Justice OKs Drugs For Lethal Injections, But Unnecessarily; Executions Can Use Barbiturate Pills Legally, Solve Other Injection Problems
WASHINGTON, D.C. (May 15, 2019) – The Justice Department has just ruled that injectable drugs used for executions are not subject to the FDA’s jurisdiction; a move designed to get around legal restrictions and an injunction which have effectively ended the death penalty in many states because the drugs cannot now be obtained lawfully.
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But this move, sure to be contested in lengthy court proceedings, is unnecessary, since there's a much better way to use lethal drugs in capital punishment cases, says law professor John Banzhaf.
The simple answer, says Banzhaf, and 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.
Since most of the concerns about using drugs for capital punishment involve problems - including artificial scarcity and expiration dates - with FDA-regulated drugs which are injected, an obvious alternative for meeting any legal 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 lethal injections including unexpected adverse reactions, as well as restrictions on injectable drugs imposed by FDA requirements and an injunction based on those FDA requirements," suggests public interest law professor Banzhaf.
Barbiturate pills are approved for certain uses, and are even covered by Medicare Part D.
So the 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.
Interestingly, Arizona has approved the use of barbiturates for executions, but only if injected.
Moreover, and more importantly, in at least six states, 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.
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.
Using well-known, more readily available pills rather than injections for executions might mute many legal 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.
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
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, Wash, DC 20052, USA
(202) 994-7229 // (703) 527-8418
http://banzhaf.net/ jbanzhaf3ATgmail.com @profbanzhaf