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Results of the Study: Physician Participation - In Law, Regulation and Practice

The relevant statutes of the thirty-six states with the death penalty mention the presence of a physician in all but two cases. Some statutes appear to be in direct conflict with AMA ethical standards, based on the newly adopted report. Twenty-three states require that a physician "determine" or "pronounce" death. Twenty-eight state statutes or regulations require that a physician "shall" or "must" be present at the execution. Other statutes simply list a physician among the witnesses. The language of the statutes is sometimes vague, and curiously awkward. In several states the warden or superintendent "shall invite" a physician to attend. In Utah the director "shall cause a physician to attend" the execution.

The language in statutes about lethal injection clearly expresses a desire to set it apart from other medical procedures. Currently, twenty-five states use lethal injection (fourteen as the sole method and eleven as an option). Eleven of these statutes declare outright that lethal injection is not a medical procedure. Seven also authorize pharmacists to dispense lethal drugs to the Commissioner (or designee) without a prescription.

Within each state, the department of corrections usually designs its own set of regulations, often detailed, for conducting executions. They translate the usually vague language of the statute into specific assignments for physicians involved in executions. Unlike state laws, which are always matters of public record, these regulations are frequently difficult to obtain. In a few states, the documents are confidential under state law.

For the purposes of this report, we were able to obtain regulations directly from the departments of corrections in response to a written request from Human Rights Watch, or indirectly in the course of further research. In a few states, particularly those that have not conducted executions since 1976, departmental regulations regarding the process of execution do not exist. In the Appendix, we provide a state-by-state overview of the information available.

We found that nondescript statutes "inviting" a physician to an execution can translate into specific procedures directing physician involvement in executions. In Arizona, where the method of execution is either the gas chamber or lethal injection, the law states that the superintendent "shall invite" the presence of a physician. The regulations specify that the Chief of Health Services shall "arrange for a physician to be present during the execution of a condemned inmateto operate the heart monitor."27 Similarly, in California (which uses the gas chamber or lethal injection) the law indicates only that two physicians must be invited. But San Quentin regulations stipulate that on the day of execution, the Chief Medical Officer will "attend with another staff physician, and by monitoring the heart of the inmate, or by whatever means appropriate, determine or pronounce death."28 The regulations go on to delineate that one of the attending physicians must direct the fitting of a heart monitor to the condemned inmate approximately 15 minutes before execution, and that the heart monitor must be activated five minutes before the execution. The physician must also advise the warden that the prisoner has died.

In Oklahoma, a lethal injection state, the law indicates that the presence of a physician must be "invited". But Oklahoma Department of Corrections procedures stipulate that the physician must inspect the catheter and monitoring equipment and determine that the fluid will flow into the inmate's vein.29 The procedures also specify that the Department of Corrections' Medical Director must order a sufficient quantity of the substances used in the execution.

Oregon law, which mandates lethal injections, also states that a physician's presence must be invited. But departmental procedures specify that the physician "will be responsible for observing the execution process and examining the condemned after the lethal substance(s) has been administered to ensure that death is induced."30 Oregon regulations also stipulate that a "medically trained individual" administer the lethal injection. This has implications for other health professionals, many of whom are also bound by ethical codes that prohibit participation in executions. The Oregon regulations state: "A medically trained individual as designated by the health services manager will insert a catheter into an appropriate veinand cause an infusion of normal saline...The medically trained individual...will by syringe first introduce a lethal barbiturate, then open the drip regulator...then introduce the chemical paralytic agents into the inmate. The intravenous administration of the chemicals will be maintained until death is pronounced by the licensed physician(s)." In Florida, where the method of execution is electrocution, the law stipulates that a physician shall be present to announce "when death has been inflicted." However, Florida prison regulations specify that a physician and physician's assistant are to be among the five people in the execution chamber immediately prior to and throughout the execution.31 The regulations also state that the Chief Medical Officer of the prison is responsible for procuring two physicians and a medical technician for the execution. Two minutes after the electrical current ceases, one of the physicians must examine the body for vital signs and pronounce the inmate dead.

