To Supreme Court – There’s an Easy Way to Execute This Sick Inmate; Widely Prescribed Pills Provide “Death With Dignity” and Without Any Pain
WASHINGTON, D.C. (November 7, 2017) – The justices of the U.S. Supreme Court are reportedly wresting with the issue of how Missouri can constitutionally put to death a man who has a rare medical condition (cavernous hemangioma) which might be aggravated by using a lethal injection, and could well spare him the death penalty as a result, but there’s a easy and well-tested answer, says public interest law professor John Banzhaf.
Under current Supreme Court precedent, lethal injections may be used to execute murderers, but a condemned inmate who challenges a particular execution method based upon his specific condition must propose an alternative manner of execution which is acceptable to the state.
The simple answer, and alternative to using injectable drugs for executions generally - with the many challenges this method has faced, will continue to face, and which is being challenged in this particular situation - is putting the condemned on the pill, says Banzhaf.
Since most of the concerns, including possible adverse reactions, 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 arguments by drug companies objecting to the use of their product for capital punishment, 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, and which cause "death with dignity" and no pain.
"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 including unexpected adverse reactions, 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.
Moreover, and more importantly, 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, do not expire quickly, or require refrigeration, as injectable drugs often do, nor do they cause adverse reactions to the elderly who have a wide variety of pre-existing medical conditions.
"If this method is appropriate for totally innocent and often frail elderly people with a wide variety of medical conditions 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, or the adverse reactions feared in this case, 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 including the one in this case, 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.
http://banzhaf.net/ jbanzhaf3ATgmail.com @profbanzhaf