Executions Halted, But Study to Ignore Simple Solution; Using Pills Eliminates Concerns and Constitutional Challenges
AG Merrick Garland Issues A Moratorium On Federal Executions
WASHINGTON, D.C. (July 2, 2021) - Attorney General Merrick Garland just issued a moratorium on federal executions, ordering a review of whether the current method involving an injection of pentobarbital poses risks of pain and suffering, and whether other methods of execution, including electrocution and the firing squad, should continue to be used.
But this study, like those in the past, will seemingly ignore a very simple and well tested solution to all the problems involved with using injectable drugs, including pentobarbital, and the numerous - often successful - constitutional challenges execution by injection has raised, says public interest law professor John Banzhaf.
The simple solution, 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 such legal problems, as well as arguments by drug companies objecting to the use of their injectable products for capital punishment, would be 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.
"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, legal, 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
Interestingly, Arizona has approved the use of barbiturates for executions, but oddly only if they are injected.
Moreover, and more importantly, in at least eight states (California, Colorado, Hawaii, Maine, New Jersey, Oregon, Vermont, and Washington) and in 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 or other suffering.
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 are typically frail, and may also have a wide variety of pre-existing medical conditions.
"If this method of ending life is safe and 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 about to be executed for their crimes," 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 would probably mute most 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 if he only pretends to swallow them, he can hardly complain about unconstitutional "cruel and unusual punishment" if the government 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 murderer's 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 state and federal 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; that viable alternative being painless barbiturate pills, Banzhaf predicts.