Firing Squads Returning – But There’s a Better Way; Using Death-With-Dignity Pills Avoids Constitutional Challenges
Adoption Of Firing Squads
WASHINGTON, D.C. (March 21, 2022) – In response to growing legal challenges, South Carolina has joined Mississippi, Oklahoma, and Utah in adopting firing squads as a means of executing convicted murderers, but there is a much better way, and one which avoids constitutional concerns and the growing problem of obtaining and using lethal drugs for injections, notes public interest law professor John Banzhaf.
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In recent years, states have had ever increasing difficulties obtaining drugs for lethal injections. This has caused many executions to be postponed, and prompted states to offer, as alternatives to lethal injections, death by lethal gas, electrocution, hanging, and firing squads.
Many scheduled executions have been stymied by constitutional challenges. For example, in October the 10th Circuit Court of Appeals stayed two executions in Oklahoma over concerns that the use of lethal injections might present “a substantial risk of severe pain"; a risk which is "substantial" when compared to other available alternatives.
But these and other previously-successful challenges to the use of lethal injections would vanish if states simply adopted a proven alternative which causes a completely pain-free death, and does not require special training for those administering it; another concern in these two cases, says John Banzhaf.
Injectable Drugs
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 administered by injection, an obvious alternative for meeting these and other legal problems would be to simply use readily available pills, rather than injections, to administer drugs such as barbiturates whose lethal properties are easily 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 awaken.
"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.
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.
No Refrigeration Required
The pills for this purpose are readily available, do not expire quickly, do not 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 suffer from 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-obtain pills offered by jailers to the murderer in the death chamber.
Using these 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," and/or about “a substantial risk of severe pain," if the government thereafter has no choice but to use lethal injections, or other arguably cruel or painful execution protocols, 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 - often with great success - to stop executions.
If state governments don't take advantage of this simple and proven method to cause death without pain, they can only expect further legal challenges 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.
