Politics

New Legal Tactic Halting Executions – But There’s a Remedy

Easy Well-Tested Alternative Bypasses New “Subterfuge” Argument 

WASHINGTON, D.C. (July 13, 2018) – There’s a new and novel legal argument which can be used to stop lethal-drug executions – and which was just used successfully to halt an execution in Nevada where the twice-convicted murderer had wanted to die – but there’s a well-tested alternative procedure which bypasses this new legal roadblock, says public interest law professor John Banzhaf.

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Subterfuge Argument
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In the case of Scott Raymond Dozier, it was claimed that one of the three drugs to be used in a three-drug "execution cocktail" had been obtained by the state through "subterfuge" because it had been shipped to a third party before being turned over to Nevada.  For this reason, Clark County District Court Judge Elizabeth Gonzalez stopped the planned execution.

In Dozier's case the argument was made by the drug's manufacturer.

But if the underlying legal principle is that a drug obtained through any kind of alleged subterfuge cannot be used to execute a murderer, almost certainly the condemned would have legal standing to make the same legal argument.  So there would be no need for death penalty opponents to pressure or otherwise persuade a drug company to initiate litigation to halt a planned execution, notes Banzhaf.

Many drug makers have stated publicly that they do not want their products used in executions, but it is not at all clear that simply stating such opposition is enough to shut down a scheduled execution.  However, under this new tactic, anything other than complete transparency in obtaining an injectable drug could bring death penalty opponents the victory they desire if that argument is made by the drug maker, and probably also if made by the condemned.

The problem with using injectable drugs for executions is further complicated by the fact that federal judge Richard Leon has enjoined the importation of most of these drugs, and even ordered any correctional departments in possession of the drugs to return them to the FDA, because these execution drugs cannot meet the test of being both safe and effective for their intended use.

How a drug to be used to execute an inmate can both be "effective" for its intended use of helping to cause his death, and at the same time be "safe," says Banzhaf, is beyond my comprehension, and probably also that of any rational person, but the court order nevertheless stands as an additional major obstacle to using injectable drugs to impose the death penalty.

The simple answer, and alternative to using injectable drugs for executions, with the many challenges this method faces, is putting the condemned on the pill, says Banzhaf.

Since most of the concerns of using drugs for capital punishment involve problems - including  artificial scarcity and expiration dates - with drugs which are injected, an obvious alternative for meeting any constitutional problems, as well as the new subterfuge argument, would be for states to simply use readily available 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 - as in 'death with dignity' jurisdictions - is well tested, established, and accepted, does not require any trained personnel, and could avoid the many medical and other problems with injections, as well as restrictions on injectable drugs imposed by many 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 and generally accepted 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, and perhaps even allow them to be imported from abroad or through third parties if necessary, says Banzhaf.

Interestingly, Arizona just approved the use of barbiturates for executions, but only if injected.

However, in six states - California, Colorado, Montana, Oregon, Vermont, and Washington - physicians are permitted to prescribe barbiturate pills so that terminally ill patients can achieve death with dignity, and the pills for this purpose are readily available, and do not expire quickly as injectable drugs often do.

"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 murderers," Banzhaf argues.

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 and easy-to-obtain pills.

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, and which death penalty opponents always cite to stop executions.

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, undercut if not destroy this new subterfuge argument, and have many other advantages, suggests Banzhaf.