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Execution Panel's Proposals: Half Right, But Also Impossible
The Constitution Project's massive report "Irreversible Error" makes a few recommendations for improving executions, but one is only half right, and two are impossible, says public interest law professor John Banzhaf
The Project recommends a "one-drug protocol" rather than the "three-drug method” in common use, and specifically suggests barbiturates, but strangely never even considers giving the drug in pill form rather than as an injection.
However, as this report and others have noted, virtually all of the problems with using drugs for executions arise from the injections themselves, including: finding a suitable vein, positioning the needle, making sure the catheter is properly located, assuring that it doesn't come out, using a syringe, problems with tubing which may crimp or clog, a line which “explodes”
Interestingly, the Project cites an article explaining how Oregon's death with dignity program helps terminally ill patients to end their lives simply and painlessly by providing prescriptions for Seconal pills which the patient takes himself. "If this method is appropriate for the totally innocent elderly seeking death with dignity, it should be good enough for condemned murderers," Banzhaf argues.
The panel also recommends that only drugs approved by the FDA for use in humans be used in executions. But for approval, the FDA must find that a drug is both "safe and effective," a near impossibility since a drug which is approved as effective in killing recipients can hardly also be considered "safe."
On the other hand, 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 - might permit this recommendation to be followed, although almost certainly not in the way the Project intended, suggests Banzhaf.
Finally, the panel recommends that "qualified medical personnel" be responsible for all medically-related elements of executions, even while admitting that such a policy would probably mean the end of capital punishment.
It said that "Doctors and other medical professionals should not be compelled to violate medical ethics. The result may be that medical professionals will not be able to be present for executions and therefore a state may not be able to complete an execution while adhering to these recommendations. However, so high are the risks of conducting executions without the involvement of medical professionals that " the Project sticks to its recommendation anyway.
Banzhaf notes that providing the patient with barbiturate pills, which he can take for a quick painless death and avoid the many problems of botched injections, do not require any medical professionals, so apparently only by putting prisoners on the pill can this recommendation by followed - again almost certainly not the way the Project intended, says 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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