pages 1043 and
als and that organized medicine has
1047
an obligation to permit physician
participation in legal
execution. By participation, I mean to
the extent necessary to ensure a good
death. This includes
designing protocols both in general and for specific
condemned
persons and participating in the performance of
these
protocols, up to and including gaining intravenous
access and giving drugs.
I will not address the policy of capital punishment. Although
numerous
issues surround capital punishment (appropriateness,
fairness, and
effectiveness as a crime deterrent,
etc), they are beyond the scope of this
article. The
purpose of this commentary is to address physician
participation
in the ongoing practice of lethal injection.
THE NEED FOR PHYSICIAN PARTICIPATION
Lethal injection is the predominant form of execution in the
United
States, in part because it is considered more humane
than hanging,
electrocution, and chemical asphyxiation. In
1977, an anesthesiologist
suggested a process that appeared
to mimic a typical induction of
anesthesia: sodium thiopental
to cause unconsciousness, pancuronium bromide
to
From the Department of Anesthesiology, Perioperative and Pain Medicine,
Children’s Hospital Boston, Boston, MA.
The opinions in this commentary are entirely those of the author and do not
reflect the views of his hospital (Children’s Hospital Boston), academic
institution
(Harvard Medical School), principal professional society (the
American
Society of Anesthesiologists), or any other organization with which
he is
affiliated. The author acknowledges that—contrary to his own views—the
American Society of Anesthesiologists “continues to agree with the position
of
the American Medical Association on physician involvement in capital
punishment”
and wholly repudiates physician participation in capital
punishment.
(Available at:
www.asahq.org/publicationsAndServices/standards/41.pdf.
Accessibility verified April 26, 2007.)
Individual reprints of this article are not available. Address
correspondence to
David Waisel, MD, Department of Anesthesiology, Children's
Hospital Boston,
300 Longwood Ave, Boston MA 02115 (
david.waisel@childrens.harvard.edu).
© 2007 Mayo Foundation for Medical Education and Research
For personal use. Mass r
For personal use. Mass rFor personal use. Mass
repr
epreproduce only with per
oduce only with peroduce only with
permission fr
mission frmission from
omom Mayo Clinic Pr
Mayo Clinic
PrMayo Clinic Proceedin
oceedinoceeding
ggs.
s.s.
PHYSICIAN PARTICIPATION IN CAPITAL PUNISHMENT
paralyze the muscles, and (in the case of lethal injection)
potassium
chloride to stop the heart.6
In anesthetic practice, after a drug to induce anesthesia
(like sodium
thiopental) is given, anesthesiologists test for
adequate depth of
anesthesia, sometimes using a hands-on
assessment like an eyelash reflex
(touching the eyelashes to
see if the eyelids flutter). A normal induction
dose of 3 to 5
mg/kg of thiopental would be expected to produce
unconsciousness
in approximately 30 seconds and peak respiratory
depression in 1 to 1.5 minutes.7 It is not uncommon for
respiratory
attempts to return shortly thereafter. Pancuronium
bromide, a paralytic with
no anesthetic properties,
is given in a dose of 1 mg/kg and within 4 minutes
produces muscle relaxation to facilitate tracheal intubation.8
San Quentin Operational Procedure No. 770 describes
how a typical
lethal execution is to be done9; 2 intravenous
lines are inserted, and
saline flows through 1 of the lines.
Individuals other than the condemned
person leave the
room. The door is sealed. Through injection ports located
outside the room, 5 g of sodium thiopental (ie, 10 times the
500-mg
induction of anesthesia dose for a man weighing
100 kg) is given in “[A]
steady even flow…maintained
with only a minimum amount of force applied to
the syringe
plunger.” The intravenous line is then flushed with 20
cm3
of normal saline. Two syringes of 50 mg of pancuronium
bromide in 50 cm3 of
diluent (ie, a total of 100
mg, 10 times the 10-mg dose given for a man
weighing 100
kg) are then “injected with slow, even pressure on the
syringe plunger,” and the intravenous line is flushed with
20 cm3 of
normal saline. Two syringes of 50 mEq of
potassium chloride in 50 cm3 of
diluent (a total of 100 mEq
of potassium chloride) are then injected.9
If this process is performed correctly, the inmate will be
unconscious
before receiving pancuronium bromide and
potassium chloride.7, 10 These
massive doses of sodium
thiopental should both stop breathing and cause
unconsciousness
in 1 minute.11 In the absence of a hands-on
assessment
of anesthetic depth, sustained apnea becomes a
reasonable surrogate for
adequate delivery of the massive
doses of sodium thiopental. Sustained apnea
guarantees a
sufficient depth of anesthesia.
In contrast, spontaneous ventilation after sodium thiopental
indicates
that the desired dose of sodium thiopental
was not delivered. Spontaneous
ventilation does not indicate
awareness, but it also does not confirm
anesthesia.
