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Background

The United States is one of the few democracies that continues to impose and carry out the death penalty. In addition to the federal government and the U.S. military, 36 states have death penalty statutes. Methods of execution include lethal injection, electrocution, the gas chamber, hanging, and the firing squad. Twenty-five states have designated lethal injection as either the mandatory or an optional method of execution; the United States is the only country in the world currently using this method. Electrocution remains in practice in 12 states, while the gas chamber is used in five states. Hangings can still be carried out in three states, and firing squads can be used in two states. [See TABLE 1 and maps of Methods of Execution: by State.] An examination of the history of the death penalty in the United States reveals that the relatively wide array of execution methods can be explained in part by constant efforts to find more "humane" avenues of execution.


EXECUTION METHODS

Influenced by English common law tradition, American colonies inflicted the death penalty on criminals by various methods, including being pressed to death, drawn and quartered, and burned at the stake.2 After the ratification of the Eighth Amendment's ban on "cruel and unusual punishment" in 1789, hanging was considered the only constitutionally permissible method of execution for most of the next century. The one exception to this rule was the use of a firing squad in Utah, which was upheld by the Supreme Court in 1878.

In New York State botched public hangings in the mid-19th century provided the impetus for a more humane method of execution.3 A state commission, chaired by a dentist, was formed to investigate alternative methods of executions. The advent of electricity in the late 1880's introduced a new method of execution to the legal system. Thomas Edison himself testified that death byelectrocution would be instantaneous.4 After the commission recommended electrocution as the most humane method of execution, New York State approved the construction of an electric chair in 1888. In 1890, William Kemmler became the first prisoner to die in the electric chair. An eyewitness account described how 1400 volts for 17 seconds was insufficient, and how Kemmler began to recover a minute later. There was a delay of two minutes before a further shock lasting two and a half minutes was administered. Smoke rose from the burnt corpse.5 An autopsy report showed that Kemmler's flesh had been severely burned at the points of contact with the electrodes.6

The electric chair was used to execute 695 men and women in New York over the next 75 years. Despite ongoing doubts about its efficiency and painlessness, electrocution quickly became the predominant method of execution in the country, with more than half of death penalty states using it by the end of the 1920's.

In 1921, Nevada became the first state to approve the use of lethal gas in executions. Discontent with the mixed results of electrocution, the legislature approved release of lethal gas into a condemned prisoner's cell, while he or she was asleep. Gassing was never used as originally envisioned: for practical purposes, it could not be carried out in prisoners' cells; a special chamber had to be built. In 1924 in Nevada, Gee Jon became the first person to be executed in a gas chamber. Seven other states adopted the gas chamber by the end of the 1930's. By 1960, three more states had chosen the gas chamber as the preferred method of execution.

A Supreme Court decision in 1972 extended a de facto moratorium in executions that began in 1967. The decision forced states to review and revise their capital punishment laws. At that point, a total of 5,500 people had been executed since the beginning of the century. In Furman v. Georgia, the Court invalidated the Georgia system because "the Eighth and Fourteenth Amendment cannot tolerate the infliction of a sentence of death under legal systems so wantonly and freakishly imposed."7 Within the majority opinion, three justices affirmed the constitutionality of the death penalty, while two others came to the conclusion thatits imposition under any circumstances would violate the "cruel and unusual punishment" clause of the Eighth Amendment.

The death penalty was reinstated in 1976, in a series of Supreme Court decisions.8 These cases upheld the constitutionality of the death penalty in states that considered mitigating circumstances at the sentencing stage. The following year, Gary Gilmore was executed by firing squad in Utah. Public outcry over the use of a firing squad generated support for a new method of execution: lethal injection. In 1977, Oklahoma became the first state to approve use of lethal injection, with three other states quickly following suit. The first execution by lethal injection, that of Charles Brooks, took place in Texas in 1982.

PHYSICIAN INVOLVEMENT IN EXECUTIONS

Although lethal injection has brought renewed attention to the issue of medical participation in executions, doctors have played a role in carrying out the death penalty for many years. For example, during the French Revolution, Dr. Joseph Guillotin successfully promoted a head cutting device for executions, in the belief that the method was less painful than others being used. However, Dr. Guillotin was said to be scandalized by the name given the machine and the uses to which it was put.9 The device was later perfected by a French surgeon, Dr. Antoine Louis, who redesigned the blade to make a cleaner cut.10 In the United States, two physicians, Dr. Carlos MacDonald and Dr. E.C. Spitzka, supervised the first execution by the electric chair. Their advice was crucial to the execution. In his autobiography, Dr. MacDonald wrote: "Before Kemmler was brought into the room, the warden asked the physicians how long the contact should be maintained. [I] replied, <Twenty seconds...'"11 According to news reports, Dr. Spitzka ordered the electric current to be turned off prematurely, after 17 seconds. When hediscovered that Kemmler was still alive, Dr. Spitzka shouted, "Turn on the current instantly. This man is not dead."12

