Breach of Trust: Physician Participation in Executions in the United States

Medical Ethics and Physician Involvement

Behavior of physicians has been guided historically by the ethical tenets of nonmaleficence (the avoidance of causing harm) and beneficence (the affirmative provision of good). For most of medical history, these two principles defined the ethical limits of clinical practice.

Following the egregious violations of medical ethics perpetrated by physicians during the Nazi regime, the World Medical Association (formed in 1947) adopted two documents which embodied the spirit of the Hippocratic Oath as well as the lessons of the preceding decade.45 In the wake of Nuremberg revelations, the WMA sought to update the Hippocratic Oath to condemn physician complicity in the commission of antihumanitarian acts at the behest of the state.

The WMA's Declaration of Geneva states that all members of the medical profession must "maintain the utmost respect for human life from its beginning even under threat" and must not use medical knowledge "contrary to the laws of humanity."46 The International Code of Medical Ethics states that "a physician shall, in all types of medical practice, be dedicated to providing competent medical service in full technical and moral independence, with compassion and respect for human dignity."47 These documents are perhaps the most explicit statements about the medical profession's obligation to elevate medical ethics over contravening state laws or regulations. Physicians are in large measure governed by their own professional ethics, from which they derive the public trust and societal authority to practice medicine.

Physician involvement in the administration of capital punishment is ethically proscribed because it violates the ethical precepts of the profession. Medicine is a therapeutic and compassionate enterprise, and neither of these goals is consistent with physician participation in executions. In this section, we considerthe ethical questions posed by the many roles that physicians are asked to play in the execution process.

The Varieties of Medical Involvement

Increasingly, penal authorities have employed the medical profession's evaluative skills and therapeutic techniques to prepare prisoners for execution and to legitimate the act of killing. Although some may propose that the physicians' functions ensure a more "humane" execution, on deeper analysis, the goal appears not to reduce pain, but to maximize efficiency. The major forms of such involvement are set out below: Medical Evaluation Physicians have been asked to use their evaluative skills in three ways: clinical assessment of condemned inmates' mental competence for execution, physician examination in preparation for the execution, and clinical monitoring of vital signs during the execution. Psychiatric Assessment of Competence to be Executed For at least 300 years, the notion that insane persons should not be executed has been part of Anglo-American law. However, only in 1986 did the U.S. Supreme Court elevate this idea to the status of a constitutional requirement. In Ford v. Wainwright, the Court held that the execution of an incompetent person violates the Eighth Amendment proscription against cruel and unusual punishment, and that trial-type procedures are constitutionally necessary to determine competence for execution.48 However, the Court neither required that psychiatric testimony be part of such hearings nor set forth criteria for the assessment of competence. The role of psychiatrists in such proceedings is ill-defined in American law and has been vigorously contested by medical ethics commentators.49

Physical Evaluation in Preparation for the Execution Physicians also perform pre-execution physical evaluation of patients. As we described in Chapter 4, physicians have provided advice on drugs and helpeddesign protocols for lethal injection executions. Physicians have examined veins for lethal injections and measured height and weight for hangings. Clinical Monitoring This evaluative role continues during the execution itself. Twenty-three states specifically require a physician to determine or pronounce death during the administration of capital punishment as mandated in their state statutes or regulations. [See TABLE 2] In order to determine or pronounce death, physicians need to monitor vital signs of the condemned, usually with stethoscopes or electrocardiograms. If the initial attempt to execute the prisoner fails for any reason, a physician may be called upon for advice as to whether additional shocks or lethal chemicals should be administered, or whether the patient should be resuscitated to await a future execution attempt.

In addition, at least twenty-eight states require the presence of a physician, another five claim that a physician "may" be present. [See map of physician participation by state]. Since these laws do not indicate the purpose of the physician presence, one can only surmise that medical expertise is desired by the state to ensure that the procedure runs smoothly, in case something goes awry, or to pronounce death. Mere physician "presence" in the execution chamber risks conveying the message that the execution is countenanced by the medical profession.