The presence of apnea after administration of pancuronium
bromide is
not a guarantee that the sodium thiopental
was delivered. A dose that is 3
times a normal intubating
dose of pancuronium (ie, 30 mg instead of 10 mg in
a man
weighing 100 kg) will cause muscle relaxation within 1
minute.8
Thus, only a fraction of the pancuronium bromide
needs to be successfully
administered to cause apnea. Ap
nea after pancuronium bromide, instead of after sodium
thiopental,
does not indicate that the inmate was anesthetized
before the pancuronium
bromide. If the inmate was
not anesthetized before the administration of
pancuronium
bromide and potassium chloride, the inmate may have the
sensation of paralysis without anesthesia (known as awareness)
and may
feel the burning of the highly concentrated
potassium chloride.
One problem with lethal injection is obtaining venous
access, leading
to extensive and painful attempts, including
placement of central venous
access.12 A more concerning
problem is inadequate medication delivery during
the execution.
This can occur from technical errors and procedural
errors (Table 1). For example, in 6 executions since 1999 in
California,
the condemned had reactions such as respirations
and tachycardia, which may
have been consistent with
awareness or pain.11 The possible patterns of
successful and
botched lethal injection are listed in Table 2 and Table 3.
Other problems exist with drug delivery. In 1994 in
Illinois, with use
of a machine to inject the sodium thiopental
and pancuronium bromide, the
intravenous catheter
clogged, leaving the inmate snorting and his belly
“heaving
up and down with the breathing.”14 After the botched execution,
the spokesman for the corrections department
stated, “It looks like the
two drugs just don’t mix…they get
tacky and don’t flow when they come
together.”18 The same
problem had happened the only previous time the
machine
was used 4 years earlier.
In 1995 in Missouri, the arm restraint functioned as a
tourniquet,
prolonging the process and bringing into question
the sensations of the
condemned person.21 The county
coroner said that the heartbeat stopped
several minutes
after the strap was loosened, suggesting that the sodium
thiopental, pancuronium bromide, and potassium chloride
entered the
bloodstream at the same time, not giving the
sodium thiopental time to work,
and increasing the likelihood
that the condemned person was aware while
paralyzed
or felt the burning from the potassium chloride. The
inmate
was “gasping, slightly convulsing” 7 minutes after
initiation of the lethal
injection.21 The coroner declared that
it was “a little error. It’s not like
the guy suffered.”21
In 2006 in Ohio, after a difficult insertion of an intravenous
line,
the execution team chose not to insert a second
intravenous line (as
apparently called for by prison procedures)
22 and injected the drugs. The
inmate appeared to
have fallen asleep, with shallow breathing. But shortly
thereafter, he “raised his head and, frustrated, shook it back
and
forth, repeatedly declaring, ‘it don’t work.’”22 The
execution team obtained
additional intravenous access,
mistakenly connected the intravenous line to
the failed
intravenous catheter, administered the drugs, noticed a reaction
by the inmate, subsequently reconnected the intrave-
For personal use. Mass r
For personal use. Mass rFor personal use. Mass
repr
epreproduce only with per
oduce only with peroduce only with
permission fr
mission frmission from
omom Mayo Clinic Pr
Mayo Clinic
PrMayo Clinic Proceedin
oceedinoceeding
ggs.
s.s.
PHYSICIAN PARTICIPATION IN CAPITAL PUNISHMENT
TABLE 1. Sources of Error in Lethal Execution
Steps of execution
Sources of potential error
1. Prepare medications, including mixing
sodium thiopental from powder
Improper and improvisational mixing of sodium thiopental10,13
2. Obtain
intravenous access
Difficulty14,15
Not placed intravascularly16
Protocols do not address what should happen if obtaining peripheral
venous access is not possible9,15
3. Inject sodium thiopental
Burning and blistering if injected into
subcutaneous tissues16,17
Human error10,13
4. Assess anesthetic depth
Not assessed. improperly assessed, false proxies of anesthesia15
Individual not physically present to assess depth of anesthesia10,13,15
Inadequate human skill10,15
5. Inject pancuronium bromide
Muscle
relaxation may hide signs of inmate distress10,13,15
Precipitation with
sodium thiopental15,18,19
6. Repeat doses of pancuronium bromide
and
potassium chloride if necessary Poorly designed protocols, no repeated doses of
sodium thiopental10,15
7. Other problems
Deviation from protocols15
Absence of written protocol13
Inadequate records; no assessment of the
quality of executions10, 15
No meaningful training, supervision, and
oversight of the execution team10,13,15,20
Inadequate lighting, overcrowded
conditions and poorly designed facilities in
which the execution team must
work10,13,15
Lack of respect for “solemn” task of executions9
nous line to the correct catheter, and administered the
drugs. The
inmate “raised his head about a dozen times and
appeared to try to speak”22
before dying.
In 2006 in Florida, 2 intravenous catheters were placed
in the
condemned person, and it appears that both catheters
infiltrated into the
surrounding tissues, so that the drugs
were injected into the tissues and
not into the veins.16
“More than 20 minutes after the first injection, [the
inmate]
appeared to be mouthing words, clenching his jaw, and
grimacing.”23 The inmate received a second dose of
drugs.23 Likely as a
result of the drugs entering the tissues
instead of the vein, the inmate had
footlong “chemical
blisters on both of his arms.” 16 An anesthesiologist
familiar
with the case testified that the accounts of the inmate
breathing “like a fish out of water” were consistent with a
“person who
is partially paralyzed and struggling for
breath.”16 This event led the
Governor of Florida to declare
a moratorium on state executions pending a
report from a
concurrently designated commission.
