Botched Executions Caused by Trouble-Prone Injections Leading to De Facto Bans on Capital Punishment

WASHINGTON - May 5, 2014 - PRLog -- Clayton Lockett, whose badly botched execution shocked the world and led to postponement of another execution, is reportedly about to become the poster boy for banning capital punishment, not for moral reasons or because innocent people may be put to death, but rather because executions allegedly are inherently subject to horrendous failures.

        Such campaigns may well be effective so long as society insists that executions must be spectacles during which murderers are forcefully killed, rather than simply allowed to die quietly, says public interest law professor John Banzhaf, who thinks he has a simple solution to the main problem of botched executions, both generally and as arguments against capital punishment.

        Although we have moved away from executions which were supposed to be horrible to deter wrongdoers - typified by burning at the stake, boiling in oil, or drawing and quartering - to many newer methods which were supposed to be more humane like hanging, the firing squad, the electric chair, and now lethal injections, the common element seems to be a desire for witnesses to be able to see the condemned killed by society for his crimes, rather than simply his demise.

        But by getting beyond the need to make executions a spectacle, and using a well-tested painless method which has been used by thousands to achieve death with dignity, it's very easy to deflect this new argument, and allow executions to continue in states where the voters support them.

        As anti-death penalty organizations have well documented, most of the recent botched executions occur because the drugs are injected rather than simply swallowed, with resulting problems 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, tubing which crimps or clogs, etc.

         These problems are compounded by the refusal of most medical professionals to participate in executions, pressure on manufacturers of injectable drugs, as well as seizures by the federal government of injectable drugs which can be used in executions.

        The simple solution, suggests Banzhaf, is to do what death with dignity books and web sites have been recommending for years, and what is now recommended on various on-line guides for physicians in states like Washington and Oregon which have "Death With Dignity" laws: using a small number of barbiturate pills to initially cause sleep leading to unconsciousness, and then to a very calm and painless death.

        Since most of the concerns of using drugs for capital punishment involve problems with injecting the drug, an obvious alternative for possibly meeting constitutional muster and avoiding many other problems would be for states to simply use pills rather than injections to administer drugs such as barbiturates whose lethal properties are well known and very clearly established.

        "Providing a condemned man with barbiturate pills to cause a quick and 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.  "If it's OK for the elderly seeking death with dignity, it should be good enough for condemned murderers," he 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 to use lethal injections. To paraphrase an old legal saying, he had the key 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.

        Concerns that the convict would fill his stomach with food to slow the absorption of the ingested drug aren’t valid because condemned prisoners are usually kept under constant watch at least 24 hours before the time of execution, and because any such ploy would likewise make the condemned himself responsible for any pain he might suffer if a subsequent drug-injection execution became necessary.

        Likewise, since oral administration takes somewhat longer for the drugs to reach the system than injections, this method of capital punishment is much less likely to trigger the sudden reactions lethal injections have sometimes been said to cause.

        In short, using well-known, more easily 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, who has not taken a public position on capital punishment.

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