By L. Elisabeth Armstrong
A March 2021 Op-Ed in Washington Post asserts that Capital Punishment is ending in America. With twenty-three states abolishing the practice, another three institutionalizing moratoriums, and serious debate surrounding a moratorium on federal executions, it might seem that this is the case. However, much of the country continues to advance the death penalty. Today, seventeen states allow for capital punishment and require physician involvement.
Some states have resorted to brutal methods including the firing squad and electric chair. Some advocates have argued these procedures are more appropriate, saying they better comport with requirements of the 8th Amendment; some individuals assert that clinicians’ refusal to participate in lethal injection is the impetus for these “less complicated” methods. However, state governments are still compelling medical participation, with a few even shielding practitioners from penalty from medical boards. In Utah, a doctor is required to put an X over the inmate’s heart before a firing squad proceeds with the execution. In Indiana, a doctor must call time of death.
The chasm is widening between states abolishing the death penalty and states allowing it. As practitioners compromise their vow of do no harm by participating in executions, they also undermine their fellow clinicians working to uphold medical ethics. The Belmont Report bioethical framework and ethical obligations of the profession demand that all members of the medical community remain vigilant in rejecting participation on any level.
Lethal injections were introduced as the primary method for execution in 1977, following collaboration between doctors and policy makers. The protocol was explicitly designed to, “sanitize executions, since the older methods—hanging, electrocution, and chemical gassing—were considered to be inhumane.” Hanging resulted in a minutes-long death, as the best-case scenario was a break at the C2 vertebrae, paralysis of the diaphragm, and ultimately suffocation. Electrocution caused the, “cooking of flesh and igniting of prisoners,” and often required repeated jolts before death. Asphyxiation from cyanide gas in a chamber was described as so gruesome that in a 1992 execution, “reporters began crying, the attorney general committed, and the prison warden announced he would resign if forced to conduct another such execution.” Another method, firing squad, came to be viewed as bloody and uncontrolled after riflemen’s aim proved to be unreliable.
While these methods were never declared unconstitutional, most states distanced themselves after backlash, adopting lethal injection protocols that “medicalized” (and by some accounts, “humane-ized”) the process. For the past few decades, most states have employed a method that involves the use of an anesthetic (such a midazolam or sodium thiopental), a paralytic (such a pancuronium bromide or vecuronium bromide), and potassium chloride, which stops the heart. Now, however, most methods are back in play – and medical practitioners continue to remain involved.
Clinician Participation in Executions is Either Wrong or Misguided
Clinicians might participate in executions out of an inappropriate commitment to capital punishment; this position of leveraging medical education and credentials to punish or harm has no grounding in ethical conversation. It is entirely inappropriate to undermine trust in the medical profession in service of one’s political or philosophical beliefs – those ought to be relegated to the voting booths.
However, some practitioners might be present at an execution out of a well-intentioned, but misguided commitment to preventing suffering. Their reasoning is along the lines, “If states are proceeding with an execution, shouldn’t a clinician be present to ensure there is no undue harm or suffering?” Writing on lethal injections, Dr. Sandeep Jahaur writes in the New York Times, “Barring physicians from executions will only increase the risk that prisoners will unduly suffer,” in violation of the Hippocratic Oath and the 8th Amendment of the US Constitution. He points out that no ethics board would allow the testing of execution drugs on human participants, therefore, in the absence of a “controlled investigation” it is important that a doctor is present to assist when things go awry.
Dr. Jahaur adds that if doctors (or other clinicians) do not assist, people with less experience are often called upon to insert catheters, assess and insert the IVs, mix and administer the drugs, monitor a patient’s vital signs, then confirm death; and of course, step in if anything goes wrong. Dr. Atul Gawande agrees that it is unlikely that a lethal injection could be performed without a physician without the occasional tragic mistake. As recently as October of 2014, the lack of involvement from clinicians resulted in the administration of an incorrect drug to an inmate – resulting in forty-three minutes of writhing and groaning before he died.
The Case for Ending Practitioner Participation
There is no denying that these cases of suffering are disturbing and compelling. Ultimately, however, the bioethical case for participation is grossly outweighed by the case against it: medical involvement on any level intrinsically violates the ethical principles of autonomy, beneficence, non-maleficence, and justice – compromising the foundations of the medical system.
Assuming the inmate is a patient, it is impossible to respect his or her autonomy. Clinicians ought only to provide treatment with informed consent, and patients can only give that consent if they are, in fact, patients, and freely weighing that decision. An inmate sentenced to die does not have this capacity or agency. The procedure furthermore violates the principles of beneficence and non-maleficence, by ending a patient’s life: practitioner participation or intervention cannot be considered therapeutic or curative. The end is death, not as a palliative measure or to prevent suffering, but as a punishment. (Equally, studies show the more medicalized lethal injection procedure is in and of itself is flawed—both in its design and implementation. Clinicians ought not to perform a procedure which does not have a high chance of succeeding in its desired ends.) And one only has to look at the statistics surrounding the death penalty to find it unjust: people on death row are not getting their just due from the medical system, many are not getting their just due from society as this punishment is prescribed disparately, and still more are condemned to death while innocent.
Some might argue that the person on death row is not a patient. Dr. Joel Zivot of Emory University writes that an inmate facing death is not a patient, “by virtue of being a connected to an intravenous device and having a doctor in a lab coat standing by.” If an individual is not a patient, it is possible, that the principles of biomedical ethics do not apply. That conclusion would be incorrect: The Hippocratic Oath outlines that a medical practitioner has obligations to all people regardless of their status as a patient. It furthermore states that medicine will only be applied for the benefit of the sick, and that is inappropriate for a clinician to “play God.” With these tenets in mind, it would be a violation of the bioethical framework and the ethical obligations of the profession, to participate in executions.
It is, in many ways, a prisoner’s dilemma: If all clinicians participate capital punishment, it signals that the practice of involving practitioners in procedures designed to harm is acceptable and the foundational ethics of the medical system are suggestions. If one clinician participates, it signals that the practice is acceptable enough to continue and the foundational ethics of the medical system apply selectively. But if no clinicians participate, it signals the practice is objectionable and medical ethics will be upheld universally.
States will continue to require medical participation in their execution protocols, but legally, individuals can choose to participate or not participate. And they ought not to: it is ethically wrong for clinicians to participate in execution. As George Annas states: “Physicians should not lend their medical expertise to the state to make executions more palatable to the public, even by advising on drug protocols, doses, and routes of administration.” Regardless of their stance on capital punishment, medical practitioners should not allow themselves to be pawns as states continues to play a political game with human lives, public opinion, and the courts – we must be committed preserving the ethical foundations of the medical profession.
Authors: L. Elisabeth Armstrong
Doctoral Candidate, Loyola University Chicago
Affiliate Faculty, College of Undergraduate Studies, Colorado Christian University
Competing interests: None declared.