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IV. Physician Participation in Executions and Medical Ethics

States present lethal injections as a quasi-medical way of executing the condemned. New Jersey law goes so far as to refer to the lethal chemicals as “execution medications.”174 But executions are not medical procedures, and professional ethics prohibit doctors from participating in them. Indeed, it was the growing practice of lethal injection executions that prompted the medical community to clarify and solidify its position that physician participation in executions violates the ethical precepts of the profession.

The prohibition against physician participation in executions is rooted in the medical ethics of a profession committed to the principles of non-malfeasance (the avoidance of causing harm) and beneficence (the affirmative provision of good).175 The American Medical Association’s “Code of Ethics” states: “A physician, as a member of a profession dedicated to preserving life when there is hope of doing so, should not be a participant in a legally authorized execution.”176 The AMA defines the prohibited participation to include monitoring vital signs, attending or observing as a physician, rendering technical advice regarding executions, selecting injection sites, starting intravenous lines; prescribing, preparing, administering or supervising the injection of drugs; inspecting or testing lethal injection devices; and consulting with or supervising lethal injection personnel. Under the AMA Code, the only permissible participation by a physician in an execution would be to provide a sedative to a prisoner upon his request prior to his execution and to certify the prisoner’s death after another person has pronounced it.177 The code of ethics for the Society of Correctional Physicians states: “The correctional health professional shall not be involved in any aspect of execution of the death penalty.”178 The American Nurses Association has adopted a similar provision, stating: “When the health care professionalserves in an execution under circumstances that mimic care, thehealing purposes of health services and technology become distorted.”179

Despite medical ethics, twenty-eight states require a physician to determine or pronounce death during an execution.180 Nine states require the presence of a physician without indicating the purpose of the physician’s presence.181 “One can only surmise that medical expertise is desired by those states to ensure that the execution runs smoothly, i.e., to respond in case something goes awry, or to pronounce death.”182 Some state rules call specifically for a more direct role for physicians. For example, in Oregon, 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.”183 California regulations require physicians to fit the heart monitor to the condemned inmate and to monitor the inmate’s heart. In Oklahoma, the original protocol devised by Chapman required a physician to inspect the catheter and monitoring equipment and to make certain the fluid would flow into the inmate’s vein. That provision is not present, however, in the current Oklahoma protocol.184

Physicians have, in fact, participated directly in the execution process itself. In 1990, three physicians administered the first lethal injection execution in Illinois.185 For a number of years, anesthesiologists injected the drugs in Arizona’s lethal injection executions, although that function is no longer undertaken by a doctor.186 During Texas’s first lethal injection execution, Dr. Ralph Gray, the state prison medical director, was present, along with Dr. Bascom Bentley, a physician in private practice, to pronounce the prisoner’s death. They watched as execution team members struggled to find intravenous access.187 Eventually, the team convinced Gray to examine the prisoner and point out the best injection site.188 Gray had also watched the warden mix the chemical agents. When the warden tried to push them through the syringe, he saw that because the warden had accidentally mixed all the chemical agents together, they had “precipitated into a clot of white sludge.”189 When Gray went to pronounce the prisoner dead, he found the prisoner was still alive.  Gray and Bentley suggested allowing more time for the drugs to circulate.190

More recently, a physician, who requested that his name and state remain anonymous, described three lethal injection executions where the execution technicians were having a hard time finding a vein to establish an intravenous line, because the prisoners were obese or had a past history of intravenous drug use, or both.191 Although present to monitor the EKG machine and pronounce death, the physician was called upon to help establish an intravenous line after the technicians had tried to do so for thirty minutes without success.192 During another execution in which the technicians could not find a vein, the physician also could not, and, in the end, he needed to place a central line—a complex and highly technical procedure which involves inserting the catheter in one of the deep large veins in the groin, chest, or neck.193

As the above examples suggest, executions can and do go awry, and it is not clear what would happen sometimes if physicians were not present. As one doctor who has certified the deaths of executed inmates noted, “If the doctors and nurses are removed, I don’t think [lethal injection] could be competently or predictably done.”194

Although there are exceptions, there is strong resistance in the medical profession to directly contributing to the “success” of an execution. Even doctors who work for correctional agencies have refused to participate in executions, sometimes at considerable professional cost.195 In Colorado, for example, the medical staff at the Department of Corrections refused “to have anything to do with the executions,” which is why the state uses EMTs to insert the catheter and inject the drugs.196

