Clinicians’ Involvement in Capital Punishment – Constitutional Implications

N Engl J Med 371;2 july 10, 2014

Nadia N. Sawicki, J.D., M.Bioethics

If capital punishment is constitutional, as it has long been held to be, then it “necessarily follows that there must be a means of carrying it out.”1 So the Supreme Court concluded in Baze v. Rees, a 2008 challenge to Kentucky’s lethal-injection protocol, in which the Court held that the means used by Kentucky did not violate the Eighth Amendment’s prohibition against cruel and unusual punishment. Lethal injection procedures have changed significantly since 2008, and that fact coupled with Oklahoma’s recent botched lethal injection of Clayton Lockett, the latest in a long series of gruesome and error- ridden executions, has raised questions about whether current methods would pass constitutional muster if reviewed by the Supreme Court. Unfortunately, they probably would.

This likelihood may surprise members of the medical and scientific communities who oppose involvement by their professions in implementing the death penalty. Lethal injection, the primary execution method used in all death-penalty states, was adopted precisely because its sanitized, quasi-clinical procedures were intended to ensure humane deaths consistent with the Eighth Amendment. But experiences like Clayton Lockett’s, which result from prisons’ experimentation with untested drugs and reliance on personnel with unverifiable expertise, demonstrate the dearth of safeguards for ensuring that this goal is actually achieved. Some drug companies now refuse to distribute drugs used for executions, pharmacies are reluctant to participate unless their identities are shielded, and organized medicine has taken a stand against physicians’ involvement in capital punishment. Nevertheless, states have demonstrated their willingness to continue with lethal injections, and most federal courts have allowed executions to proceed in the face of constitutional challenges. The time is therefore ripe for the medical and scientific communities to consider, once again, their role in this process. [Full Text]

Physicians, Medical Ethics, and Execution by Lethal Injection

JAMA. 2014;311(23):2375-2376. doi:10.1001/jama.2014.6425

Robert D. Truog, MD; I. Glenn Cohen, JD; Mark A. Rockoff, MD

In an opinion dissenting from a Supreme Court decision to deny review in a death penalty case, Supreme Court Justice Harry Blackmun famously wrote, “From this day forward, I no longer shall tinker with the machinery of death.” In the wake of the recent botched execution by lethal injection in Oklahoma, however, a group of eminent legal professionals known as the Death Penalty Committee of The Constitution Project has published a sweeping set of 39 recommendations that not only tinker with, but hope to fix, the multitude of problems that affect this method of capital punishment. [Full text]

Should doctors take part in executions?


 Michael Cook

It is unethical for American physicians to participate in executions, according to a commentary in the Journal of the American Medical Association. Robert D. Truog, a bioethicist, I. Glenn Cohen, a law professor, and Mark A. Rockoff, a doctor, all of Harvard University, assert forcefully that “Regardless of whether execution is justified … it must never be perceived as a medical procedure.” That is almost universally acknowledged around the world, and by all medical associations.

The Harvard academics were responding to a study by the Death Penalty Committee of The Constitution Project, a group of eminent lawyers who oppose capital punishment. Recommendation 39 was that doctors should be involved in those executions which do happen in order to ensure that they are humane as possible – even if medical associations object. This is impossible, the three authors contend. Participation is a violation of the principles of medical ethics. Expecting that some doctors will participate is cynical and shows a “profound disregard” for the integrity of the medical profession. “Medical professionals cannot permit state law and regulation to subvert an ethical commitment that has uniform support across virtually the entire profession around the world.”

Of course, this begs the question of physician involvement in assisted suicide. But the authors appear to look upon this as an altogether different question. They imply that an execution is an “involuntary” taking of life, while assisted suicide is a voluntary taking of life. Dr Truog distinguished between the two in a 2011 article in the Hastings Center Report: “the critical ethical distinction between physician-assisted suicide and capital punishment, which is that the former is focused upon patient-centered goals, whereas the latter serves the goals of the state”. He thought that a doctor might participate as a citizen in a firing squad, but he could not administer a lethal injection as a doctor.

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New execution protocol similar to doctor-assisted suicide recommended

New York Post

Lindsey Bever

Days after the botched execution of Oklahoma inmate Clayton Lockett, a bipartisan committee studying the death penalty has recommended a new one-drug lethal injection method to kill quickly and “minimize the risk of pain or suffering.”

The committee, formed by the Constitution Project long before the Lockett execution, urged states to administer an overdose of one anesthetic or barbiturate to cause death – the same method used in doctor-assisted suicides. (To read the report, click here.)

This method would replace a three-drug lethal injection protocol currently used by most states that employ the death penalty. . . [Full text]