Execution by lethal injection has shone a harsh light on the complicity of health professionals – physicians, nurses and paramedics – in carrying out capital punishment. In a 2001 survey in the prestigious journal, Archives of Internal Medicine, an astonishing 41 percent of physicians surveyed said that they would assist or even carry out an execution by lethal injection and there is little evidence that the percentage has changed significantly since then. Deborah W. Denno JD, PhD, a leading scholar of death penalty litigation at the Fordham University School of Law in New York City, remarked that physician participation in executions is more prevalent than one might think, although exact numbers are not available because of the secrecy surrounding executions. And this does not even include the nurses and paramedics (also known as Emergency Medical Technicians or EMTs) who head up the execution teams in many states. Interestingly, the leadership of several major organizations have taken a more enlightened view on executions than many of their members.
Execution medicine is not a new specialty. Two centuries ago, physicians helped to design the guillotine, which remains an iconic symbol of the French Revolution. In the United States, hanging was the punishment of choice until 1890, when New York State carried out the first execution with the electric chair – invented by a physician, touted for its humaneness by an oral surgeon and carried out secretly by Thomas Alva Edison.
Throughout most of the 20th century, the electric chair remained the favored means of execution in the United States, though the gas chamber, the firing squad and the gallows all had their partisans. Today, it seems virtually certain that all these means for taking life will pass into history. Of the 35 states that allow capital punishment, all do so by lethal injection. For this, we have to thank the former medical examiner of Oklahoma and part-time pharmacologist, A. Jay Carson, MD, who compounded a three-drug cocktail that has, until recent years, been promoted as a more humane way of dispensing justice than bullets, gas, rope or electricity. Dr. Carson’s cocktail consists of sodium thiopental, an ultra-short-acting barbiturate anesthetic, pancuronium bromide, an agent that paralyzes the skeletal muscles (including those of breathing and speech) and potassium chloride, which stops the heart in high doses. Though conceived in Oklahoma, it was Texas that carried out the first lethal injection execution in 1982. In subsequent years, lethal injection progressively supplanted all other means of execution.
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Even in the heyday of the electric chair, physicians played a pivotal role in the death chamber. Though the executioner was an electrician, it was the physician’s job to “pronounce” the prisoner dead – and, if a heartbeat was detected, to signal the executioner that another jolt or two was required. Clearly the physician’s role was not exactly congruent with the fundamental credo of medicine, “Do No Harm.” And with the growing popularity of lethal injections since the 1980s, physicians, nurses and paramedics play a significantly more important role in executions because of the greater medical demands of the procedure.
Killing by lethal injection involves the insertion of two long tubes (catheters) into the veins of the condemned person, one for the drugs and the other for “backup.” The catheters snake through a hole in the wall of the execution chamber, where the prisoner is strapped down to a gurney, into an adjacent room where the drug dispenser hangs. All this is done behind a closed curtain to conceal the identity of the executioners. With the catheters in place, the curtain is parted and the drugs are administered. First goes thiopental, hopefully in a sufficiently hefty dose to ensure deep sleep. Next comes the muscle-paralytic agent, pancuronium, and finally the coup de grace: potassium chloride. Throughout all this, the electrocardiogram is monitored and when the EKG is flat, the execution is deemed a success.
In the view of those who believe in such a thing as a humane execution, the Carson cocktail seems just the ticket because – theoretically at least – thiopental ought to render the condemned deeply asleep before the other two drugs kick in. There are, however, several ways that a lethal injection execution can be botched. Veins can be hard to find, especially in the obese or in drug addicts, who have destroyed their superficial veins from years of shooting up. Many hospitals and clinics use specially trained technicians, called hemophylists, to draw blood and insert catheters – and not surprisingly, some states have started to use hemophylists on death row, because the failure to properly insert a catheter into a vein may be the major reason for botched executions: instead of entering the circulatory system, the drugs just spread through the surrounding tissue. Inadequate doses of thiopental are the second error, with the result that the condemned is not asleep when the other two drugs hit home. Pancuronium will make the condemned feel as if he or she is suffocating – as he or she indeed is – but the witnesses to the execution haven’t a clue what’s really happening because the person on the gurney can’t even cry out. The victim’s agony is even worse with the injection of potassium chloride, which causes excruciating burning pain until it finally stops the heart.
