Project’s Recommendation for Executions Criticized by Prof. Banzhaf // One Recommendation - Which Follows His Lead - is Half Right, But Others May be Impossible, He Says

The Constitution Project's just released a massive report entitled "Irreversible Error," about the whole process of capital punishment, makes a few recommendations for improving executions, but one - which followed his lead - is only half right, and two may be impossible, says public interest law professor John Banzhaf.

Washington, DC, May 10, 2014 --( Prof. Banzhaf has written extensively about how the process can be improved, and botched executions virtually eliminated, by using only one drug, and delivering it in the form of a pill rather than by injection.

The Project’s Recommendation #36 calls for a "one-drug protocol" rather than the "three-drug method” in common use, and specifically suggests using barbiturates - a suggestion very similar in part to those Banzhaf has been making. However, strangely, in Banzhaf’s view, it never even considers giving the drug in pill form rather than as an injection, as the professor has urged.

However, as this report and others - like those by the Death Penalty Information Center - have noted, virtually all of the problems with using drugs for executions arise from the injections themselves.

These problems, according to the reports, include: finding a suitable vein, positioning the needle, making sure the catheter is properly located, assuring that it doesn't come out, using a syringe, problems with tubing which may crimp or clog, an injection line which “explodes” or becomes “blown” as it reportedly did very recently in Oklahoma, etc.

Interestingly, the Project cites an article at explaining how 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 terminally-ill patients seeking death with dignity, it should be good enough for condemned murderers," Banzhaf argues.

The panel also recommends [#38] that only drugs approved by the Food and Drug Administration [FDA] for use in humans be used in executions. But for approval, as the FDA’s own website indicates, the agency must find that a drug is both safe and effective.

However, says Banzhaf, this may be a near impossibility since, if the FDA finds that a drug is effective in quickly killing humans, finding that it is also safe for its intended use might seem to many to be a clear contradiction in terms.

On the other hand, barbiturate pills are approved for certain medical uses, and are even covered by Medicare Part D, as its website indicates. The FDA’s website also recognizes the common practice of prescribing drugs for "off-label use"; i.e. using a drug approved for one purpose to do something else for which it has not also been specifically approved.

This technique - using barbiturate pills approved by the FDA for some uses, but not for use in executions - might permit this recommendation to be followed, although almost certainly not in the way the Project intended, says Banzhaf.

Finally, the panel recommends [#39] that "qualified medical personnel" be responsible for all medically-related elements of executions, even while apparently admitting that such a policy would probably mean the end of capital punishment.

More specifically, the report said [at 144] that "Doctors and other medical professionals should not be compelled to violate medical ethics. The result may be that medical professionals will not be able to be present for executions and therefore a state may not be able to complete an execution while adhering to these recommendations. However, so high are the risks of conducting executions without the involvement of medical professionals that" the Constitution Project makes this recommendation anyway.

But, argues Banzhaf, providing a prisoner with a barbiturate in the form of pills, rather than injecting him with one or more drugs, doesn’t seem to require any medical training.

Thus the condemned can end their lives quickly and painlessly, the same way many terminally ill patients now do in Oregon, and avoid the many problems of botched injections, by using pills - perhaps the only way this recommendation can be put into effect without overriding the will of voters in states which have capital punishment, argues Banzhaf.
George Washington University Law School
Public Interest Law Professor John Banzhaf
202 994-7229 // 703 527-8418