Executions Imperiled by Claims of Pain – A Solution

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Executions Imperiled by Claims of Pain By Death Penalty Opponents – A Solution; Why Not Use a “Death With Dignity” Pill As Many States Now Authorize

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A Lethal Injection Protocol Might Cause Extreme Pain

WASHINGTON, D.C. (July 15, 2020) -  A 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 the 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."

The same argument is almost certainly going to be made again, and another judge (federal or state) and another appellate court are likely to again be persuaded by it, says public interest law professor John Banzhaf.  He notes that a Supreme Court ruling in this form creates little precedent since it is an emergency application, and not a decision on the merits of the lethal injection protocol. In fact, other district courts have recently stayed at least two other scheduled executions.

Indeed, the Supreme Court's majority opinion 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.'"

But since four justices were moved by the argument to at least stay - if not ultimately vacate - the execution order, and the district judge claimed 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 and entire family, or a better or different argument or a change in procedural tactics - might switch the vote of one justice and thereby prevent lawful executions by the federal government, suggests Banzhaf.

Botched Administration Techniques

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.

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 putting the condemned on the pill.

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 pain as users simply fall into a deep sleep from which they never awake.

A Quick And Painless Death

"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.

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.

Avoiding The Problems Highlighted By Death Penalty Opponents

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.

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.