Two years before the first lethal injection, the American Medical Association (AMA) issued a policy statement that it is a breach of medical ethics for a physician to participate in an execution. The AMA does not take a position on capital punishment per se – only the participation of physicians in the mayhem. Nor did the AMA prescribe sanctions for physicians who violate their oath. The American Nurses Association and the National Association of Emergency Medical Technicians have also taken the moral high ground, but have yet to punish a member for choosing the low road. The latest and most emphatic stance comes from the American Board of Anesthesiology.
With mounting evidence of botched executions and invigorated court challenges to lethal injections, some states have been going out of their way to procure the services of anesthesiologists, who, as experts in putting people to sleep, are uniquely qualified to put people to sleep permanently. This did not sit well with the American Board of Anesthesiology (ABA), which issued a statement in 2010 that “patients should never confuse the practice of anesthesiology with the injection of drugs to cause death.” The ABA went on to warn its members, called diplomates, that “anesthesiologists may not participate in capital punishment if they wish to be certified by the ABA.” This ruling spells the kiss of death for an anesthesiologist who gets caught moonlighting in the execution chamber or, indeed, helping out in any manner, because few hospitals would open their operating rooms to an anesthesiologist who has been stripped of his or her board certification.
So far, there are no hard data to tell whether the ABA’s position is gaining traction; such clues as exist come from anonymous anesthesiologists quoted on various Internet web sites, where one reads that the ABA policy will have a “chilling effect” or, “It sure will deter me.” However, since the states go to great lengths to conceal the identity of their execution teams, the ABA may not have an opportunity to implement its policy. Then, too, the states can just recruit the services of other physicians, nurses or paramedics.
A state-by-state review by Amnesty International three years ago found that most death-penalty states either “allow” or “require” physicians to participate in executions, but their specific duties are not spelled out. These duties may be buried in regulations – addenda to the laws themselves – and Professor Denno notes that it could take years to get these data via the Freedom of Information Act. What we can say is that the duties range from consulting to carrying out the execution.
If a health professional were expelled by his/her licensing board, he might well seek redress in court and it is far from certain that this would have a welcome result for opponents of the death penalty. Appeals courts have generally upheld the death penalty and it would certainly be naive to expect the Roberts’ court to overturn the death penalty. Already there are ominous indications from lower courts, both state and Federal. In 2007, the North Carolina Medical Board decided to revoke the licenses of physicians who participate in executions, thereby making it impossible for them to practice medicine. Two years later, this policy was overturned by the State Supreme Court. What is more, death penalty states are passing “shield” laws to shroud the identity of executioners in secrecy and to protect health professionals from disciplinary action by their licensing boards.
It is not exactly surprising that medical ethics clash with the belief systems of prosecutors and hanging judges. But sometimes it seems as though proponents of the Hippocratic Oath are on a collision course with attorneys for death row inmates. Desperate for a hook on which to build an appeal and, if not to save a life, then at least to make the death less painful, these lawyers have been attacking the poor training of execution teams in a number of states, which use prison staff rather than health professionals to carry out the executions. And the strategy, at least, is buying time for their clients. According to Richard C. Dieter JD, executive director at the Death Penalty Information Center in Washington, DC: “The latest challenges to lethal injection have already held up more executions and for a longer time, than appeals involving such broad issues as race, innocence and mental competency.” It remains to be seen how much time this strategy will buy; it will vary from state to state and, with the passage of time, anything can happen, such as a change in the state’s law, as recently happened in New Mexico. However, Dieter does not think that “cruelty” issues will bury the death penalty. Reflecting on the generally steady downward trend in executions since the 1990s, Dieter speculates that, eventually, executions may become so infrequent as to become “arbitrary,” and therefore “unusual,” in the language of the Eighth Amendment.
Ideally, health professionals and death row lawyers will find a way to work together, with one group declining to be complicit in executions and the other pressing for more medically accomplished executions, thereby catching the criminal justice system in a whipsaw effect. That is admittedly a long shot, for just as law schools will continue to churn out prosecutors and judges who “believe” in the death penalty, so the research of Professor Denno and others show that there is no shortage of health professionals prepared to take their place beside the death gurney.
In the meantime, the ethical compass of health professionals with respect to capital punishment was unambiguously articulated by Marlene Martin, a board member of the nationwide Campaign to End the Death Penalty and a registered nurse, who said, “The ABA’s tough-minded decision is a welcome new development that merits the support of all opponents of the death penalty. The medical community needs to draw the line and stay on the side of healing, not of killing. All of us in the medical community should refuse to play any role in the execution process, from finding a vein to injecting a lethal dose of drugs.”