The AMA guidelines make a distinction between "pronouncing" death, which they hold to be unethical, and "certifying" death, which they hold to be acceptable. According to the AMA report, whereas pronouncing involves "monitoring the condition of the condemned during the execution and determining at which point the individual has actually died," certifying is "confirming that the individual is dead after another person has pronounced or determined that the individual is dead."50 Certification of death occurs after the execution is complete, and does not require the presence of the physician at the site of the execution. Medical Intervention Medical intervention on death row pursues both therapeutic and non-therapeutic purposes. Such intervention can be divided into four distinct categories: medical treatment that has no bearing on whether a prisoner is subsequently executed; treatment that restores or maintains a prisoner's competencefor execution; use of clinical methods to subdue condemned inmates who physically resist execution procedures; and the use of clinical techniques as part of the physical process of killing. Medical Care That Does Not Facilitate Execution Inmates on death row have a constitutionally-protected right to basic medical treatment.51 Long-term death row prisoners often have significant medical needs that can be met without facilitating execution; such medical care can be clearly distinguished from participation in execution by the establishment of a doctor-patient relationship, and by the voluntariness of treatment. Psychiatric Treatment to Restore or Maintain Competence for Execution A judicial finding that a prisoner is incompetent to be executed compels the state to defer execution until competency is restored. In this clinical context, successful psychiatric treatment, followed by a legal determination of competence, results in the death of the condemned person. If the prisoner is not treated, execution is deferred indefinitely, unless the inmate's mental status improves spontaneously.

The constitutionality of involuntary treatment to restore competence for execution remains unsettled. In 1990, the U.S. Supreme Court heard arguments of Perry v. Louisiana, which involved a psychotic death row inmate.52 The condemned man, Michael Owen Perry, challenged the constitutional validity of a trial judge's order that he be medicated by prison physicians, forcibly if necessary, to render him competent for execution. The justices voided the involuntary medication order without issuing an opinion and sent the case back to the Louisiana courts for reconsideration. In late 1992, Louisiana's high court held that such involuntary medication constitutes punishment, not therapy, and thereby violates the state's constitutional proscription against "cruel, excessive or unusual punishment."53 If appellate courts in other states follow Louisiana's lead, the practice of medicating death row inmates against their will to ensure their competence for execution could disappear without a federal constitutional ruling.

By contrast, voluntary treatment that maintains competence for execution is legal, so long as the physician ensures that the patient grasps the legal implications of treatment success. The potentially lifesaving consequences of a psychiatric relapse, as well as the deadly results of treatment success, are central to consent to psychiatric treatment on death row. As such, they should be explained to competent patients in order to comply with the requirement of informed consent.

The arguments against treatment to restore competency are not only legal, but ethical. It seems clear that in most of these instances the physician serves the interests of the state and not those of the patient. Techniques for Overcoming Physical Resistance Prison officials may ask a physician to use pharmaceutical or other clinical methods to subdue an inmate who is resisting execution. If sedation is provided in the absence of the inmate's request and consent, the physician becomes a participant in the execution. This type of medical intervention is rather rare. Clinical Methods as Part of the Execution Process As we have shown, physicians have also been directly involved in the execution itself, primarily in the process of lethal injections. Cases have been reported in Illinois and Missouri where physicians have inserted intravenous lines and administered lethal injections. Although none of the states that use lethalinjection actually require a physician to be the executioner, only New Jersey specifically excludes physicians from that role.

Ethical Analysis

Background The contemporary ethical prohibition against medical participation in capital punishment is deeply rooted in the professional tradition of nonmaleficence. In recent years, physician participation has been condemned by the World Medical Association, the World Psychiatric Association, and national medical societies throughout the industrialized world, including the United States.54 Some opponents of physician involvement base their objections on their belief that capital punishment is immoral or contrary to international law. 55 Many others, including the American Medical Association, take the position that the morality of the death penalty is a matter of personal conscience but that physician complicity in its administration is nevertheless unethical.

Physician participation in executions represents a significant challenge to morality of the medical profession. For patients and the public, the credibility of physicians is inextricably linked to the medical profession's separation from activities that directly conflict with its central mission. As AMA executive vice president James Todd, M.D., recently said, "When the healing hand becomes thehand inflicting the wound, the world is turned inside out."56 Society trusts that physicians will work for the benefit of their patients; that trust is threatened by physician participation in executions.

