Indeed, it has been suggested that investigations and subsequent litigation growing out of these and other botched lethal-injection executions might halt the practice.
Chief Judge Alex Kozinski of the 9th Circuit Court of Appeals suggested that using a firing squad would be the "most promising" method, in large part because its "foolproof" nature of always resulting in death would mean the end of botched executions.
But, says public interest law professor John Banzhaf, there’s an easier way to administer lethal drugs which avoids the problems caused by injecting them - simply switch to lethal barbiturate pills, of the type used in “Death With Dignity” states and under euthanasia protocols.
Virtually all of the problems associated with using drugs to execute convicted murderers occur because the drugs are being injected. These many problems include finding a suitable vein, positioning the needle, making sure the catheter is properly located, being sure it doesn't come out, using a syringe, problems with tubing which may crimp or clog, etc.
Problems also include finding people with medical training competent to start and maintain intravenous lines who are not prohibited from participating in executions by ethical and professional guidelines, locating sufficient quantities of injectable drugs now that many drug companies are trying to prevent them from being used in executions, and a federal judge who has barred the importation of most of those injectable drugs because the FDA hasn’t found them both safe and effective to kill people - an obvious contradiction for drugs used in executions, says Banzhaf.
Fortunately, there appears to be a simple, easy, and inexpensive means to avoid most all of these problems, including drug company restrictions on injectable drugs, expiration dates on injectable drugs now faced in several states, and the Arizona and other so-called "botched executions" involving injecting lethal drugs cited by death penalty opponents – putting the condemned on the pill.
Since most of the concerns of using drugs for capital punishment involve problems with injecting the drugs, an obvious alternative probably meeting constitutional muster would be for states to simply use pills rather than injections to administer drugs such as barbiturates, which are readily available and whose lethal properties are well known and very clearly established.
"Providing the condemned with barbiturate pills to cause a quick painless death does not require any trained (much less medical) personnel, and could avoid the many medical problems with injections, as well as restrictions and expiration dates on injectable drugs," suggests Banzhaf.
Barbiturate pills are approved for certain medical uses, and are even covered by Medicare Part D. So the common practice of prescribing drugs for "off-label use" - using a drug approved for one purpose to do something else - would seemingly permit states to use barbiturate pills in executions, says Banzhaf.
Oregon's death with dignity program helps terminally ill patients end their lives simply and painlessly by providing prescriptions for Seconal (a barbiturate)
"If this method is appropriate and permissible for totally innocent elderly persons simply seeking death with dignity, it should be good enough for condemned murderers," Banzhaf argues.
If the prisoner refuses to take the pills, or only pretends to swallow them, he can hardly complain later about unconstitutional "cruel and unusual punishment" if the state thereafter has no choice but to use lethal injections with all the risks involved. To paraphrase an old legal saying, he had the key to his own freedom from pain, says Banzhaf.
Since only a few grams of certain barbiturates are necessary to cause death, and pills may be 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 pills.
Concerns that the convict would fill his stomach with food to slow the absorption of the ingested drug aren’t valid because condemned prisoners are usually kept under constant watch at least 24 hours before the time of execution. Also, any such ploy would likewise make the condemned himself responsible for any pain he might suffer if a subsequent drug-injection execution became necessary.
Likewise, since oral administration takes somewhat longer for the drugs to reach the system than with injections, this method of capital punishment is much less likely to trigger the sudden reactions lethal injections have sometimes been said to cause - perhaps also Wednesday in Arizona.
For example, in another recent execution in Arizona, a 63-year-old convicted killer reportedly shook for several seconds upon receiving a lethal injection of pentobarbital.
In another execution in Ohio, the condemned man loudly gasped for air several times during his execution, and took an unexpectedly long 25 minutes to finally die. Lethal-
Using well-known, more easily available pills rather than injections for executions might overcome any 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, and have many other advantages, including eliminating the need for bullets, suggests Banzhaf.
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
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