Attempts to tweak operating procedures for lethal injection
are
insufficient. The Morales Memorandum of Intended
Decision reported that in
February 2006, officials in California
decided that “a continuous infusion
of sodium thiopental
during the administration of pancuronium bromide and
potassium
chloride would be added.”10 As in the 1994 case in
Illinois,
such an approach would lead to a precipitate being
formed and subsequent
clogging of the intravenous catheter.
If the problem is the delivery of the drugs and the
assessment of
anesthetic depth before injection of a para
lytic and potassium chloride, then a person who is wholly
competent
at managing intravenous infusions and assessing
for anesthetic depth is
needed for humane lethal injection.
Although nonphysicians could perform
this procedure
(as the AMA has argued), they would need to be trained by
physicians to develop these skills. In the absence of extensive
training
and refresher courses for nonphysicians (which
would seemingly fly in the
face of the AMA statement), the
most skilled individuals would be those who
intravenously
inject medications routinely to obtain an end result.
ARGUMENTS REGARDING ROLES OF PHYSICIANS
AND THE GOVERNMENT
Physicians have an obligation to be altruistic. Some interpret
this
obligation to prohibit physician participation in the
execution of an
unwilling individual (reports of condemned
persons choosing to die rather
than prolong their
stay on death row notwithstanding24), even if the
condemned
person desires the aid of a physician to make death
more
humane. The AMA addresses this point directly:
“While physician
participation may potentially add some
degree of humaneness to the execution
of an individual, it
does not outweigh the greater harm of causing death to
the
individual.”4
Death, however, is not the sole issue. Physicians are
permitted to let
people die, such as in the withdrawal or
withholding of care. Physicians are
even permitted to be a
proximate cause of death, in the sense that sometimes
the
medications needed to treat pain and discomfort uninten-
For personal use. Mass r
For personal use. Mass rFor personal use. Mass
repr
epreproduce only with per
oduce only with peroduce only with
permission fr
mission frmission from
omom Mayo Clinic Pr
Mayo Clinic
PrMayo Clinic Proceedin
oceedinoceeding
ggs.
s.s.
PHYSICIAN PARTICIPATION IN CAPITAL PUNISHMENT
TABLE 2. Proper and Improper Drug Administration Procedures for Lethal
Injection*
Procedure Consequence
Proper: STP.Apnea.P.KCL Time is given for inmate to be anesthetized by
sodium thiopental, as confirmed by apnea, then paralyzed,
then given
potassium chloride
Improper: STP.P.Apnea.KCL Inmate is administered paralytic medication
before becoming apneic, raising the possibility
that insufficient sodium
thiopental was delivered to the venous circulation. Inmate may be aware of
being paralyzed and may feel the burning of potassium chloride. With 100 mg
of pancuronium bromide
being administered, even one-third of the intended
dose would cause paralysis within 1 min
Improper: STP, P, KCL (at the same time) No time is given for the sodium
thiopental to work and no time is taken to assess whether
the sodium
thiopental has caused apnea
Improper: STP.P.KCL...P, KCL In some protocols, the pancuronium bromide and
potassium chloride are repeated at 10 min
if the inmate is not dead. This
indicates that the drugs were not delivered adequately
(ie, insufficient
doses) to the venous system (because if they had been, the inmate would be
dead). Repeating pancuronium bromide and potassium chloride without the
sodium thiopental increases
the likelihood of awareness
*KCL = potassium chloride; P = pancuronium bromide; STP = sodium
thiopental.
tionally hasten death. Public policy has shifted in some
countries and
states to allow physicians to assist in the
death of a patient. For example,
from 1998 to 2002 in
Oregon, 129 people self-administered legally prescribed
lethal medications.25 It is even becoming accepted that
physicians may
directly cause death. In the Netherlands,
termination of life on request and
assistance with suicide
are not treated as criminal offenses if certain
requirements
are met.26 The primary distinction is that in the
aforementioned
examples, death is considered in the best interest of
the
patient by the patient or concerned surrogate decision-
makers. In capital
punishment, death is involuntary and is
not in the best interest of the
individual.
If one accepts the premise that physician participation
will lead to
more humane executions, does the fact that
death is not in the inmate’s best
interest obviate a request
for relief from suffering? Does physician
participation
mean that physicians are acting as tools of the government,
helping the state carry out judicial punishment? More to the
point, does
acting in a manner concordant with the goals of
the government make a
physician a tool of the government?
Some argue that physician participation constitutes inappropriate
use
of physicians as a tool of the government.27
Historically, when the
government has used physicians to
implement policies that did not benefit the individuals affected,
the
health of the society benefited. For example,
physician participation in
quarantine of individuals with
infectious diseases, while limiting the
freedom of movement
of some individuals, resulted in an overall health
benefit of minimizing the spread of disease. This societal
health
benefit legitimizes physician participation in quarantine,
but physician
participation in capital punishment
provides no societal health benefit.
