Federal Executions of Child Murderers Could Be Blocked; A Simple Solution to Legal Challenges – Put Them On The Pill
WASHINGTON, D.C. (July 29, 2019) – The federal government’s announced plan to begin executing murderers – beginning with five child killers, and including more than 50 others on death row – could be blocked by the same kind of legal challenges which have prevented so many states from likewise using lethal injections for capital punishment, says public interest law professor John Banzhaf.
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As NPR noted, the government has switched to using only a single drug, a change which "may be related to lawsuits that followed botched executions conducted with the three-drug method. However, this new single-drug- method comes with its own set of problems, according to the experts."
But Banzhaf notes that all of these law suits have challenged the use of injections to administer drugs - based upon "botched" administration techniques, unknown side effects of injected drugs, lack of FDA approval of drugs for lethal injections, etc. - so a way to avoid these and other legal problems could be to use the same drug, pentobarbital, but in pill form rather than injecting it.
If these executions are held up by the same kind of law suits which have stymied so many state executions, dozens of murderers - including Boston Marathon bomber Dzhokhar Tsarnaev and Dylann Roof, the white supremacist who gunned down black parishioners in a Charleston church - will never receive the penalty the law prescribes, says Banzhaf, who has proposed a novel solution.
The Justice Department recently 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.
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 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 the "botched" injection of drugs, artificial scarcity and expiration dates - with 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 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 the use of 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 oddly 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.
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 even though they 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.
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 new arguments by drug companies, and have many other advantages, suggests Banzhaf.
