To the Editor: Lawrence Nelson and Brandon Ashby (“Rethinking the Ethics of Physician Participation in Lethal Injection Executions,” May-June 2011) correctly insist that physician participation in executions merits discussion on its own terms, separate from capital punishment itself, but their ensuing argument is fawed and pernicious.
They would entrust the integrity and ethics of the medical profession to the “considered judgment” of the legislature. “If the ethical arguments against physician participation are as obviously irrefutable as many proponents hold, then conscientious legislators ought to concur.” Ethicists since Aristotle have raised doubts about the judgment of legislators, so it is even more remarkable that Nelson and Ashby were writing from California, which the Supreme Court castigated last year for three decades of political stalemate regarding prison reform (Brown v. Plata).
Their argument rests upon their repeated assertion that “lethal injection executions involving physicians will continue.” They will? For how long, in which countries and which American states? Political punditry has its place, but not as the foundation of an argument that falls apart without it.
Finally, Nelson and Ashby fail to account for the compelling state interest to provide adequate medical care to its incarcerated, an imperative compromised by impediments to staff recruitment, as noted in Brown v. Plata. Tolerance of physician misconduct and incompetence is one such impediment. San Quentin's surgeon from 1913 to 1951 participated in 150 executions, sterilized over 600 inmates, and performed 10,000 “testicular implantations” (E. Blue, “The Strange Career of Leo Stanley,” Pacific Historical Review 78, no. 2 : 210-41). Exploitative experimentation in California continued into the 1970s. In order to protect the (free-world) public, state medical boards assigned miscreant physicians to prison practice at least until the late 1990s. Medical care in California prisons was sufficiently horrid to justify federal court receivership in 2006.
Good clinicians considering service to patients in prisons and jails rightfully expect their colleagues and leaders to make explicit commitments supporting ethical behavior and opposing misconduct. After several decades of reform efforts, a correctional medicine textbook could state, “Probably no ethical issue exists in the correctional health care on which there is greater unanimity than that of participation in executions” (B.J. Anno and S.S. Spencer in Clinical Practice in Correctional Medicine [Maryland Heights, Mo.: Mosby, 2009]). While serving as CEO of the California Prison Receivership, I made it clear that none of my clinicians—physician, nurse, or pharmacist—would participate in executions. In 2008 the medical director of Washington State's prison health care system resigned after losing a standoff with correctional offcials over his pharmacists’ participation in procuring lethal injection supplies. “Do not harm” carries serious weight in this community, regardless of our feelings about capital punishment per se.
Clinicians dedicated to serving patients in prisons and jails also expect support from their free-world colleagues. By its willingness to discipline physicians who violate a core tenet of the profession, the American Board of Anesthesiology has provided such support. The aims of a society's correctional system, which may be perfectly legitimate, frequently confict with the nonmaleficence and professional self-regulation of medicine. A society that undermines the latter does so at its peril.
Leaving the determination of involvement in lethal injections to individual physicians would create a de facto neutral position for physicians as a body. This is tantamount to endorsing participation, since there will always be a physician somewhere who will do the job.
To the Editor: Nelson and Ashby have mounted an argument favoring physician involvement in capital punishment. However, they base their case on three incorrect premises. First, they assert that lethal injection executions are inevitable. Second, they declare that a prisoner on death row is like a terminal patient. Third, they assume that capital punishment is permissible. They also overlook arguments that oppose physician involvement in execution based on the nature of the medical profession's social contract. Instead, they urge a policy change that would slant the field in their favor. To be fair to their position, I tried to imagine a stronger argument— and failed.
First, their assertion that execution is inevitable seems fawed. While it is true that executions occur within the United States, the country still debates the topic. Many believe we may yet join the great majority of other countries in the Western world that eschew capital punishment. Even as execution remains legal within the United States, individual cases have been reversed at the eleventh hour, often because miscarriage of due process is established. So executions are never inevitable.
Second, Nelson and Ashby assert that a convict on death row has equivalent status to a terminally ill patient. The nonequivalence of a death row convict and a terminally ill person is blatant. Humans cause (and can preempt) the end of life for the frst. But this attempted equivalence is interesting because it prompts the authors to consider informed consent. Realizing that consent is a necessary element in the physician-patient relationship, they argue that a death sentence voids the need for it. This argument fails. Their argument that the convict brought the situation on him or herself logically implies the acceptability of withholding compassion from convicts. But compassion is what the authors seem to seek. Further, in medicine, the only exception to informed consent requirements occurs when illness prevents the patient from exercising autonomy.
Third, Nelson and Ashby must assume executions are permissible to make their case. For ethicists to argue for permissive policy on a matter as morally laden as killing a person without a solid and widely acknowledged reason for its necessity is a major lapse in moral process. But the authors make or reference no defense of execution's permissibility or necessity and instead note that the case for capital punishment is not settled. Indeed, it is not. So it is odd that they advance an argument that assumes the debated case in its favor is conclusive enough to support permissive policy.