In North Carolina, where lethal injections and gas chamber executions are allowed, the law states that a surgeon or physician from a penitentiary must be one of the witnesses. The Department of Corrections' Research File provides further details: "When lethal injection is used, the inmate is secured with lined ankle and wrist restraints to a gurney in the preparation room outside the chamber. Two saline intravenous lines are started, one in each arm...appropriately trained personnel then enter behind the curtain and connect the cardiac monitor leads, the injection devices and the stethoscope to the appropriate leads...thiopental sodium is injected which puts the inmate into a deep sleep. A second chemical agent, procuronium bromide, follows. This agent is a total muscle relaxer. The inmate stops breathing and dies soon afterward. A physician, whose sole function is to pronounce the inmate dead, watches from thecontrol room. After five to ten minutes, he goes to the inmate, listens for heart sounds, and pronounces him dead."32 When the gas chamber is used in North Carolina, the regulations specify that the inmate be fitted with a heart monitor, which can be read by a physician and a staff member in the control room. After the physician pronounces the inmate dead, ammonia is pumped into the execution chamber to neutralize the gas.

New Jersey law states that two licensed physicians are "authorized to be present" at executions, which are accomplished by lethal injection. The Administrative Code specifies who these physicians should be, and what they should do.33 The Medical Director of the Department of Corrections must be one of the physicians, while the other is selected from a list of volunteers from other correctional institutions. In the event that no volunteers are available, the Department must contract with physicians in the community. The code stipulates that the execution chamber be equipped with a cardiac monitor, which "shall be positioned to provide visual access to the team physicians." During the execution, the physicians view the condemned and the cardiac monitor, and upon completion of the procedures, "examine the deceased and confirm death." The New Jersey Code refers to the lethal chemicals as "execution medications".

As these examples illustrate, the regulations are much more specific than the statutes in describing the role of physicians in executions. Often when the statutes indicate that the physicians' presence is tentative, the regulations leave no doubt about their part in the process.

What Really Happens

But even regulations cannot reliably describe the events as they occur. To understand the full extent of physician involvement in executions, we conducted interviews with witnesses to recent executions. These anecdotes and other published statements indicate that current execution procedures require physicians to violate professional ethical standards. They also document the inherent problems in continuing attempts to define a "bright line" standard for the actions that constitute "participation".

As discussed in Chapter 3, the AMA guidelines clearly state that determining death, as opposed to certifying death, constitutes physician participation in execution. Determining death includes monitoring the condemned person and determining the point at which death occurs. Our research indicates that in practice, this guideline is often ignored. Mississippi According to a former warden, prison staff medical technicians attach two EKG monitors and two stethoscopes to the prisoner's chest in an isolation cell a few paces from the gas chamber. The medical technicians leave. After the inmate is brought to the gas chamber, the EKG and stethoscopes are monitored by two physicians, who sit behind the chamber out of view of the official witnesses. The physicians are local doctors who volunteer for the task and are not paid. They are not identified to the witnesses, and wear civilian clothes. Once the cyanide pellets are dropped, the doctors monitor the EKG and advise the warden when the prisoner has expired. The body is then examined by the County Coroner (not a physician) who has witnessed the execution. The doctor shows him the EKG, and the Coroner certifies death.34 Virginia According to a criminologist who witnessed three executions, a physician (employed by the Department of Corrections) awaits completion of the execution in a small conference room directly off the execution chamber. After the electric chair is turned off, there is a three minute "cooling period". The doctor enters the chamber and places a stethoscope to the inmate's chest. The doctor pronounces that the inmate has expired.35

In the 1993 execution of Charles Stamper, a witness reported that the prison doctor wore a white lab coat as he put a stethoscope to Mr. Stamper's chest. Finding no heartbeat, the doctor said to the warden,"This man has expired."36

The AMA report anticipates the problem with the use of a physician to determine death. Inevitably, there will be instances where the physician finds that death has not occurred. In these cases, the physician must then signal to the executioner that the procedure must continue or recommence. Alabama In 1989, the execution of Horace Franklin Dunkins did not go as planned. One of the two doctors present recalled the procedure: "I was in the witness room adjacent to the execution chamber. I saw Dunkins in the electric chair and heard the generator start. At this time I did not see a strong contraction of Dunkins' muscles as had occurred at the two executions I had previously witnessed...