According to Truog
(Robert D. Truog, MD, Professor of Medical Ethics,
Anesthesia, & Pediatrics, Harvard Medical School),27 “A
physician's
participation in capital punishment does nothing
to promote the moral
community of medicine. Indeed,
such participation offends the sense of
community by prostituting
medical knowledge and skills to serve the purposes
of the state and its criminal justice system.”27 If the
physician’s
primary role is to ensure a successful execution,
such that a physician
would be willing to do it in an
inhumane way, then the physician is being
used as a tool of
the government to further state goals. But a legitimate
question is whether the physician is acting as a tool of
the individual
to minimize suffering and further the
individual’s goals or whether the
physician is acting as a
tool of the government to ensure a successful
execution.
TABLE 3. Five Specific Cases of Lethal Injection in California*11
Minutes
Inmate, year 0 1 2 3 4 5 6 7 8 9 10
Siripongs, 1999
Babbitt, 1999
Rich, 2000
Anderson, 2002
Allen, 2006
STP
STP
STP
STP
STP
P/apnea
P
P
P Apnea
Apnea
Apnea
P
Apnea
*All cases follow the example of STP.P.Apnea.KCL. One case, Williams, 2005,
is not included because
inadequate recordkeeping makes it unclear whether
apnea occurred concurrent with the pancuronium bromide
(6 min after sodium
thiopental) or concurrent with the potassium chloride (12 min after sodium
thiopental and 6 min
after pancuronium bromide). KCL = potassium chloride; P
= pancuronium bromide; STP = sodium thiopental.
For personal use. Mass r
For personal use. Mass rFor personal use. Mass
repr
epreproduce only with per
oduce only with peroduce only with
permission fr
mission frmission from
omom Mayo Clinic Pr
Mayo Clinic
PrMayo Clinic Proceedin
oceedinoceeding
ggs.
s.s.
Although the outcome may be death, the act of the physician
may be
solely to provide comfort. In this case, a
physician is not acting as a tool
of the government; he is
acting as a physician whose goals temporarily align
with
the goals of the government. Clearly, there are potential
harms in
permitting physicians to act in this way. But these
harms need to be weighed
against the benefits to the condemned.
Physicians are responding to the
immediate goals
of the condemned. To prohibit this aid because the use of
the physician as a tool for the individual (good reason)
happens to
occur in conjunction with the use of the physician
as a tool for the
government (bad reason) requires a
compelling reason to forego our
responsibilities to the individual.
Indeed, a principled stance of
prohibition regressively
harms society’s most vulnerable individuals.
Consider
this: a prison warden “testified that he believes a
‘successful
execution’ is simply one where ‘the inmate
ends up dead at the end of the
process.’ When asked
whether he considered a successful execution to mean
anything
else, he responded, ‘I’m thinking not.’”10 If you were
to be
executed, would you prefer to have a competent and
caring individual obtain
venous access quickly and minimize
any chance of pain or awareness?
This argument, of course, is susceptible to comparison
with the Nazi
concentration camp physicians’ argument
that they were “morally neutral
bystanders” who
followed the law and who compassionately spared
concentration
camp “subhumans” from a slower and more
painful death.28
But I argue that this is too free an analogy.
The process by which the laws
are developed and the
underlying intent of the laws (as well as can be
surmised)
are relevant in determining whether government authorization
makes physician participation in capital punishment
legitimate and
permissible. We live in a society
open to free speech and public protest,
one in which
citizens have a remarkable ability to participate in the
development of laws and policies. Furthermore, capital
punishment is
public and avidly discussed, not hidden. Of
importance, Nazi physicians
thought “they were acting
for the good of the whole nation and society.”28
Such
notions of prioritizing the state (or even certain communities)
over individuals often lead to harm. In Nazi Germany,
the purpose of the
government intervention (concentration
camps, genocide, etc) was the
actualization of
political goals. In contrast, capital punishment does not
advance a comprehensive political goal.
SLIPPERY SLOPE ARGUMENTS REGARDING
OTHER HARMS OF PARTICIPATION
Some worry that permitting physician participation in capital
punishment will erode a physician’s ability to be compassionate
and
independent, will make it easier to permit
PHYSICIAN PARTICIPATION IN CAPITAL PUNISHMENT
physicians to participate in government-sanctioned killing,
and will
harm public trust.5,12,27,29 These arguments are
rooted in the psychological
slippery slope by claiming that
one event will lead to another. The
usefulness of the slippery
slope argument is suspect.
We should always be concerned about permitting actions
that would lead
us down the psychological slippery
slope to causing harm. However, the
problem with many
slippery slope arguments is that they do not precisely
clarify how permitting the debated action will lead to another,
often
unspecified, action. In a different context, Burgess
(John Burgess, BA, MA,
DPhil, Faculty of Arts, University
of Wollongong, New South Wales,
Australia)30 labeled
this the One Great Slippery Slope Argument: “[I]f we
adopt…a particular change in our practices it just might
start a slide
into a moral deterioration that ends with our
committing Nazi-style
atrocities.” The argument that a
slope exists is often used as a poor
substitute for an argument
about how the debated action will cause the slide
down the slope. Furthermore, while uncritically accepting
as legitimate
the sketchy possibility that society could slide
down the slope, slippery
slope supporters often demand a
detailed argument about how it could not
occur.30
A good psychological slippery slope argument is detailed
and modest.30
The arguments connecting disaster
with physician participation in capital
punishment do not
provide a clear and detailed account of how participation
leads to calamity. Consider the most extreme and visceral
argument, that
permitting physician participation would be
the first step down the slope to
Nazi-like atrocities.29,31
Such a descent would require a series of
extraordinary
events that culminate in a self-serving totalitarian regime
and a dominant social group, whose primary concern is the
health of the
social organism and the exploitation of an
identified other.30 Perhaps most
importantly, the Nazi
premise of society as a biological organism led to the
concept
of medicalized killing as “killing as therapeutic imperative.”
