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Methods of Execution and the Search for Perfection

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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8 Responses

  1. Mike Stern says:

    Life in prison’s no party either.

  2. Badly Botched Oklahoma Execution Suggests Simple Alternative
    To Avoid the Many Problems of Lethal Injections, Put Them on the Pill

    WASHINGTON, D.C. (May 1, 2014): Oklahoma’s badly botched execution, in which an inmate reportedly writhed in pain from a “blown” vein line before finally dying 43 minutes later from an apparent heart attack, is only the latest in a long line of problems and failures from using lethal injection as a method of capital punishment, notes public interest law professor John Banzhaf.

    But that doesn’t mean that the will of the people in the large number of states where capital punishment has been approved must be thwarted, he says, since there is a simple alternative which avoids virtually all of the problems involved with injecting lethal drugs – putting the condemned on the pill.

    Virtually all of the problems associated with using drugs to execute convicted murderers occur because the drugs are being injected. These many problems include 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 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 drugs because the FDA has not found them to be 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 many of these problems, including drug company restrictions on the sale of injectable drugs, expiration dates on injectable drugs now facing several states, and the so-called “botched executions” involving injecting lethal drugs cited by death penalty opponents – putting the condemned on the pill.

    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 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 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.

    For example, in a recent execution in Arizona, a 63-year-old convicted killer reportedly shook for several seconds upon receiving a lethal injection of pentobarbital.

    In another execution in Ohio, the condemned man loudly gasped for air several times during his execution and took an unexpectedly long 25 minutes to finally die. His dying utterance, “I feel my whole body burning,” was widely reported, and provided more ammunition for those opposed to the death penalty.

    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 itself.

  3. Brett Bellmore says:

    Actually, this is simply a demonstration of the lengths to which opponents of the death penalty will go, to prevent it, in the face of legal decisions that it’s constitutional. The execution in question was improvised, because the Obama administration had confiscated the state’s supply of sodium thiopental.

    This would be the drug which would have prevented Clayton Lockett from suffering, if it had not been confiscated.

  4. Joe says:

    The very article Brett Bellmore flags (from Fox News, citing a leading conservative criminal analyst) says that the investigation “contributed” to the current situation. The word “contributed” means “a factor” but BB flags it as the reason (‘because’). Furthermore, the very article explains the reasons why there is an investigation.

    Basically, there are shortages of the drugs so states have to find novel approaches that are less than ideal, some such as compounding pharmacies in the news in the past in non-death penalty situations as involving dangerous drugs. Since we have federal laws, including an 8th Amendment providing minimum standards, yes, the federal government would be concerned here. And, again this is a Fox article, there is merely an implication that this all is some sort of “anti-death penalty” plot. It should be noted that the Obama Administration is on the record to supporting the death penalty (including in the case in question), which upset some anti-death penalty individuals.

    There have been various problems with lethal injection over the years, leading to some experts arguing that if we want to have a death penalty, it should not be used. This has led to various concerns over the procedure, including as states try new protocols. Shortages have also increased secrecy concerns. Brett, I’d think, as an open government sort should be against that sort of thing. Given everything, including the review of the execution not being complete to my understanding, makes it far from clear that you know it’s just Obama’s fault or “simply a demonstration of the lengths to which opponents of the death penalty will go.” If the 8A and federal rules over drugs are an issue to Brett, so we should just trust the state government more here, like the conservative analyst over at Fox wants, fine. It isn’t just some “anti-death penalty” thing though.

    • Brett Bellmore says:

      You’re just making excuses. The “shortage” of the relevant drug was not innocent happenstance, it was deliberately arranged by a variety of means, including that extra-legal confiscation, for the very purpose of interfering with executions.

      • Joe says:

        Face up to what you said. You said:

        “The execution in question was improvised, because the Obama administration had confiscated the state’s supply of sodium thiopental.”

        Your very own article, which is far from merely some neutral account, is not that one-sided. The article suggested that the administration’s actions here “contributed” and your reply here in effect admits it (now its “a variety of means”).

        And, “extra-legal” is basically an assertion. You have to show HOW it was “extra-legal.” Not merely a bad idea, allegedly, or one that had ironic (allegedly) results. But, you don’t provide such actual evidence. What is your “excuse” for this?

        I’m not making “excuses.” I’m fully explaining the situation. Yes, the shortages are partially a result of pressure on firms who provide the drugs. But, your “anarcho-libertarian” beliefs surely allow for freedom to pressure companies like that. The state could deal with the situation, including setting up their own companies. They can’t instead cut corners.

        Your trust of the state — selective as usual — is duly noted.

  5. Joe says:

    “Back in the day, executions were supposed to be horrible.”

    The examples included often dealt with political prisoners or non-citizens. For some time, for the elite, which in a republican government like us would include everyone (at least all citizens), was not supposed to suffer horribly to such a degree. Thus, beheading provided a quicker means for such people. In Roman times,e.g., were Roman citizens put on the cross for simple crimes akin to Jewish riff raff?

    It is somewhat futile, yes, but the 8A supposes there are matters of degree.

  6. Brett Bellmore says:

    Anyway, “Hanging: No need to cut anything or shed blood. Except if the rope was too short (then the head got ripped off). Or if the rope was too long, people took a long time to die in agony.”

    I think you got that backwards.