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Judge Blocks Opioids For Executions, Suffocation Planned
But It's Easy to Avoid Risks and Litigation Over Injectable-Drug Executions
Importantly, the risks of unnecessary pain and suffering, and the interminable legal challenges to new methods of carrying out capital punishment, could easily be avoided, says public interest law professor John Banzhaf.
Nevada and Nebraska are planning to execute murderers using fentanyl - the driving force behind the nation's opioid epidemic - although a forthcoming fentanyl execution in Nevada has been blocked by a state judge because of concerns about possible pain and suffering. Ironically, the inmate has said repeatedly that he wants his execution carried out, and doesn't care if he feels pain.
Chief Judge Alex Kozinski of the 9th Circuit Court of Appeals proposed using a firing squad because it's "foolproof,"
All of this has occurred because manufacturers are increasingly refusing to permit their injectable drugs to be used for executions, and a federal judge has issued an injunction prohibiting the importation of key injectable drugs for executions because these lethal drugs haven't been found by the FDA to be both safe and effective - as required by federal law - for causing death.
Indeed, it has been suggested that investigations and litigation growing out of these and other novel and/or botched lethal-injection executions might permanently halt the practice.
But, says 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 using untested drugs, 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 almost 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" cited by death penalty opponents involving injecting lethal drugs – putting the condemned on the pill.
Since most of the concerns of using drugs for capital punishment involve problems with injecting the often-untested 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. Also, the 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 in his own hands 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.
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.
Using well-known, tested, and 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 or suffocation, suggests Banzhaf.