Earlier this month, the U.S. Supreme Court heard oral arguments in Baze v. Rees, a Kentucky case challenging current practices regarding lethal injection—the modality of death in almost all of the 38 states that allow capital punishment. The decision, expected by June, is likely to focus on the narrow question of the proper standard for assessing whether lethal injection constitutes cruel and unusual punishment. However, as the case turns out, one of the most troubling aspects of lethal injection will remain at issue: the involvement of physicians in the process of execution.
Physicians have a long history of involvement with the death penalty. Dr. Joseph-Ignace Guillotin inspired the device that later bore his name, hoping that it would be a humane means of ending the life of condemned prisoners. Executioners often called on physicians for assistance in calculating the proper drop for death by hanging. Even modern forms of execution such as the gas chamber and the electric chair involved physicians in the determination that the prisoner had actually died.
Lethal injection, which as currently practiced involves a three-stage sequence of drugs that induce anesthesia, paralyze breathing, and stop the heart, was suggested by an Oklahoma physician in yet another attempt to find a painless means of execution. Since it has the trappings of a medical procedure, though, it has pulled physicians and other medical personnel even more closely into the process of putting prisoners to death. Of the 38 states that have the death penalty, with lethal injection the preferred mode of execution in all of them, 17 require physician involvement and 18 more permit it.
Thus, physicians have been reported to assist in preparing the lethal drugs, selecting sites for IV lines, inserting the lines, supervising personnel in administering the drugs, monitoring vital signs, and declaring death. If the initial doses are ineffective, physicians may recommend additional amounts that will more reliably induce death. Advocates of physician involvement in these roles point out that non-medical personnel are unlikely to do them correctly, with the result that condemned prisoners will suffer needlessly. Hence, a humanitarian rationale is offered for physicians to be involved.
To be sure, accounts of mangled executions make clear that lethal injection is far from the painless and “sterile” procedure for death that its developers sought. Personnel often have trouble inserting IV lines, sometimes requiring many painful tries at locating a vein. When done incorrectly, the lines may not feed directly into a vein, leading to excruciating pain, burning and blistering when the drugs are injected. Improperly mixed medications can clog IV lines, stopping executions in mid-stream. Reports of insufficient medication to induce full anesthesia indicate that some prisoners have experienced paralysis of their breathing muscles while still sentient or felt the burning sensation of the potassium solution intended to stop their hearts as it was injected into their bodies.
The American Medical Association, AMA, however, along with every other U.S. and international medical group that has spoken on the issue, has condemned physician participation in execution. In the AMA’s words, “A physician, as a member of a profession dedicated to preserving life when there is hope of doing so, should not be a participant in a legally authorized execution.” Ending life is so antithetical to the core mission of physicians that the use of medical skills for that purpose seems a clear corruption of the profession. The analogy to the futuristic firemen in Fahrenheit 451—who ignite fires to burn books rather than extinguishing them—is close enough to be viscerally disturbing.
Commentators worry about a variety of consequences stemming from physicians playing a role in executions: loss of public trust, a slide into the practice of euthanasia in clinical settings, and the distortion of the debate over the legitimacy of the death penalty by dressing it up as a medical procedure. From a policy perspective, the last of these is especially problematic. Whatever one’s view of the death penalty, it is clearly a punitive procedure rooted in a retributive goal. Our debate regarding its appropriateness should focus on the appropriateness of death as a means of retribution. Sanitizing the procedure by turning it over to the medical profession masks the true nature of the death penalty and undermines informed discussion.
Ironically, a number of courts—taking note of the bungled executions that seem all too prevalent with current protocols—have required physician involvement if executions are to continue. Thus, states have been recruiting physicians for this purpose, offering them anonymity and legal insulation from sanctions that state medical boards may impose for unethical behavior. Given the strong case that can be made for the inappropriateness of physician involvement in executions, if we cannot figure out a way to execute people humanely without relying on physicians, perhaps we need to rethink our use of the ultimate penalty. Physicians should be saving lives, not taking them.
The author is a member of the Columbia College class of 1972 and the Elizabeth K. Dollard Professor of Psychiatry, Medicine and Law at Columbia University. He is presenting today at the Symposium titled “The Supreme Court and the Legal, Medical, and Ethical Challenges to Execution by Lethal Injection.”