After a short period of time, the other doctor... and I were called into the execution chamber. I could see that Dunkins was breathing. I was first into the chamber. Respirations were present and appeared normal. His muscles were clenched and his eyes were closed. I checked his peripheral pulse, in his wrist, and it was normal. I listened to his heart and his heartbeat was strong with little irregularity...(the other doctor) checked Dunkins' level of consciousness with medically accepted tests for reaction to pain, a sternum rub and nipple pinch. Dunkins had no reaction to these tests.

I told an official that Dunkins was not dead. Dr. _____ and I then returned to the witness room. The blinds were closed but shortly thereafter opened again. I again heard the generator begin. This time, Dunkins' muscles contracted... Dr. ______ and I re-entered the chamber a few minutes later... Dunkins was not breathing. I examined him first and he had a weak heartbeat which rapidly diminished to no heartbeat. Dr. ______ and I each examined Dunkins twice on this second occasion. We agreed and reported that Dunkins was dead."37

Georgia In 1984, electric current failed to kill Alpha Otis Stephens in the allotted time. As officials waited the required eight minutes for the body to cool before the body could be examined, witnesses watched as Stephens struggled to breathe, taking as many as 23 breaths. Two physicians examined him and reported that he was still alive. A second charge was administered, after which the two physicians re-examined Stephens and pronounced him dead.38 Indiana The 1985 execution of William E. Vandiver also required multiple jolts. Dr. Rodger Saylors of Michigan City examined the body and found that Vandiver was still alive. The current was applied three more times before Vandiver was pronounced dead.39

Other specific activities mentioned by the AMA that constitute unethical behavior by physicians include supervising or overseeing the preparation or administration of the execution process, and attending or observing the execution as a physician. Mississippi Two local physicians were called in to assist in three executions at Parchman Prison. In addition to monitoring heart activity during the executions, the doctors attended preparatory briefings with the execution team. One subject covered at the briefing was the procedure in the event of a malfunction of the gas chamber. In such a case, the execution team would look for a mechanical problem. The chamber would be cleared of gas, and the inmate removed to a holding cell. If the inmate was unconscious, one of the doctors was to remain with him until the chamber could be repaired. According to the procedure, the doctors would make a "medical judgment" as to whether to attempt to revive the prisoner.

The warden expressed relief that the problem did not occur in the three executions over which he presided.40

Lethal injection poses the most direct challenge to keeping physicians uninvolved in executions. The AMA guidelines recognize this and specify that selecting injection sites, starting intravenous lines, prescribing, preparing or administering injection drugs, and consulting with lethal injection personnel constitute physician participation in executions and are unethical. Nevada The Medical Director of the Nevada State Prison examines the prisoner during the week of the execution, to determine venous access. The Medical Director prescribes the three drugs used in the execution, which are obtained from a local hospital by the Department of Corrections pharmacist. The pharmacist mixes and prepares the solution.41

The AMA Council report finds that some activities conducted by doctors do not constitute participation in executions. Yet our research indicates that in practice, even these activities raise questions in some circumstances. For example, the Council indicates that it is ethical for a physician to provide medical care to a condemned person if the individual gives informed consent, if the medical care is used to heal, comfort, or preserve the life of the condemned individual, and if the care does not facilitate the execution. South Carolina In 1991, Donald Gaskins attempted suicide about sixteen hours before his scheduled execution. Gaskins used a razor blade to slit his wrists and elbows. He passed out from loss of blood, and was found unconscious about an hour later. A physician was called in to treat Mr. Gaskins, and he stitched the inmates's wounds tightly, restricting movement of the arms. Gaskins remained unconscious, strapped down on a gurney in the cell. The doctor was in and out, periodically checking on his condition. He wrote extensive notes that he would not show to Gaskins' attorney.

