Montana’s Execution Method Struck Down - Simpler Method Available

Sept. 8, 2012 - PRLog -- A federal judge has struck down Montana’s three-drug-injection method of executing murderers in a way likely to require new legislation to correct, but a simpler method exists which the legislature should consider, says the public interest lawyer who correctly predicted this ruling.

When Missouri was likewise forced to change its execution method, law professor John Banzhaf predicted that it could “significantly delay executions in that state, as well as in other states . . . because death penalty opponents - who have already been successful in legal challenges to two U.S. Supreme Court decisions supporting death by lethal injection - will now have several new and powerful legal arguments to prevent (or at least significantly delay) pending executions.”

But, he suggested, a very simple, inexpensive, and well-tested alternative which could undercut both the old and new legal challenges exists: the use of lethal pills to execute the condemned.

Although the Supreme Court did approve the use of the three drugs then in common use for executions - based in part on their well-known properties and long-established use - and articulated a difficult standard any constitutional challenges to such a procedure would have to meet, there were well over a dozen challenges to this well established three-drug procedure following the Supreme Court decision upholding it.

Although few of these challenges have ultimately been successful, even the unsuccessful ones have cost taxpayers hundreds of thousands of dollars in additional legal expenses as well as the added costs of keeping the condemned alive on death row while the legal issues are resolved.   Yesterday’s ruling in Montana was only one of these many challenges -a successful one - and represents a significant victory for those opposed to the death penalty.

The court ruled that the current procedure was unconstitutional because, among other reasons, critical decisions were left in the hands of the warden who had no medical training rather than in the hands of medical personnel.  The problem, says Banzhaf, is that most medical organizations feel it is unethical for their members to participate in executions

Fortunately, there's a simple, easy, and inexpensive means to avoid most of these problems, as well as the so-called "botched executions" involving injections cited by capital punishment opponents, claims Professor Banzhaf: put the condemned on the pill.

Since most of the concerns of using drugs for capital punishment involve problems with injecting the drug, an obvious alternative for meeting constitutional muster would be for states to simply use pills rather than injections to administer drugs such as barbiturates whose lethal properties are well known and very clearly established.

"Providing a condemned man with barbiturate pills to cause a quick and painless death does not require any trained (much less medical) personnel, and avoids all of the physical problems with injections," notes Banzhaf.

Seconal (secobarbital) and nembutal (pentobarbital) are the two very effective barbiturates for a swift and painless death. Indeed, nembutal is apparently the drug of choice for human euthanasia. "If it's OK for ordinary citizens seeking death with dignity on their own terms, nembutal should be good enough for condemned murderers," suggests Prof. Banzhaf.

If the prisoner refuses to take the pills, or only pretends to swallow them, he can hardly complain about unconstitutional "cruel and unusual punishment" if the state thereafter has to use lethal injections. To paraphrase an old legal saying, he had the key to his own freedom from pain, says Banzhaf.

Since only a few grams of many barbiturates are necessary to cause certain death, this amount could easily be administered in several easy-to-swallow pills, similar to 1000 mg pills containing vitamin C, which could be prepared by a government agency to prevent any problems involved in drug compounding.

Concerns that the convict will fill his stomach to slow the absorption of the ingested drug are groundless because condemned prisoners are usually kept under constant watch at least 24 hours before the time of execution, and because 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 injections, this method of administration is much less likely to cause the sudden reactions lethal injections have sometimes been said to cause. For example, in a recent execution in Arizona, Thomas Kemp, a 63-year-old convicted killer, reportedly shook for several seconds upon receiving a lethal injection of pentobarbital.

Using well-known, easily available, and well tested pills for executions would virtually eliminate all constitutional arguments, 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 participate in executions, and have many other advantages, 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)
2000 H Street, NW, Suite S402
Washington, DC 20052, USA
(202) 994-7229 // (703) 527-8418
http://banzhaf.net/ @profbanzhaf