Part of the role of professionals is definitely to enter discourse with society over what should be done and by whom, as the authors note. The profession's dialogue with society may (and does) include the notion that if physicians should not participate, others should not engage in capital punishment, either. It is not clear why the authors felt that a call to deliberate would legitimately support any part of their case for legalizing physician involvement in execution. I think it does the opposite: it indicates that our nation's dialogue on execution is not over, and our current laws may indeed be wrong.
Nelson and Ashby seem to have an agenda that is belied by their tone. They describe physicians’ “talismanic invocation” of the Hippocratic Oath; they dismiss the reality that societies can embrace cultural norms that are morally wrong; and they scorn legitimate policy concerns, saying that physicians involved in executions “do not appear to be indiscriminate killers.” It seems that they may realize that legalized physician participation in executions would undermine the ability to credibly and effectively argue against it as a profession. Proffering a seemingly balanced position of individual choice, they actually attack—despite their assertion to the contrary—a fundamental element of professional role. This element is that, because the medical profession has a morally valanced role in society to care for those made vulnerable by illness using trustworthy practices, physicians’ social contract requires them to have standards of practice that are collectively determined. Reducing the legitimate venue for determining involvement in lethal injections to individual physician opinions would create a de facto neutral position for physicians as a body. This would become tantamount to endorsing physician participation in execution, since there will probably always be a physician somewhere who will do the job, creating the impression that the white coat sanitizes and legitimizes the procedure.
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Nelson and Ashby appear to agree, as I do, with the position that the way in which individual choice, discourse, and policy interact is critical. In addition to their call to physicians to engage in discourse in settings beyond professional societies and journals, I agree with increasing lay representation on professional committees. However, many professionals and lay people are unaware of the democratic process professional societies espouse. For instance, the adopted positions of the American Medical Association's Council on Ethical and Judicial Affairs go through an approval process at the House of Delegates that, using elections, does democratically represent virtually all specialty and state medical associations in the United States, which in turn have the membership among them of virtually all physicians in the country. The difference between opinion polls and positions adopted with democratic process is well known and not limited to physicians. If democratically determined positions of our representing bodies are wrong, that should motivate better engagement in, not subversion of, the process.
Even if capital punishment was accepted, Nelson and Ashby's case for physician involvement is weak. Medical professional ethics and professional training build on the fundamental fact that we care for those affected by illness and treat the illness and its manifestations. If a person on death row is ill, calling a physician to treat the illness or palliate its manifestation is quite different from calling a physician to participate in killing the convict. In keeping with this, physicians are not trained in how to administer lethal injection, or address a botched attempt. (Indeed, in much of medical practice, intravenous access is not provided by physicians but by technicians with relatively little but very specialized training and lots of daily experience.) The fact that execution coopted a technology used in the medical world for healing purposes is not justifcation to draw in physicians.
I think the argument Nelson and Ashby want to make is that compassion requires physicians to reduce the suffering of those being executed. If so, they need to reconsider their scorn for the Hippocratic Oath and the variety of related declarations that virtually all physicians willingly make that affirm the importance of avoiding harm—especially life-ending harm—and ask why this position is so time-tested. If their argument survives that step—which I doubt—they would then need to delve into the nature of harms in this case. They would need to identify the nature of the at-best incremental reduction in execution-induced suffering and weigh it against the suffering that placing the physician on the side of the executioner may cause the convict. If they manage that, they would then need to consider the societal downsides of promoting and encoding into law physician's involvement in the execution process, and of linking the medical system to or confating it with the judicial system that rendered the sentence. If their position survives all this, they will still not have dealt with the fact that the moral rectitude of capital punishment remains unestablished, and physicians’ training is for the sole purpose of caring for the ill.
Overall, it seems clear to me that logical and moral analysis reveals that Nelson and Ashby's position is at best miscarried. And, I would add, thankfully so. If I were a physician or a citizen in a society that found capital punishment obviously correct or left physician participation to individual choice, I for one would have to seriously engage in opposing it. There are so many other things that need to be done.
Linda L. emanuel
Feinberg School of Medicine Northwestern University
Regardless of one's views about the death penalty, doctors can help ensure that if an execution is going to be carried out, the individual does not suffer needlessly (and unconstitutionally).
To the Editor: As a lawyer and law professor who represents death row inmates, is opposed to the death penalty, and has written on the subject of physician participation in executions, I wholeheartedly concur with Nelson and Ashby's conclusion that professional medical associations should not seek to destroy the careers of doctors who use their medical expertise to prevent the horribly painful botched lethal injection executions we have seen in the past few years. In other contexts (abortion comes to mind), physicians’ own values are permitted to dictate whether they participate in controversial procedures about which there is no public consensus. They should be in this case, too.
