Today’s Supreme Court Ruling Opens All Lethal Injections Up To Stronger Better Legal Challenge

WASHINGTON - June 29, 2015 - PRLog -- WASHINGTON, D.C. (June 29, 2015):  In its ruling today that a specific lethal injection technique should not be enjoined, the Supreme Court seemingly opened the door to a new and winnable challenge to all lethal injection executions, suggests public interest law professor John Banzhaf.

        In declaring that a successful challenge would have to show that the risk of severe pain is "substantial when compared to the known and available alternatives," the Court almost seems to invite a new challenge to virtually all lethal injections based upon arguments that using barbiturate pills - readily available, and even covered under Medicare Part D - long used successfully to cause "death with dignity" in jurisdictions which permit it, are exactly the known and available alternative such a challenge would require.

        Moreover, unlike injectable drugs which have become increasingly difficult for prisons to obtain because of restrictions imposed by manufacturers, and by a federal judge who has halted their importation, states should have far less difficultly obtaining such widely available pills, and have less concerns about expiration dates and other problems with drugs in injectable form.

        "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 problems with injections, as well as restrictions on injectable drugs imposed by many manufacturers because of ethical and moral concerns," suggests Banzhaf.

        Barbiturate pills are approved for certain medical uses, and are even covered by Medicare Part D.   So the common and generally accepted 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, and allow them to be imported from abroad, says Banzhaf.

        Oregon's death with dignity program helps terminally ill patients end their lives simply and painlessly by providing prescriptions for Seconal pills which the patient takes himself.  "If this method is appropriate for totally innocent and often frail elderly people seeking a quick and painless death with dignity, it should be more than good enough for condemned murderers," 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 several easy-to-swallow pills.

        Likewise, since oral administration takes much longer for the drugs to reach the 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.

        Using well-known, more readily available pills rather than injections for executions might mute many 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, suggests Banzhaf

        In short, put condemned killers in the pill, 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
Washington, DC 20052, USA
(202) 994-7229 // (703) 527-8418
http://banzhaf.net/ @profbanzhaf