32
This medicalized view of society legitimized removing
the disease (ie,
killing) of those “unfit to live,” just like
antibiotics kill bacteria or a
surgeon removes an appendix.
This thinking provided a rationale for society
(and thus
physicians) to kill. There is no reason to believe that physician
participation in capital punishment would lead to such a
radical
restructuring of society and society’s views.
With that preamble, we will examine the claims. We do
not know the
effects of self-chosen participation in executions
on a physician’s ability
to act with compassion and
independence. We do have information on the
effects on
members of execution teams who carry out executions (eg,
secure inmate, obtain intravenous access, inject medications)
in 3
Southern states.33 Individuals on execution teams
use selective moral
disengagement, moral justification, eco-
For personal use. Mass r
For personal use. Mass rFor personal use. Mass
repr
epreproduce only with per
oduce only with peroduce only with
permission fr
mission frmission from
omom Mayo Clinic Pr
Mayo Clinic
PrMayo Clinic Proceedin
oceedinoceeding
ggs.
s.s.
PHYSICIAN PARTICIPATION IN CAPITAL PUNISHMENT
nomic and security justification, dehumanization, and
nonresponsibility
to be able to perform executions. Executioners
compartmentalize work and
home life, construe participation
in executions as a positive activity with
“high
moral and societal purposes,” and become more desensitized
as they
participate in more executions. Lifton (Robert Jay
Lifton, MD, is a
psychiatrist who has studied and written
extensively on mental adaptations
to war, atrocities, and war
crimes)32 described compartmentalization in the
context of
Nazi physicians as the experience of the “doubling” of the
self, in which the 2 selves are partitioned from each other.
This
mechanism of “doubling” enabled Nazi physicians to
be evil at one moment and
caring in the next moment and is
what Lifton thought permitted specific
individuals with what
appeared to be relatively appropriate moral values to
slide,
incrementally, into performing atrocities. The concern is that
compartmentalization by physicians participating in capital
punishment
could similarly harm physicians.
However, the application of this study of prison workers to
physicians
is unclear. Physicians participating in capital punishment
have the ability
to view their actions as helping the
condemned. Indeed, to me, participation
in a horrible detail to
benefit another person is true altruism.
Additionally, that article
did not consider what sort of interventions may
help those
who participate in capital punishment (eg, caps on number of
cases in which an individual participates, mandatory counseling).
Even
if a few willing physicians were harmed, it is hard
to construct a detailed
slippery slope argument that connects a
few physicians undergoing
compartmentalization with widespread
societal harms. Furthermore, of
importance, physicians
will not be required to participate because most
states have
conscience clauses that permit caregivers to opt out of care
they deem morally objectionable.34
Beyond the effect on specific physicians, there is concern
that
permitting physicians to appear to be tools of the
government by
participating in capital punishment will
make it psychologically easier for
physicians to be used in
inappropriate ways.27,29 Although this may be true,
the possibility
of an event is not the step-by-step connection
between
an event and a specified harm that constitutes
evidence in a slippery slope
argument. In addition, I argue
that our society is more than capable of
withstanding the
psychological slippery slope.
One argument that supports the slippery slope claim is that
physicians
were prime leaders in Nazi Germany and if the
physicians of that time had
held the line and had not acquiesced
in devaluing human life (as physicians
in the United
States would by aiding the process of capital punishment), it
is
unlikely that Nazi Germany would have happened.
The idea that protesting physicians could have been a
bulwark against
harm in Nazi Germany is speculative
counterfactual history. Proponents of
this argument high
light that physician participation in the Nazi party eclipsed
other
professions; 45% of doctors joined the party, a full
20% more than lawyers
and teachers and greater than 35%
more than the general population.35
However, the many
physicians who joined the party around 1937 tended to be
unemployed. Their desire for participation most likely
had to do with
navigating the central bureaucracy of medicine
and a craving for “enduring
professional and socioeconomic
security and desired recognition.”35 Thus,
rather than
lead change, most party physicians were “petty opportunists”
who joined in response to the societal changes.31
Finally, it has been argued that physician involvement,
even if or
especially because of government imprimatur,
will lead to a loss of public
trust, perhaps leading patients to
wonder about what these physicians and
what medicine
will do to them. Patients may wonder, for example, that if
physicians are “used to killing” people, then what would
hold physicians
back from making recommendations not in
the patient’s best interests.
The concerns about how physician participation in capital
punishment
would lead to a loss of public trust would
have to be explicated. To me,
this can be no more harmful
to the public trust than the 40-year Tuskegee
Syphilis
Study, in which the US Public Health Service withheld
treatment
from African American men to determine the
effects of syphilis; the
government radiation experiments,
in which many were experimented on without
their knowledge
or consent; the Sunbeam fiasco, in which the AMA
agreed
to and then renounced a deal to endorse Sunbeam
medical products that the
AMA had no plans to test; and the
inability of journal editors to police
themselves for conflicts
of interests and the withholding or fabrication of
information such as with cloning.36-40 These examples are
not presented
to say that one wrong should permit another.
