Death Penalty Imperiled, More Stays Expected

Judges Again Block Execution Despite Supreme Court Ruling; Death Penalty Imperiled, More Stays Expected, One Justice Could Switch

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WASHINGTON, D.C. (July 16, 2020)  - Although the Supreme Court had just upheld the execution of Daniel Lewis Lee, despite claims that a lethal injection of phenobarbital might cause "extreme pain and needless suffering," four judges issued or upheld an order granting a stay in the case of a second murder, Wesley Purkey, who was convicted of raping and murdering a 16-year-old girl.

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Death Penalty Is In Trouble

The action of the federal district judge who stayed Purkey's execution, then the judges on the federal appellate court who permitted the stay to remain, and the fact that his execution was finally permitted to proceed only by the slimmest of margins at the Supreme Court, shows that the death penalty is in trouble and likely to be repeatedly challenged on this same "pain" argument, since the justices cannot always be counted on to overturn stay orders in the middle of the night, and a small change in the facts or procedure could easily cause one justice to switch his vote, suggests public interest law professor John Banzhaf.

Just a day earlier, this new argument - that the federal government's "lethal injection protocol" might cause "extreme pain and needless suffering" during the execution of a white supremacist convicted of killing a family of three - persuaded a federal judge to stay Lee's execution, and the D.C. Circuit to leave the stay in play.  The scheduled execution was permitted to proceed only after a close 5-4 vote of the Supreme Court on "an emergency application from the Government for extraordinary relief."

Subsequently, the same argument led to a second stay of execution for Purkey, only to be overturned, 5-4, by the Supreme Court decision issued at 3:00 AM Thursday.

The same "pain" argument is almost certainly going to be made again and again by other murderers sentenced to death, and another judge (federal or state) and another appellate court are likely to again be persuaded by it, says Banzhaf.  He notes that such Supreme Court actions create little in the way of precedents.

Federal Court's Last-Minute Intervention

Indeed, the Supreme Court's majority opinion in the Lee case concluded only that ''the plaintiffs in this case have not made the showing required to justify last-minute intervention by a Federal Court. 'Last-minute stays' like that issued this morning 'should be the extreme exception, not the norm.'"  In Purkey's case, the Supreme Court's majority did not even bother writing an opinion upholding his execution.

But since four justices were moved by the argument in two different cases to at least stay - if not ultimately vacate - the execution order, and the district judge claimed in the Lee case that the "scientific evidence before the court overwhelmingly indicates that the" protocol "is very likely to cause Plaintiffs extreme pain and needless suffering during their executions," the same tactic is very likely to be used again and again by death penalty opponents.

And of course any small change in the facts - e.g., additional expert testimony that the injection pains the murderer, a prisoner even slightly less heinous than a white supremacist who murders an entire family or a rape-murderer of a child, or a better or different argument or a change in procedural tactics - might switch the vote of one justice and thereby prevent lawful executions, suggests Banzhaf.

This is only the latest in a long string of attacks on methods used for carrying out the death penalty.  But Banzhaf notes that most of these law suits have challenged the use of injections to administer drugs - based upon "botched" administration techniques, unknown side effects including possible pain from injected drugs,, etc. - so a way to avoid these and other legal problems could be to use the same drug, phenobarbital, but in pill form rather than injecting it.

Injectable Drugs For Execution Are Unsuitable

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 injunctions which have effectively ended the death penalty in many states because the injectable drugs cannot now be obtained lawfully.  But this move - and debates about possible pain from injecting drugs - is unnecessary, since there's a much better way to use lethal drugs in capital punishment cases, says Banzhaf.

The simple answer, he argues, 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 administering a lethal drug in a pill rather than by injection.,

Since most of the concerns about using drugs for capital punishment involve problems - including possible pain from the rapid dispersal of one or more injected drugs, the "botched" injection of drugs, etc. - 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 injectable products 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" without any pain as users simply fall into a deep sleep from which they never awake.

"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 and possible pain," suggests professor Banzhaf, who takes no position on the fundamental issue of capital punishment.

The Use Of Barbiturates For Executions

Interestingly, Arizona has approved the use of barbiturates for executions, but oddly only if injected. Moreover, and more importantly, in at least eight states (California, Colorado, Hawaii, Maine, New Jersey, Oregon, Vermont, and Washington) and the District of Columbia, 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.

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 may 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 who are 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 the form of several easy-to-swallow and easy-to-obtain pills offered by jailers to the murderer in the death chamber.

Using well-known, more readily available pills rather than injections for executions might mute many 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.

Unconstitutional Cruel And Unusual Punishment

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.

Likewise, since oral administration takes 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.

If governments doesn't take advantage of this simple and proven protocol to cause death without pain, they can only expect further challenged by death penalty opponents who can probably then show, according to the existing legal standard, that the current execution protocol creates substantial risks of harm relative to a viable alternative:i.e., a painless barbiturate pill.