There is continued debate in the medical and legal communities regarding physician participation in the execution of prisoners who have been sentenced to death. This issue typically receives renewed attention following events such as the legalization of physician-assisted death in Canada and 6 US states, as well as Washington, DC.1,2 Some have questioned why physician-assisted death should be allowed for general citizens but not for death row inmates.3
In addition, there have been numerous botched executions in the United States — including at least 10 in the last decade alone. Several states have come under fire for their use of the controversial sedative midazolam in lethal injections, which resulted in prolonged and painful inmate deaths. In the case of one Oklahoma inmate, after it took an hour to find a vein for the first injection, a supervising physician (whose participation is said to be in violation of various sets of professional ethics) “announced that the inmate was unconscious, and therefore ready to receive the other 2 drugs that would actually kill him,” according to a 2017 report from the Death Penalty Information Center.4 “Those 2 drugs were known to cause excruciating pain if the recipient was conscious. However, Mr Lockett was not unconscious.” A few minutes after receiving these injections, the inmate was writhing, breathing heavily, and clenching his teeth. He died of a heart attack 43 minutes after the process began.
This example further called into question the belief that lethal injection is a more humane, relatively painless method of execution. Following the Oklahoma case, a group of legal experts called the Death Penalty Committee of the Constitution Project issued 39 recommendations for reforming the current approach to lethal injection. One of the recommendations calls for jurisdictions to “ensure that qualified medical personnel are present at executions and responsible for all medically-related elements of executions.”5 While some doctors and other experts support this concept, others view it as a clear violation of the Hippocratic Oath.
To further explore the issue, including the main areas of controversy and implications for physicians, Medical Bag interviewed 2 experts who have written on the topic in the Journal of Law, Medicine, and Ethics and the Canadian Journal of Anesthesia: Paul J. Litton, JD, PhD, associate dean for faculty research and RB Price Professor of Law at the University of Missouri School of Law in Columbia,6 and Joel B. Zivot, MD, FRCP(C), associate professor of anesthesiology and surgery and adjunct professor at Emory University School of Law in Atlanta, Georgia.7
Medical Bag: What are some of the main points of contention around the issue of physician participation in executions?
Dr Litton: The main points of contention concern the application of the Hippocratic ethical orientation of patient care — the idea that a physician must act in the best interest of the patient — in the context of executions. If that ethical orientation is binding in that context, does respecting the inmate mean that a physician may not participate in acts that kill that inmate? Or does respecting the inmate permit physician participation if the physician can reduce the risk for unnecessary suffering during the execution — an event that would presumably occur regardless of the physician’s participation?
Another point of debate is whether the Hippocratic Oath is binding in this context. One might think it is not because the context is very different from the normal clinical setting. On the other hand, some people argue that physicians should not participate precisely because this is a non-medical use of their skills.
Dr Zivot: The so-called “lethal injection” is currently the most common method of capital punishment in the United States. Lethal injection, as casually conceived by doctors in Oklahoma, has the look and feel of a medical act. Furthermore, some capital punishment states legislate physician involvement even when that involvement is opposed by national physician organizations and some state medical licensing boards. Ethically, physician participation in lethal injection has been rejected as not within the scope of medicine. Physician opponents of this view claim that the presence of a doctor will reduce suffering associated with death by lethal injection.
Moreover, physician proponents suggest a mandate that reconfigures lethal injection as being akin to death by a terminal illness, so the physician is practicing a form of palliative care. Doctors can only work within a doctor-patient relationship, and an inmate does not become a patient simply because a physician is present. Further, there is no evidence that suggests that a physician can reduce suffering in any material way. To be lawful, lethal injection must be a punishment that is not cruel, according to the 8th amendment to the US Constitution. The Supreme Court has wrongly permitted many lethal injections to go forward and claims that lethal injection is not an 8th amendment violation, regardless of physician involvement.