They are presented to say that,
to me, these are likely more
harmful to the public trust. The effects of
these were more
widespread. Yet organized medicine has weathered these
events. If permitting physician participation in capital punishment
is a
matter of weighing the risks and benefits of
participation, then using the
argument of loss of public trust
to prohibit participation would require
that harm from the
loss of public trust be substantial. No evidence suggests
that physician participation in capital punishment would
be more
damaging to the public trust than these events.
Indeed, organized medicine
has already weathered physician
participation in capital punishment “at
every stage,
whether preparing for, participating in, or monitoring
executions.”41
THE MISAPPLIED ARGUMENT OF PALATABILITY
A misplaced argument is that physician involvement will
make executions
smoother and thus more palatable, de-
For personal use. Mass r
For personal use. Mass rFor personal use. Mass
repr
epreproduce only with per
oduce only with peroduce only with
permission fr
mission frmission from
omom Mayo Clinic Pr
Mayo Clinic
PrMayo Clinic Proceedin
oceedinoceeding
ggs.
s.s.
creasing the likelihood of abolishing the death penalty.41
Therefore, physicians, dedicated to improving the quality
of life as the
patient defines it, should not participate in any
action that increases
acceptance of capital punishment.42
The implicit assumption is that
physicians, by definition,
should oppose capital punishment.42 This
connection, however,
has no place in this discussion. It is organized
medicine’s obligation to lead, and organized medicine is
free to make
statements regarding the appropriateness of
capital punishment. But to use
participation as a stalking
horse for abolition of capital punishment is
disingenuous.
This discussion is not about the appropriateness of capital
punishment; this discussion is about physician participation
in capital
punishment.
THE VALUE AND STRENGTH OF SOCIETY
I have used the idea that our free and open society is a
powerful
bulwark against the potential harms of physician
participation in capital
punishment. I am fully aware that
many enlightened and open societies have
sunk into totalitarianism.
It would be arrogant to suggest that our
society is incapable of such a fall. But that does not mean
it is likely
that physician participation in capital punishment
would be the tipping
point or would even be contributory.
I contend that, like the Nazi society,
such a fall
would be a function of widespread socioeconomic factors
and
that egregious medical abuse would follow, not precede,
societal changes. I
may be naive, but I believe our
society has successfully weathered
challenges, and I have
faith in the strengths of our society and the
sturdiness of
its processes. In support of this argument, consider the
experiences with physician aid-in-dying in Oregon and
with euthanasia in
the Netherlands, both of which some
considered potential pathways to
disaster.43 In Oregon,
the 5-year experience indicated no improprieties in
physician
aid-in-dying. In the Netherlands, the rate of uncommon
improprieties, such as nonvoluntary euthanasia, has
remained stable,
with no indication of impending disaster.
44 In contrast, in an interview
study, leaders in the
Netherlands appeared disturbingly complacent about
reports
of euthanasia without explicit patient request.45
Whether such
unsettling attitudes will lead to future
harms is unknown. Nonetheless,
these 2 examples indicate
that the presence of a slippery slope does not
necessarily
lead to descent down the slope. I argue that this
stability
is in large part due to society. In regard to analogies
with Nazi Germany,
we must be capable of and
willing to make distinctions. To argue that the
wanton
torturing and killing of at least 11 million individuals is
equivalent to the extensive processes of capital punishment
is
fallacious both by numbers and by process. Indeed,
to me, comparisons to
Nazi Germany are absurd,
PHYSICIAN PARTICIPATION IN CAPITAL PUNISHMENT
and if I had my way, this discussion would proceed without
those
analyses.
IS THIS DISCUSSION NECESSARY?
Capital punishment could easily be performed without the
use of venous
access. The use of medications associated
with treatment of humans for
capital punishment is an
accident, the result of a decision to ask a
physician rather
than a veterinarian for help. One can imagine, for example,
that a veterinarian could provide an acceptable alternative,
such as
subcutaneous administration of etorphine hydrochloride
(a synthetic opioid)
and acepromazine maleate (a
phenothiazine) to effectively cause
cardiopulmonary arrest.
Indeed, with subcutaneous injection, concerns about
intravenous lethal injection would be nonexistent, and most
of the
problems discussed in this article would be moot.
Although the literature is
sparse, I imagine a number of
combinations could be delivered subcutaneously
or intramuscularly
that would anesthetize an inmate before causing
death.
RECOMMENDATIONS
The current AMA policy increases the chances of a botched
execution. It
seems cruel to permit capital punishment but
not to permit participation of
those who are capable of
performing it humanely. If capital punishment is a
reality in
the United States, then for the sake of the condemned
organized medicine should address how it should be performed.
The AMA
statement should be revised to address
complex issues, some of which I
briefly discuss.
