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January 24, 2008

Can doctors block all US lethal injections (and indirectly abolish the death penalty)?

This new editorial authored by three physicians in the New England Journal of Medicine suggests a (clever?) game-plan for doctors playing a role in abolishing the death penalty.  Here is the key passage of the editorial (with my emphasis):

We are concerned that, regardless of its decision in Baze v. Rees, the Court may include language in its opinion that will turn again to the medical profession to legitimize a form of lethal injection that, meeting an appropriate constitutional standard, will not be considered "cruel and unusual punishment."  On the surface, lethal injection is a deceptively simple procedure, but its practical application has been fraught with numerous technical difficulties.  Without the involvement of physicians and other medical professionals with special training in the use of anesthetic drugs and related agents, it is unlikely that lethal injection will ever meet a constitutional standard of decency. But do we as a society want the nation's physicians to do this?  We believe not.

Physicians and other health care providers should not be involved in capital punishment, even in an advisory capacity.  A profession dedicated to healing the sick has no place in the process of execution.  On January 7 in oral arguments in Baze v. Rees, the justices asked many important and thoughtful questions about a potential role for physicians and other health care professionals in executions.  In their fuller examination of Baze v. Rees, the justices should not presume that the medical profession will be available to assist in the taking of human lives.  We believe that, like the anesthesiologists in the Morales case, all responsible members of the medical profession, when asked to assist in a state-ordered execution, will remember the Hippocratic Oath and refuse to participate.  The future of capital punishment in the United States will be up to the justices, but the involvement of physicians in executions will be up to the medical profession.

Anyone who did okay on the LSAT should readily be able to see how the pieces of this argument add up: (1) it is "unlikely" lethal injection "will ever" be constitutional "without the involvement of physicians and other medical professionals with special training," and (2) "physicians and other health care providers should not be involved in capital punishment, even in an advisory capacity," so therefore (3) it is unlikely there will ever be a constitutional lethal injection.

Why do I have a feeling these doctors also would view firing squads and all other execution methods as involving a "deceptively simple procedure" that is really "fraught with numerous technical difficulties"?  Of course, I did not got to med school, so perhaps I can't really understand what this is all about.

Some related posts on doctors and executions:

January 24, 2008 at 04:45 PM | Permalink

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Comments

Fortunately, the NEJM is not in charge of deciding what is a "constitutional standard of decency," and it is unlikely the Supreme Court will require physician involvement.

Posted by: Kent Scheidegger | Jan 24, 2008 5:06:08 PM

Oh yes, Kent, let us hope the Supreme Court does not require physician involvement in a complicated procedure by which we (the state) kill one of our own fellow citizens.

What a silly idea that doctors should be involved! Indeed, we really ought to look into whether Fox could put together some kind of reality TV show in which contestants could compete to serve as a Tex-ecutioner for a month or so. Maybe they could get Trump involved, and allow the winner to utter the new catch phrase, "You're FRIED" (although this would only really work in Nebraska).

Posted by: Sentencing Observer | Jan 24, 2008 6:08:37 PM

The issue, of course, is not whether physician involvement is a good idea, but whether it is constitutionally required.

Posted by: federalist | Jan 24, 2008 6:23:29 PM

Indeed, federalist. I think the premise is clearly that performing a complicated medical procedure w/o the involvement of any physicians -- with the attendant high risks of errors resulting from their absence -- is "cruel & unusual punishment."

Posted by: Sentencing Observer | Jan 24, 2008 7:09:45 PM

A complicated medical procedure that 18 year-old Navy Corpsmen can perform on a beach under fire. Whatever. This ain't brain surgery--it's inserting a needle into a vein and following instructions on mixing chemicals. Next time you're in a hospital, try getting a doctor to do all the "medical procedures" to be performed on you.

Posted by: federalist | Jan 24, 2008 7:25:19 PM

Bring back the firing squads then. Seriously, should the medical profession decide for the rest of us whether we can have a death penalty? Oh, and the authors are never politically motivated, now are they?

http://www.pointoflaw.com/archives/001932.php

Posted by: | Jan 25, 2008 12:02:23 AM

Doug wrote: "Why do I have a feeling these doctors also would view firing squads and all other execution methods as involving a 'deceptively simple procedure' that is really 'fraught with numerous technical difficulties'?"

I don't know. It's nowhere implied in or rationally inferable from the article, so I guess, like George W. Bush, you just like to go with your gut instead of your head.

The doctors are wrong (or at least imprecise), however, when they claim, "Without the involvement of physicians and other medical professionals with special training in the use of anesthetic drugs and related agents, it is unlikely that lethal injection will ever meet a constitutional standard of decency." If they are referring to the three-drug protocol--and I think they are--then that is correct. Anything less would mean that our standards of decency have evolved to a point where we offer dogs, cats, and even rats more protection from a torturous death than humans. (Then again, given the state of our society and its population with "good Americans," that probably is an accurate statement of where are standards of decency have devolved to.) If by that statement they mean to cover any form of lethal injection, e.g., including a single drug protocol, they would be wrong.

Posted by: DK | Jan 25, 2008 10:13:33 AM

Why would this abolish the death penalty? Wouldn't it simply return the states to the previous forms of execution, such as the electric chair and gas chamber?

Posted by: Ernie King | Jan 25, 2008 10:33:29 AM

DK -- I would have to disagree. The adjective "deceptively" most certainly has negative connotations that accompany it. The fact that the authors chose to call the procedure "deceptively simple" rather than just "simple" certainly permits a reader to infer that they have some disdain for capital punishment and would denigrate other forms of the DP.

Posted by: JustClerk | Jan 25, 2008 11:27:40 AM

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