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Arkansas' Unprecedented Rushed Executions Unnecessary
Simple Alternative to Lethal Injections - Putting Condemned Murderers on the Pill - Would Avoid Problems, Moot Law Suits
The simple answer, and alternative to injecting drugs for executions, with the many challenges this method faces, is putting the condemned on the pill, says public interest law professor John Banzhaf.
Since most of the concerns of using drugs for capital punishment involve problems - including artificial scarcity and expiration dates - with drugs which are injected, an obvious alternative for meeting any constitutional problems would be for states to simply use pills rather than injections to administer drugs such as barbiturates whose lethal properties are well controlled, well known, and very clearly established.
"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 and other 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 if necessary, says Banzhaf. Arizona just approved the use of barbiturates for executions, but only if injected.
However, in six states - California, Colorado, Montana, Oregon, Vermont, and Washington - physicians are permitted to prescribe pills so that terminal patients can have death with dignity, and the pills for this purpose are readily available and do not expire quickly as injectable drugs often do.
"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 murderers," Banzhaf argues.
If the prisoner refuses to take the pills and/or cannot be forced to, or only pretends to swallow them, he can hardly complain about unconstitutional "cruel and unusual punishment" if the state thereafter has no choice but to use lethal injections, 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.
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.
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, Wash, DC 20052, USA
(202) 994-7229 // (703) 527-8418