Astute readers will note that I have avoided the use of
the term
patients when referring to inmates. I now advocate
for the use of the word
patient in this context. I conceptualize
physician participation in capital
punishment as an
altruistic practice of medicine. The future patient should
request physician participation, and the physician should
be licensed to
practice medicine in that state. To emphasize
the altruistic nature of the
service, physicians should refuse
payment for this service. Although the
fact that physicians
are performing capital punishment should be public
knowledge,
specific physicians who perform capital punishment
should be
permitted to remain anonymous. I do realize that
this connotes shame, but
anonymity is necessary to protect
a physician and his or her family from
retaliation. Physicians
who serve this patient community should receive
counseling, and studies should be implemented to determine
whether there
should be limitations, such as the number
of executions that a physician may
perform. Physicians
should be permitted to be involved in other ways to
improve
the humaneness of capital punishment, such as publicly
suggesting and debating protocols or initiating and
managing databases.
Indeed, permitting physician partici-
For personal use. Mass r
For personal use. Mass rFor personal use. Mass
repr
epreproduce only with per
oduce only with peroduce only with
permission fr
mission frmission from
omom Mayo Clinic Pr
Mayo Clinic
PrMayo Clinic Proceedin
oceedinoceeding
ggs.
s.s.
PHYSICIAN PARTICIPATION IN CAPITAL PUNISHMENT
pation in developing protocols is likely the best way to
achieve humane
executions while enabling physicians not
to directly participate in the act
of lethal injection.10
One issue that has come to the forefront is whether the
government
should be able to mandate physician participation.
13 It would be hard to
argue that the government’s
interest is altruistic, that is, focused on
removing harm from
the patient. The government’s interest is better
understood as
being able to achieve capital punishment as easily as
possible.
Permitting the government to mandate physician participation
is wrongheaded because it verges on making the
physician a tool of the
government, not of the patient.
Some have suggested that the appropriate physician to
perform capital
punishment is the anesthesiologist.10,13 To
be sure, there are superficial
similarities in appearance between
capital punishment and induction of
anesthesia. But
such similarities are an accident of history. Many
physicians,
including intensivists and emergency department
physicians,
have the ability to manage intravenous infusions
and assess for anesthetic
depth or suggest alternative
drugs. Indeed, although this article is focused
on physician
participation, many of these arguments are equally valid
for others who develop caregiver-patient relationships and
have the
requisite skills. Space does not allow a detailed
analysis for different
professions.
Physician participation in capital punishment does have
associated
harms. But the question is whether the harms outweigh
the benefits. Because
the potential benefits are sufficiently
clear and the potential harms are
poorly explicated, we
should permit physician participation in capital
punishment.
REFERENCES
1. Jones GR. Judicial electrocution and the prison doctor. Lancet.
1990;335(8691):713-714.
2. Bohm RM. Deathquests: An Introduction to the
Theory and Practice of
Capital Punishment in the United States. Cincinnati,
OH: Anderson Publishing;
1999.
3. Death Penalty Information Center.
Execution database: years selected
1997-2006. Available at:
www.deathpenaltyinfo.org/executions.php.
Accessed
July 3, 2007.
4. Council on Ethical and Judicial Affairs,
American Medical Association.
Physician participation in capital punishment.
JAMA. 1993;270(3):365-368.
5. Council on Ethical and Judicial Affairs,
American Medical Association.
Capital punishment. In: Code of Medical
Ethics: Current Opinions with Annotations
2006-2007. Chicago, IL: American
Medical Association; 2006:E-2.06.
6. Denno DW. When legislatures delegate
death: the troubling paradox
behind state use of electrocution and lethal
injection and what it says about us.
Ohio State Law J. 2002;63:63-260.
7. Reves JG, Glass PSA, Lubarsky DA, McEvoy MD. Intravenous
nonopioid
anesthetics. In: Miller RD, ed. Miller’s Anesthesia. 6th ed. Philadelphia,
PA: Elsevier Churchill Livingstone; 2005:317-378.
8. Naguib M, Lien CA.
Pharmacology of muscle relaxants and their antagonists.
In: Miller RD, ed.
Miller’s Anesthesia. Vol 1.6th ed. Philadelphia, PA:
Elsevier Churchill
Livingstone; 2005:481-572.
9. California State Prison, San Quentin. San
Quentin Operational Procedure
No. 770. Revised date: 6/13/03. Available at:
www.law.berkeley.edu
/clinics/dpclinic/Lethal%20Injection%20Documents/California/Morales
/Morales%20Dist%20Ct.Cp/Ex%20A%20to%20TRO%20motion
%20(Procedure%20No.%20770).pdf. Accessed July 3, 2007.
10. Morales v
Tilton 465 F Supp 2d 972 (ND Cal), December 15, 2006.
11. Morales v Hickman
415 F Supp 2d 1037 (ND Cal), February 14, 2006.
12. Gawande A. When law and
ethics collide—why physicians participate in
executions. N Engl J Med.
2006;354(12):1221-1229.
13. Taylor v Crawford 445 F3d 1095 (8th Cir 2006).
14. Chapman R. Witnesses describe killer’s ‘macabre’ final few minutes.
Chicago Sun-Times. May 11, 1994:5.
15. Brief for Amicus Curiae, Darick
Demorris Walker, Supporting Petitioner
re Hill v McDonough, US 2006 WL
558286. Available at:
www.law
.berkeley.edu/clinics/dpclinic/Lethal%20Injection%20Documents/Florida
/Hill/2006.03.06%20amicus%20walker.pdf. Accessed July 5, 2007.