During a lethal injection execution as it is administered in most states, anesthesia serves the same function as in a clinical setting—anesthetizing an individual prior to an otherwise excruciatingly painful procedure. If trained physicians do not perform or at least oversee the induction and maintenance of anesthesia, these tasks will be (and often are, to sometimes disastrous effect) performed by untrained prison employees. In almost every state, prisoners are paralyzed with a neuromuscular blocking agent after the anesthetic is administered and prior to administration of the fatal potassium chloride. This makes it diffcult for untrained lay executioners to determine whether the anesthesia has been successfully delivered and maintained throughout the execution.
In light of the critical role that doctors can—and do—play in ensuring that lethal injection executions are not torturous, Nelson and Ashby persuasively debunk the arguments that physician participation in executions will discredit the profession, lead to indiscriminate killing, or compromise the moral legitimacy of individual doctors. Nevertheless, the American Board of Anesthesiology has announced that it will revoke board certification from anesthesiologists who participate in executions, using the American Medical Association's broad definition of “participation” to evaluate individual cases.
The ABA's action is clearly intended to deter qualifed anesthesiologists from participating in executions, and it may have another effect that Nelson and Ashby do not mention: to deter qualifed doctors from serving as expert witnesses in the litigation over the constitutionality of states’ execution procedures. Expert testimony from anesthesiologists and other medical professionals has been instrumental is exposing the worst practices and most egregious incompetence in the administration of lethal injections nationwide. Physicians’ unwillingness to provide this expert testimony will remove from courts the ability to evaluate complicated scientific information, resulting in uninformed decisions and possibly inhumane—but judicially approved—executions.
It is bad enough that the ABA has taken a position that will likely result in correctional officers performing anesthesiology (something one would think would concern the ABA), but it is truly perverse to threaten the careers of doctors whose testimony seeks to expose the problems with administration of lethal injection executions.
Death row inmates are people who have been sentenced to death, not torture. Regardless of one's views about the death penalty, doctors can help ensure that if an execution is going to be carried out, the individual does not suffer needlessly (and unconstitutionally). Professional medical associations should respect the personal views of doctors who seek to perform that role.
University of California, Berkeley School of Law
Nelson and Ashby reply:
A few threshold matters: Linda Emanuel is quite wrong; we do not “favor” physician participation in executions (sanctions that do not impede or destroy the ability of physicians who voluntarily choose to participate are proper), nor are we in favor of the death penalty itself (for the purposes of our article, we are agnostic on this subject). She is also wrong to assert that we incorrectly “assume that capital punishment is permissible.” The second section of our article was devoted to establishing the logically inescapable conclusion that the ethical permissibility of capital punishment must be assumed if the issue of physician participation in it is to be reached. If it is unethical or a human rights abuse, then no one should participate, and our article is meaningless. We are baffed that our critics won't accept this point.
Both Terry Hill and Emanuel claim that we incorrectly assume lethal injection executions are “inevitable.” Our contention is quite different: such executions will continue for the foreseeable future regardless of whether physicians participate, and, as Ty Alper (a death penalty opponent) affirms, physicians can play a “critical role. .. in ensuring that lethal injection executions are not torturous.” (Neither Hill nor Emanuel contradict the evidence we provided of multiple botched executions.) Perhaps tomorrow Americans will rise as one and overturn the death penalty forever, but we doubt it (though we may very well welcome it). Given Baze v. Rees, lethal injection executions are a reality we have to deal with for at least a few more years. Hill and Emanuel also both assume that physicians in the death chamber harm prisoners and that they cannot possibly offer compassionate care. Of course, if capital punishment is per se unethical (a conclusion that both of them apparently embrace, but that is incompatible with the project of our article and all the others we cite addressing the substantive issue), then those who suffer this penalty are harmed and wronged. As for physicians having the ability to offer practical comfort to the condemned, the case made by Elie Weisel and others still stands.
Hill misunderstands our position on several matters. We do not “entrust the integrity and ethics of the medical profession” solely to legislatures. Following Ozar, we call for “an ongoing dialogue between [physicians] and the larger community” and argue that like military generals and bankers, the ethical norms structuring the conduct of physicians in the public sphere can't be left solely to their own determination because they affect too many other people. Hill also accuses us of failing “to account for the compelling state interest to provide adequate medical care to its incarcerated.” Although we never alluded to this subject and do not see how it relates to what happens in the death chamber, we strongly believe that all prisoners ought to receive constitutionally adequate medical care. We did not in our article—nor do we now—endorse the behavior of physicians who involuntarily sterilize prisoners or perform exploitative experiments upon them, but those activities are not similar to easing the dying of condemned persons.
Emanuel, too, misinterprets our views. We did not claim “that a convict on death row has equivalent status to a terminally ill patient.” Baum made that analogy. Yet it is true both that these convicts will die and that their dying can be better or worse. She declares that we believe a prisoner's responsibility for his crime “logically implies the acceptability of withholding compassion from convicts.” Responsibility for one's actions justifes the state's imposition of a fair punishment, not its harmful neglect. Our whole point is that physician participation can constitute a form of compassionate care.