Many commentators have based their opposition to physician participation in executions on the Hippocratic dictum, "first, do no harm." As one physician has written, "Doctors are not executioners. Inflicted death is antithetical to their ancient creed."57 The Council on Ethical and Judicial Affairs of the AMA notes, "Physician participation in executions contradicts the dictates of the medical profession by causing harm rather than alleviating pain and suffering."58

Some people might suggest, however, that physician participation could be construed as compassionate and caring, rather than harmful. Lethal injection, for example, was introduced as a method that would appear to be less excruciating than electrocution, the gallows, or gas. A physician might conclude that given the inevitability of an execution, participation might be ethically acceptable. Although physician participation in some instances may arguably reduce pain, there are many countervailing arguments. First, the purpose of medical involvement may not be to reduce harm or suffering, but to give the surface appearance of humanity. Second, the physician presence also serves to give an aura of medical legitimacy to the procedure. Third, in the larger picture, the physician is taking over some of the responsibility for carrying out the punishment and in this context, becomes the handmaiden of the state as executioner. In return for possible reduction of pain, the physician, in effect, acts under the control of the state, doing harm.

Physicians are clearly out of place in the execution chamber, and their participation subverts the core of their professional ethics, which require them to "maintain the utmost respect for human life from its beginning even under threat" and to provide "competent medical service in full technical and moralindependence, with compassion and respect for human dignity."59 These insights produce a more subtle and comprehensive prohibition on physician participation than simple reliance upon the Hippocratic dictum of primum non nocere. Nevertheless, the maxim, "first, do no harm" represents a powerful, evocative ideal.

Of course, we do not and cannot divorce all medical activities from service to the state. Medical evaluation commonly determines whether persons receive or are denied disability benefits, workers' compensation, tort damages, insurance, and some types of employment. Clinical assessments bear on people's rights to sign contracts, make wills, and otherwise be regarded as autonomous actors. But adjudicating social benefits and facilitating execution are two very different acts. Moreover, service to society in a manner that exposes individuals to harm can undermine the credibility of medicine as a therapeutic endeavor. This had led medical ethics authorities to conclude that some clinical work on behalf of state purposes is ethically intolerable. Sometimes, this conclusion derives from the illegitimacy of a purported social purpose. Proscriptions against medical evaluation of prisoners' fitness for torture are one such example.60 In other instances, this conclusion rests on the perception that some state purposes, while arguably legitimate, are so antithetical to the physician's therapeutic role as to be incompatible with it. An example is the waging of war. The use of medical skills to kill enemy soldiers is universally viewed as unethical. The proscription against physician participation in capital punishment fits into this latter category. Punitive killing is contrary to longstanding professional tradition, which has singled out medically-inflicted death as a special concern. In our century, concerns about medical killing have been heightened by awareness of Nazi medical atrocities.61 The special status of killing in medical ethics reflects its singular, awesome finality that is different from other harms.

It has been argued that acceptance of the non-provision of life-prolonging treatment, or even euthanasia in some situations, proves that the difference betweenexecution and other harms lacks "categorical force" from a medical ethics perspective.62 But withdrawal of life-sustaining technology at a patient's behest is consonant with the duty most fundamental to the medical ethics tradition, the obligation to keep faith with patients. When a physician takes away life sustaining treatment, it is the disease, and not the state, that kills the patient. By contrast, death sentences are not executed to keep faith with the condemned. Even in the unusual case of a defendant who expresses a persisting preference for death, execution is punishment, first and foremost. Physician deference to patient choice with respect to life-sustaining treatment honors the Hippocratic tradition of fidelity to patients. As such, it cannot plausibly be compared to medical complicity in the punitive termination of life by the state. Defining "Participation" What activities constitute physician "participation" in capital punishment? The medical ethics authorities that have condemned such participation have, for the most part, failed to address this question. In 1991, at the request of the American College of Physicians, the American Medical Association took a large step toward the formulation of guidelines for physician activities on death row. As we stated earlier, the AMA's House of Delegates, the association's legislative body, instructed the AMA Council on Ethical and Judicial Affairs (CEJA) to develop a definition of participation that included the following prohibited activities:

selecting lethal injection sites

starting intravenous lines to serve as ports for lethal injections

prescribing or administering pre-execution tranquilizers or other psychotropic agents

inspecting, testing, or maintaining lethal injection devices

consulting with or supervising lethal injection personnel

monitoring vital signs on site or remotely (including monitoring electrocardiograms)

