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Executions Going Retro, or Are Postponed, as States Overlook Obvious

Gas Chambers, Electric Chair, Firing Squads Coming Back;  Even Asphyxiation is OKed

WASHINGTON, D.C. (March 14, 2016):  Virginia's legislature has just authorized using the electric chair, Oklahoma has adopted execution by asphyxiation (nitrogen gas), and Utah has reinstated the firing squad as "a shortage of lethal injection drugs drives some states to think the unthinkable," reports ScienceLine.

        But the growing shortage of lethal injection drugs, as well as decreased public support for the death penalty in light of tale after tale of so-called "botched executions" using injectable drugs, can easily be remedied by a technique which is virtually foolproof, simple and inexpensive, and very widely accepted and practiced, says public interest law professor John F. Banzhaf III.

        ScienceLine explains that "states are having problems because it’s increasingly difficult to get effective, reliable, government-approved drugs for executions. . . . The pressure on the 31 death-penalty states is growing because drug suppliers are increasingly pulling out of the death business."

        The results are predicable. "States are scrambling to find other options - including gas chambers and even firing squads, recently reinstated in Utah."  Also, some states are being forced to postpone or even cancel court-mandated executions, thereby frustrating the will of the majority of voters in the majority of states.  Banzhaf explains the strange background  of the current shortage.

        In 2008, the Supreme Court upheld the method of execution then in effect in some 33 states with a death penalty. It consisted of the sequential administration of three drugs: beginning with sodium thiopental. More recently, however, U.S. makers of sodium thiopental stopped making it available for use in executions.

        To overcome this problem, many states began importing the drug from abroad.  But then a federal judge enjoined the importation of sodium thiopental for executions, and ordered the FDA to collect any remaining supplies of the drug from any states that had imported them.  He reasoned that, since the FDA has not approved it as “safe and effective“ for executions, the agency was required to prevent its importation.

        A more recent decision by the U.S. Supreme Court, upholding executions by using the drug midazolam, hasn’t solved the problem, because that injectable drug is now also in very short supply.

        With this as a backdrop, Virginia’s legislature has just authorized the use of the electric chair when lethal-injection drugs aren’t available due to scarcities and sales restrictions caused by death penalty opponents, but many claim the language is vague and would invite a whole new round of litigation.

        But both sides seem to overlook the fact that there appears to be another simple, easy, and inexpensive alternative to avoid the many problems and potential legal challenges associated with executions using injectable drugs, including company restrictions on their sale or use, expiration dates on injectable drugs now faced in several states, and so-called “botched executions,” says Prof. Banzhaf.

        The simple answer - and alternative to any using injectable drugs for executions, with the many challenges this method is again facing - is putting the condemned on the pill, says Banzhaf.

        Since most of the concerns of using drugs for capital punishment involve problems - including an artificial scarcity - with drugs which are injected, an obvious alternative for possibly 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 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 perhaps even allow them to again 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.

        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 a painful execution 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 easily obtained and easily swallowed 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 often 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.

        If executions are to continue, it’s obviously best that they be carried out by the most humane means, and the one least likely to cause pain and complications, rather than resorting to the widely-discredited electric chair, gas chamber, and firing squads, says Banzhaf.

        Using quick, easy, and painless barbiturate pills for execution may even be required by the Constitution, and might indeed be necessary to stem challenges arising from the High Court’s  recent decision.

        In declaring that a successful death penalty challenge would have to show that the risk of severe pain is "substantial when compared to the known and available alternatives," the Court seems to open the door to new challenges to all lethal injections, based upon arguments that using barbiturate pills  - readily available, and 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.

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  @profbanzhaf

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