16. Tisch
C. Doctor: execution flawed at start. St. Petersburg Times. February
13,
2007:1B.
17. Reich DL, Kaplan JA. Complications of cardiovascular access.
In:
Benumof JL, Saidman LJ, eds. Anesthesia and Perioperative Complications.
St. Louis, MO: Mosby-Year Book Inc; 1992:16-37.
18. Fornek S. Bad drug
mix delayed execution. Chicago Sun-Times. May 12,
1994:12.
19. Morton
WD, Lerman J. The effect of pancuronium on the solubility of
aqueous
thiopentone. Can J Anaesth. 1987;34(1):87-89.
20. Executioner needs precise
training in carrying out lethal injections.
Tampa Tribune. February 13,
2007:10.
21. O’neil T. Too-tight strap hampered execution; coroner: chemical
flow
was impeded. St. Louis Post-Dispatch. May 5, 1995:1B.
22. Provance
J, Hall C. Problems bog down execution of Clark. Toledo
Blade. May 3,
2006:A1.
23. Whoriskey P, Geis S. Lethal injection is on hold in 2 states.
The Washington
Post. December 16, 2006:A1.
24. Overall M, Smith M.
22-year-old killer gets early execution; sped-up law
adds witnesses. The
Tulsa World. May 8, 1997:A1.
25. Hedberg K, Hopkins D, Kohn M. Five years of
legal physician-assisted
suicide in Oregon [letter]. N Engl J Med.
2003;348(10):961-964.
26. van der Maas PJ, van der Wal G, Haverkate I, et
al. Euthanasia, physician-
assisted suicide, and other medical practices
involving the end of life in
the Netherlands, 1990-1995. N Engl J Med.
1996;335(22):1699-1705.
27. Truog RD, Brennan TA. Participation of
physicians in capital punishment.
N Engl J Med. 1993;329(18):1346-1350.
28. Pellegrino ED, Thomasma DC. Dubious premises—evil conclusions:
moral
reasoning at the Nuremberg trials. Camb Q Healthc Ethics. Spring 2000;
9(2):261-274.
29. Freedman AM, Halpern AL. The erosion of ethics and
morality in
medicine: physician participation in legal executions in the
United States. NY
Law Sch Law Rev. 1996;41(1):169-188.
30. Burgess JA.
The great slippery-slope argument. J Med Ethics. 1993;19
(3):169-174.
31. Lerner BH, Rothman DJ. Medicine and the Holocaust: learning more of
the lessons [editorial]. Ann Intern Med. 1995;122(10):793-794.
32.
Lifton RJ. The Nazi Doctors: Medical Killing and the Psychology of
Genocide.
New York, NY: Basic Books; 1986:15-16.
33. Osofsky MJ, Bandura A, Zimbardo
PG. The role of moral disengagement
in the execution process. Law Hum Behav.
2005;29(4):371-393.
34. Charo RA. The celestial fire of conscience—refusing
to deliver medical
care. N Engl J Med. 2005;352(24):2471-2473.
35. Kater
MH. Criminal physicians in the third reich: towards a group
portrait. In:
Nicosia FR, Huener J, eds. Medicine and Medical Ethics in Nazi
Germany. New
York, NY: Berghahn Books; 2002:77-92.
36. Jones JH. Bad Blood: The Tuskegee
Syphilis Experiments. New York,
NY: The Free Press; 1993.
37. United
States Advisory Committee on Human Radiation Experiments. The
Human
Radiation Experiments. New York, NY: Oxford University Press; 1996.
38.
Broken deal costs A.M.A. $9.9 million. New York Times. August 3, 1998:A12.
39. Our conflicted medical journals [editorial]. New York Times. July 23,
2006;4:11.
40. Bosman J. Reporters find science journals harder to
trust, but not easy to
verify. New York Times. February 13, 2006:C1.
41.
Emanuel LL, Bienen LB. Physician participation in executions: time to
eliminate anonymity provisions and protest the practice [editorial]. Ann
Intern
Med. 2001;135(10):922-924.
42. Stop killing people who kill
people [editorial]. Lancet. 2007;369:343.
43. Snyder L, Sulmasy DP, Ethics
and Human Rights Committee, American
College of Physicians-American Society
of Internal Medicine. Physician-assisted
suicide. Ann Intern Med.
2001;135(3):209-216.
44. Onwuteaka-Philipsen BD, van der Heide A, Koper D,
et al. Euthanasia
and other end-of-life decisions in the Netherlands in
1990, 1995, and 2001.
Lancet. 2003;362(9381):395-399.
45. Cohen-Almagor
R. Non-voluntary and involuntary euthanasia in The
Netherlands: Dutch
perspectives. Issues Law Med. Spring 2003;18(3):239-257.
Mayo Clin Proc. •
September 2007;82(9):1073-1080 •
www.mayoclinicproceedings.com
For personal use. Mass r
For personal use. Mass rFor personal use. Mass
repr
epreproduce only with per
oduce only with peroduce only with
permission fr
mission frmission from
omom Mayo Clinic Pr
Mayo Clinic
PrMayo Clinic Proceedin
oceedinoceeding
ggs.
s.s.