attending, observing, or witnessing executions as a physician

providing psychiatric information to certify competence to be executed

providing psychiatric treatment to establish competence to be executed

soliciting or harvesting organs for donation by condemned prisoners 63 In 1992, CEJA issued a report that provides detailed guidance regarding all but the last three activities.64 Detailed guidelines regarding psychiatric participation in executions were deferred pending consultation with the Ethics Committee of the American Psychiatric Association. The American College of Physicians, Human Rights Watch, The National Coalition to Abolish the Death Penalty, and Physicians for Human Rights endorse the prohibitions adopted by the AMA's House of Delegates. We offer our own analysis below, by way of clarification and amplification. We divide our discussion into two categories--activities about which there is broad ethical consensus and activities that continue to engender controversy. Areas of Consensus

Medical Care That Does Not Facilitate Execution Ethics authorities and commentators are virtually unanimous in their support for the appropriateness of medical care that has no effect on whether or not an inmate is subsequently executed. The health needs of prisoners, on death row and elsewhere, are too often neglected. Physicians who attend to prisoners often do so under difficult circumstances, with inadequate resources. Prolonged death row confinement is associated with many physical and mental health problems. As long as informed and competent consent is obtained from inmates in a non-coercive manner, clinical care that does not facilitate execution is both ethical and desirable. Interventions That Facilitate Execution Preparation for execution represents a spectrum of involvement from advising correctional officials on the appropriate techniques for execution to actually preparing or administering lethal injections. All of these activities are ethically inappropriate for physicians and should not be tolerated.

Physician involvement in physical assessment to prepare for the execution - e.g., examination of potential sites for lethal injection or measurement of height and weight in preparation for hanging - has been uniformly condemned asunethical. These actions have no conceivable therapeutic purpose. The physician who performs them acts literally as the executioner's assistant. These functions are so closely tied to the act of killing as to be ethically indistinguishable from it.

Physician monitoring of cardiac function, pulse, and respiration during the process of killing has also been uniformly condemned as unethical. Not only does such monitoring lack any therapeutic purpose; it makes physicians into key administrators in the killing process. The monitoring physician's indication that signs of life persist is tantamount to an order for lethal measures to be continued. This intimate causal link between the monitoring of vital signs and the death of the condemned compels the conclusion that such monitoring is unethical for physicians. Areas of Controversy

Psychiatric Treatment that Restores Competence for Execution Treatment that restores death row inmates to competence for execution is widely believed to be unethical. However, some prison psychiatrists contend that it is ethical so long as it is done for the purpose of relieving the psychiatric symptoms, rather than for the purpose of killing the inmate. To proponents of this view, the legal consequences of treatment success are ethically irrelevant. Adherents to this view see themselves as acting within the Hippocratic tradition even when successful treatment leads to the killing of the condemned. In so doing, they distort the Hippocratic commitment into an ethic of indifference to patients as persons. This indifference is underlined by the obviousness of the penal function that such treatment serves. However the treating psychiatrist understands his or her role, the ultimate, public end furthered by clinical "success" is the execution of the condemned. Psychiatric treatment that has the effect of restoring competence for execution should thus, as a rule, be regarded as unethical.

On the other hand, one can imagine circumstances in which an ethic of commitment to patients as whole persons might lead a psychiatrist to consider the legal consequences of therapeutic success and nonetheless decide to treat. For example, a delusional prisoner's self-mutilating behavior or a severely disorganized psychotic inmate's inability to eat invite the judgment that the urgency of relieving agony or forestalling an immediate threat to life outweighs the prospect of execution. This possibility merits an exception to the proscription against treatment that might restore the condemned to competence. But this exceptionshould be sharply limited, to cases of extreme suffering or immediate danger to life.65 Psychiatric Evaluation Bearing on Competence to be Executed The ethics of psychiatric evaluation in this context have in recent years been a subject of bitter controversy. The AMA, the British Medical Association, and many medical ethics commentators have concluded that such evaluations constitute unethical participation in executions. However, some practitioners of forensic psychiatry (defined as the actions of psychiatrists in assisting the law to carry out some of its responsibilities) dispute this view on the grounds that they have no ethical duty to concern themselves with harm that may result from forensic evaluation.66 They assert that the Hippocratic ethic of commitment to patient well-being is irrelevant to their work because, when doing forensic assessments, they do not function as physicians.67

This claim ignores the reality that forensic practitioners derive their authority - their franchise to make legally significant distinctions based upon health status - from their training and status as physicians. Forensic practitioners are physicians in the eyes of the public, the courts, and even their examinees. The lines between therapeutic and forensic work are blurry, both in popular understanding and daily practice. Equally worrisome is the open-endedness of the claim that forensic physicians do not function as doctors. If psychiatrists who evaluate competence for execution can say that they are not acting as doctors, why can't internists who select lethal injection sites say the same?