Human Rights Watch recognizes that the ethical prohibition on physician participation in executions limits the way states can conduct lethal injection executions. This is a dilemma of the states’ making—by their refusal to abolish capital punishment—and it is a dilemma states must resolve if they continue to use lethal injection executions. For example, alternative methods of lethal injection have been suggested that would negate the need for anesthesiologists to monitor levels of unconsciousness. Some states are considering legislation to prevent physician liability for participating in executions in breach of medical ethics, in the hopes this will facilitate their participation in executions.197 It is up to state legislators and corrections agencies to determine how to proceed, but they must do so respecting the human rights injunction to use the execution methods that will cause the least possible pain and suffering.

[174] “Preparation of Execution Substances and Medications,” New Jersey Administrative Code Title 10A, Section 23‑2.13.

[175] See, generally, American College of Physicians and Human Rights Watch, “Chapter 5: Medical Ethics and Physician Involvement,” Breach of Trust (New York: Human Rights Watch 1994).

[176] American Medical Association, “Code of Ethics,” Article 2.06, 1992 (copy on file with Human Rights Watch).

[177] Ibid.

[178] Society of Correctional Physicians, “Position Statement on Licensed Health-Care Providers in Correctional Institutions,” (retrieved April 2, 2006).

[179] American Nurses Association, “Ethics and Human Rights Position Statement: Nurse’s Participation in Capital Punishment,” December 8, 1994, (retrieved April 5, 2006).

[180] American College of Physicians and Human Rights Watch, Breach of Trust, p. 32. The AMA distinguishes between “pronouncing” death, which they consider unethical, and “certifying” death, which is acceptable. The difference is that the former involves monitoring the condition of the prisoner during the execution to determine at which point the individual has died; whereas certifying is confirming the individual is dead after another has pronounced it. Council on Ethical And Judicial Affairs, “Physician Participation in Capital Punishment,” Journal of the American Medical Association, 1993, p. 270, 365-368.

[181] American College of Physicians and Human Rights Watch, Breach of Trust, p. 32.

[182] Ibid.

[183] Oregon Department of Corrections, “Capital Punishment Death by Lethal Injection,” Rule No. 24 (Tab 66), OAR 291-24-045, quoted in American College of Physicians and Human Rights Watch, Breach of Trust, p.18-19.

[184] Ibid. See also: Affidavit of Mike Mullin; e-mail from Lisa McCalmont.

[185] American College of Physicians and Human Rights Watch, Breach of Trust, p. 10

[186] Interview with Myers.

[187] Atul Gawande, “When Law and Ethics Collide—Why Physicians Participate in Executions,” New England Journal of Medicine, Vol. 354, No. 12, March 23, 2006, p. 1221-1229, (retrieved April 5, 2006). The involvement of physicians in lethal injection executions is discussed more fully in American College of Physicians and Human Rights Watch, Breach of Trust.

[188] Gawande, “When Law and Ethics Collide.” 

[189] Ibid. The article does not explain whether new syringes were then prepared.

[190] Ibid.

[191] Ibid.

[192] Ibid.

[193] Gawande, “When Law and Ethics Collide.” For information about central line access: e-mail correspondence to Human Rights Watch from Heath, April 5, 2006.

[194] Gawande, “When Law and Ethics Collide.”

[195] For examples of corrections medical staff refusing to participate, see: American College of Physicians and Human Rights Watch, Breach of Trust, p.26-29.

[196] Interview with Atherton. EMTs apparently are not subject to the same ethical restrictions as physicians.

[197] Georgia House Bill 57 (2006) proposes: “Participation in any execution of any convicted person carried out under this article shall not be the subject of any licensure challenge, suspension, or revocation for any physician or medical professional licensed in the State of Georgia." (copy on file with Human Rights Watch). Oklahoma House Bill 2660 proposes: “No licensing entity, board, commission, association, or agency shall file, attempt to file, initiate a proceeding, or take any action to revoke, suspend, or deny a license to any person authorized to operate as a professional in the State of Oklahoma, for the reason that the person participated in any manner in the execution process as required or authorized by law or the Director of the Department of Corrections” (copy on file with Human Rights Watch).

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