In 1980, a year before the first scheduled execution by lethal injection (of Thomas Hayes in Oklahoma), the American Medical Association (AMA) passed a resolution against physician participation in executions. The resolution did not clearly define the actions that constitute "participation". Hayes' execution never took place, because his sentence was commuted. But in 1982, physicians played a prominent role in the first execution by lethal injection, that of Charles Brooks. News reports indicate that Dr. Ralph Gray, Medical Director of the Texas Department of Corrections, examined Mr. Brooks "to make certain his veins would accept lethal doses of drugs."13 Describing the execution itself, the London Guardian reported: "After five minutes...Dr. Ralph Gray listened to his heart through a stethoscope, shook his head, and commented 'A couple more minutes'. Dr. Bascom Bentley, also checking the prisoner, flashed a torch into his eyes and asked the executioner: 'Is the injection completed?' He was told it was not. Two minutes later, after a further stethoscopic examination Dr. Gray said: 'I pronounce this man dead'." Since that time, other physicians have participated in lethal injections, as well as in executions by other methods. In 1990, three physicians administered the first lethal injection execution in Illinois to Charles Walker. A judicial grant of anonymity kept their names confidential. In Arkansas in 1992, the execution of Ricky Ray Rector was delayed for 45 minutes as the medical team attempted to find the vein in which to insert the catheter. At the time they were successful, the team was already preparing to surgically insert the intravenous tube.14

Physicians remain involved in other methods of executions as well. In Washington, Westley Allan Dodd was executed by hanging in January 1993. Dr. Donald Reay, county medical examiner, examined Dodd to determine his heightand weight, and helped calculate how far Dodd would have to fall to die instantly.15 He predicted that death would be caused by the classic "hangman's fracture" of the neck; however, on autopsy, Dr. Reay found that Dodd had died of a combination of neck damage and strangulation.16

The law and medical ethics have begun to clash visibly around the issue of physician participation in executions. In 1991, Illinois passed a bill requiring the presence of at least two physicians in lethal injection executions and requiring that they pronounce death. The law shields the identity of the physicians by guaranteeing them anonymity, going so far as to stipulate that they can be paid in cash for their services. The bill was strongly opposed by the Chicago Medical Society, the Illinois State Medical Society, the AMA, the American College of Physicians (ACP), the American Public Health Association (APHA), the American Association for the Advancement of Science, the Institute of Medicine, and Physicians for Human Rights (PHR). Following this professional outcry, in 1992 Illinois amended the law to remove the mandated witnessing role for physicians, but kept intact the provisions about pronouncing death and anonymity.

The debate reached the federal level in 1992 when the U.S. Justice Department proposed new rules for federal executions. The last federal execution was conducted in 1963. Existing regulations require that the execution take place according to the criminal code of the state in which the federal prison is located. The new rules proposed use of lethal injections, and mandated that at least one physician attend the execution and pronounce death.17 Once again, medical professionals vigorously opposed the rule. The AMA, ACP, the American Nurses Association, the APHA, the Society for Correctional Physicians, and the National Commission on Correctional Health Care all submitted written comments on the proposal. As a result, in early 1993 the Justice Department eliminated the requirement that a physician be present and that physicians be required to pronounce death. However, the Justice Department did not prohibit physician participation in executions. As then Attorney General William Barr stated in the Federal Register, "Because the department may conclude that a physician's presence is necessary to a responsible execution, physician participation will notbe barred. However, [the regulation] has been revised to make clear that medical professionals may decline to participate in executions on the basis of national ethics."18



2 Bedau H. The Death Penalty in America. New York: Oxford University Press, 1982.

3 Jones GR. Judicial electrocution and the prison doctor. Lancet 1990;713-714.

4 Beichmann A. The first electrocution. Commentary 1963; 35:410-419.

5 Jones GR. Judicial electrocution and the prison doctor. Lancet 1990;713-714.

6 Beichmann A. The first electrocution. Commentary 1963; 35:410-419.

7 Furman v. Georgia, 408 U.S. 238 (1972), Justice White, concurring.

8 Gregg v. Georgia, 428 U.S. 153; Proffitt v. Florida, 428 U.S. 242; Jurek v. Texas, 428 U.S. 262.

9 Donegan CF. Dr. Guillotin - reformer and humanitarian. Journal of the Royal Society of Medicine 1990;83:637-639.

10 Ibid.

11 Trombley S. The Execution Protocol, Crown Books: New York, 1992.

12 Beichmann A. The first electrocution. Commentary 1963; 35:410-419.

13 Reuters News Agency, December 9, 1992.

14 British Medical Association. Medicine Betrayed: The Participation of Doctors in Human Rights Abuses (London: Zed Books, 1992) p. 129.

15 New York Times, January 8, 1993.

16 Ibid.

17 Department of Justice. Implementation of death sentences in federal cases. Federal Register 1992; 57(230):56536.

18 Department of Justice. Implementation of death sentences in federal cases. Federal Register 1993; 58(11):4690.

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