Clinical assessment of an inmate's competence to be executed is unethical, we believe, because it gives the medical profession a decisive role with respect to the final legal obstacle to execution. The proximity between this clinical role and the act of killing casts doctors metaphorically as hangman's aides. On this basis,clinical examination and testimony bearing on competence for execution can be distinguished from other forensic activities that result in harm to the subjects of evaluation.

45 These were the Declaration of Geneva (1948) and the International Code of Medical Ethics (1949).

46 World Medical Association. Handbook of Declarations 22 (1985).

47 Ibid.

48 477 U.S. 399 (1986).

49 Bloche MG. Psychiatry, capital punishment and the purposes of medicine. International Journal of Law and Psychiatry (forthcoming).

50 Council on Ethical and Judicial Affairs. Physician participation in capital punishment. Journal of the American Medical Association 1993;270:365-368.

51 Estelle v. Gamble, 429 U.S. 97 (1976).

52 494 U.S. 1015 (1990) (granting certiorari).

53 Perry v. Louisiana, 610 So. 2d 746 (1992).

54 World Medical Association. Resolution on Physician Participation in Capital Punishment. In: Handbook of Declarations 22 (1985). World Psychiatric Association. Declaration on the Participation of Psychiatrists in the Death Penalty (1989).
As of 1989, national medical associations in at least nineteen countries had formally stated their opposition to physician participation in capital punishment. These included the American Medical Association and the medical societies of Japan, France, the Netherlands, Ireland, Denmark, Finland, Iceland, Norway, Sweden, Portugal, Poland, Switzerland, Turkey, New Zealand, Singapore, Peru and Chile. Amnesty International, Health Professionals and the Death Penalty, 1989.

55 This sentiment prevails in Europe, where most nations have ratified a protocol of the European Convention on Human Rights that calls for the death penalty to be abolished. For a comprehensive discussion of the international legal status of the death penalty, see Rodley NS. The Treatment of Prisoners Under International Law, UNESCO, Paris, Claredon Press, Oxford 1987.

56 Address given by James Todd, M.D., at the opening of the exhibit entitled "The Worth of the Human Being: Medicine in Germany 1918-1945," on November 5, 1992, in Washington, D.C.

57 Thorburn KM. Doctors and executions. American Journal of Dermatopathology 1985;7:87.

58 Council on Ethical and Judicial Affairs. Physician participation in capital punishment. Journal of the American Medical Association 1993;270:365-368.

59 World Medical Association. International Code of Medical Ethics, Handbook of Declarations 22 (1985).

60 United Nations, Principles of Medical Ethics Relevant to the Role of Health Personnel, Particularly Physicians, in the Protection of Prisoners and Detainees Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. U.N. Doc. ST/DPI/801, 1982; and World Medical Association, Declaration of Tokyo.

61 Proctor R. Racial Hygiene: Medicine Under the Nazis, 1988.

62 Bonnie R. Dilemmas in administering the death penalty: conscientious abstention, professional ethics, and the needs of the legal system. Law and Human Behavior 67,76; 1990.

63 Resolution 5, on Defining Physician Participation in State Executions, introduced by the American College of Physicians, 1991 Interim Meeting of the American Medical Association's House of Delegates.

64 Council on Ethical and Judicial Affairs. Physician participation in capital punishment. Journal of the American Medical Association 1993; 270:365-368.

65 Anti-psychotic treatment on death row to relieve such suffering is consistent with the emerging consensus that preservation of life should not always take priority over the relief of suffering. See, for example, Council on Ethical and Judicial Affairs. Withholding life-prolonging medical treatment. Journal of the American Medical Association 256:1986.

66 Bloch S. and Chodoff P. Psychiatric Ethics. Oxford: Oxford University Press, 1981.

67 Appelbaum P. The parable of the forensic psychiatrist: ethics and the problem of doing harm. International Journal of Law and Psychiatry, 1990.