One other doctor, a psychiatrist, was called in. They performed several exams for unconsciousness, the results of which are unknown. Just before the execution, Mr. Gaskins regained consciousness. He was escorted to the electric chair and executed.42

The issue of physician participation in executions poses special conflicts for physicians who work in correctional facilities. It dramatically highlights the tension that exists between correctional administrators and physicians who work in their institutions. Administrators may expect physicians to use medical skills to meet institutional needs, even for purposes other than the provision of health care. There are limited standards to guide physicians' responsibilities to an institution's wards (their patients) or to the employer institution. The lack of clarity about physicians' obligations causes inevitable conflicts between administrators and physicians.

It should be noted that the National Commission on Correctional Health Care (NCCHC) has standards for the accreditation of correctional health systems in the U.S. NCCHC standards prohibit the participation of correctional health professionals in all forms of punishment, which includes executions.43 Unfortunately, accreditation is voluntary, and less than 15% of all state prison systems have gone through the NCCHC accreditation process.

Since many execution procedures call for medical skills, such as monitoring vital signs, cannulating veins and administering drugs, it is not hard to understand why administrators turn to institution-employed physicians for assistance. As we have seen, some states require physicians who are employees of the Department of Corrections to participate in executions, in violation of professional ethical codes. What happens to these physicians when, on ethical grounds, they refuse to participate? We conducted interviews with prison physicians to find out.

Although no cases are known in which physicians have been fired for not participating, some have suffered consequences for their refusal. The following examples illustrate the subtle and overt ramifications for physicians who refuse to assist in the execution process.

When Oklahoma became the first state to legislate lethal injection as its method of execution, Armond Start, M.D., the corrections medical director, used his position to speak out against physician involvement and warned the profession about the need for standards. A few years later, he moved to Texas, where a new director of corrections made changes that threatened the autonomy of healthservices. Dr. Start left his position. Physician participation in executions was an area of contention.

In Illinois, Ron Shansky, M.D., medical director, obtained verbal agreement from the corrections director that he would not be asked to participate in executions. Subsequently, it was written into Dr. Shansky's employment contract. During the period of this contract, Illinois prepared to execute a man by lethal injection. The Illinois Attorney General's office insisted that physicians be involved in the execution procedures, because of challenges to the procedures as a violation of the Eighth Amendment prohibition against cruel and unusual punishment. The Attorney General argued that the challenge was strengthened if medical tasks were delegated to people without medical training or skills. Dr. Shansky was consulted about the drugs and lethal doses, but refused to answer the questions. At the time, his position was protected by his employment contract.

After the execution, a new director of corrections was appointed and insisted upon meeting with Dr. Shansky before renewing his annual contract. The director questioned the significance of the clause prohibiting participation in executions and required its removal from the contract. He claimed he would honor a verbal agreement to exempt Dr. Shansky from participating. However, the action represented an attitude that correctional health professionals function only to serve the institution. The medical director saw his autonomy erode and subsequently left his position.

In California, where the death penalty can be implemented by either the gas chamber or lethal injection, regulations call for two physicians in attendance at executions. Department of Corrections officials tacitly expect their employed physicians to be involved, especially those in administrative positions such as chief medical officers. Kim Thorburn, M.D., sought a position as staff physician at San Quentin, the institution with the gas chamber. She informed the chief medical officer that, if hired, she would be unwilling to participate in an execution. The chief medical officer agreed to this condition.

In 1982, Dr. Thorburn was censured by the prison administration for speaking publicly as a prison physician against the nation's first lethal injection execution. Following this experience and after much discussion, the California Medical Association (CMA) passed a resolution to seek legislation that would protect state-employed physicians from sanctions for refusing to participate in executions. Despite support from the CMA, the state's corrections department successfully lobbied for defeat of the bill, and maintained its ability to force state-employed physicians to participate in executions.

