banzhaf, who takes no position on the fundamental issue of capital punishment.

Interestingly, Arizona has approved the use of barbiturates for executions, but oddly only if they are injected.

Physician assisted end of live is already legal in ten U.S .states and the District of Columbia. It is an option given to individuals by law in Colorado, D.C., Hawaii, Maine, New Jersey, New Mexico, Oregon, Vermont and Washington.In those states, physicians are permitted to prescribe barbiturate pills so that terminally ill (and often old and frail) patients can achieve death with dignity without any pain or other suffering.

The pills for this purpose are readily available, do not expire quickly, do not require refrigeration as injectable drugs often do, nor do they cause adverse reactions to the elderly even though they are typically frail, and may also suffer from a wide variety of pre-existing medical conditions.

"If this method of ending life is safe and appropriate for totally innocent and often frail elderly people with a wide variety of medical conditions who are seeking a quick and painless death with dignity, it should be more than good enough for murderers about to be executed for their crimes," Banzhaf argues.

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 the form of several easy-to-obtain pills offered by jailers to the murderer in the death chamber.

 

Using these well-known, more readily available pills rather than injections or other methods for executions would probably stymie most legal objections, avoid the major problems with injections highlighted by death penalty opponents, eliminate the need for medically trained personnel (who often refuse on ethical and/or professional grounds to give injections, or even to insert needles) to participate in executions, and have many other advantages, suggests Banzhaf.

If the prisoner refuses to take the pills and/or cannot be forced to, or if he only pretends to swallow them, he can hardly then complain about unconstitutional "cruel and unusual punishment," and/or about “a substantial risk of severe pain," if the state thereafter has no choice but to use lethal injections, or other arguably cruel or painful execution protocols, 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.

In addition, since oral administration of pills takes longer for the drugs to reach the murderer's 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, and which death penalty opponents always cite - often with great success in courts - to stop executions.

If state governments don't take advantage of this simple and proven method to cause death without any pain, they can only expect further legal challenges by death penalty opponents who can probably then show, according to this new legal standard, that current execution methods - including lethal injections and the electric chair - create substantial risks of harm relative to a viable alternative; that viable alternative being painless barbiturate pills, Banzhaf predicts.