After a few years, Dr. Thorburn applied to be chief medical officer at San Quentin. The interview with the warden focussed on the need for physicianparticipation in executions, and the warden stated that the medical officer would be expected to support the staff who carried out the execution. Dr. Thorburn, who held highest rank on a statewide hiring list, was not promoted to vacancies at that prison nor other facilities.

While awaiting another hiring interview, Dr. Thorburn overheard the warden talking about interviewing candidates for chief medical officer. The warden referred to "that doctor and her problem with the death penalty." After notifying the warden's boss about the conversation, Dr. Thorburn was promoted the next day, although the department denied that she had been blackballed. Dr. Thorburn served as chief medical officer at two of the state's prisons before leaving to take a position in a state without the death penalty.

The three physicians in these examples were clear about their professional obligations regarding involvement in executions. They all took stands that brought them in direct conflict with correctional administrators. The support of the medical profession is essential to physicians in these positions.

A few states have chosen to specifically exempt health professionals employed by department of corrections from participating in executions. In New Mexico, a lethal injection state, corrections department regulations state that health care professionals working in correctional facilities cannot participate in any part of the execution procedure "without compromising their professional ethics and their capacity to provide services."44 In addition, the regulations bar psychiatrists working in correctional facilities from evaluating an inmate's competency for execution.

The Role of State Medical Societies and Licensing Boards

Many physicians will continue to participate in executions (some perhaps without enthusiasm) unless there is strong professional pressure combined with state acknowledgement of the professional ethics against medical involvement. Professional pressure is usually exerted through the influence of state medical societies and the regulatory power of state licensing boards. We surveyed all state medical societies about their position on physician participation in executions.

In the thirty-six states with death penalty statutes, ten medical societies said that they had written policies opposing physician participation; eighteenmedical societies said they had no stated policy, but would defer to the AMA on the issue. Sixteen societies indicated that they would support a physician who refused to participate in executions; twelve states said that they would sanction a physician for participating in executions as a violation of medical ethics. Ten medical societies said that they were aware of state laws regarding physician involvement.

In 1991, the AMA wrote to each state's licensing board to make them aware that the AMA considered physician participation in executions to be a serious violation of the ethical standards of the medical profession. However, to the best of our knowledge, no licensing board has taken action against a physician on these grounds.

27 Arizona State Prison Complex-Florence Internal Management Procedure 500 -Execution Procedures: §5.5.3.

28 San Quentin Institutional Procedures, §VI.A.9.c.

29 Department of Corrections Policy Statement No. OP-090901: "Procedures for the Execution of Inmates Sentenced to Death." Cited in: Medicine Betrayed: The Participation of Doctors in Human Rights Abuses, 1992, p. 112.

30 Oregon Department of Corrections Rule #24 (Tab 66), Capital Punishment, Death by Lethal Injection. OAR 291-24-045.

31 Florida State Prison Operating Procedure.

32 Department of Corrections Research File: Methods of Execution in North Carolina.

33 New Jersey Administrative Code 10A:16 - 10.8-10.14.

34 Interview with Donald Cabana, former warden at Parchman Prison in Mississippi. September 24, 1992.

35 Interview with Robert Johnson, Chairman of the Department of Justice, Law and Society at American University, Washington, DC. September 11, 1992.

36 Richmond Time-Dispatch, January 20, 1993.

37 Affidavit of John A. Vanlandingham, M.D., licensed to practice in Alabama. August 10, 1989.

38 The New York Times, December 13, 1984; The St. Petersburg Evening Independent, December 12, 1984.

39 The New York Times, October 17, 1985.

40 Interview with Donald Cabana, former warden at Parchman Prison in Mississippi. September 24, 1992.

41 Interview with Mellonese Harrison, M.D., Senior Physician, Nevada State Prison. November 11, 1992.

42 Telephone interview with Franklin W. Draper, attorney for Mr. Gaskins. August 7, 1992.

43 Anno BJ. Prison Health Care: Guidelines for the Management of an Adequate Delivery System. Washington, DC: U.S. Department of Justice; 1992.

44 New Mexico Corrections Department, Health Services Standard of Care Number 86/11/02.

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