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May 29, 2008

Notable examination of doctors and the death penalty

I just came across this SSRN posting of an interesting-looking paper titled "Doctors, Discipline, and the Death Penalty: Professional Implications of Safe Harbor Statutes."  Here is the abstract:

State capital punishment statutes generally contemplate the involvement of medical providers, and courts have acknowledged that the qualifications of lethal injection personnel have a constitutionally relevant dimension.  However, the American Medical Association has consistently voiced its opposition to any medical involvement in executions.  In recent years, some states have responded to this conflict by adopting statutory mechanisms to encourage medical participation in lethal injections.  These safe harbor provisions, which prohibit state medical boards from taking disciplinary action against licensed medical personnel who choose to participate in executions, were adopted without legislative or public debate about their merits and have yet to be examined in the academic literature.

Safe harbor provisions serve controversial goals related to criminal punishment, rather than supporting the traditional goals of medical regulation.  As a result, they call into question the efficacy and independence of state medical boards in protecting patient interests and are likely to have a corrosive effect on public confidence in the medical profession.  Because even the best available justification for these disciplinary safe harbors is not persuasive enough to outweigh their professional implications, the establishment of safe harbors in the context of capital punishment is ill advised as a policy matter. Contrary to critics' assertions, allowing medical boards to exercise their discretion to discipline execution participants will not sound a death knell for the death penalty.  However, in stripping executions of their clinical veneer, our society may be forced to come to terms with a process it has long sought to conceal.

Some related posts on doctors and execution protocols:

May 29, 2008 at 02:06 PM | Permalink


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Tee off, please. It's low-hanging fruit for you, but I'm interested in your comments.


Posted by: Mark | May 29, 2008 4:14:53 PM

"As a result, they call into question the efficacy and independence of state medical boards in protecting patient interests and are likely to have a corrosive effect on public confidence in the medical profession."

Sometimes you have to wonder whether people smell it before they shovel it. Does anyone seriously think that the fact that a handful of docs in state participate in state-sanctioned excutions without fear of sanctions from the sanctimonious boards is going to cause average citizens to lose confidence in the medical profession? To the contrary, I would hazard to guess that when a state licensing board interferes with executions (i.e., a non-medical procedure sanctioned by the state) by way of its authority over doctors, it loses credibility.

Posted by: federalist | May 29, 2008 4:15:29 PM

Mark, I had posted before I saw your post. Appreciate the confidence. I don't seem to have too many friends here . . . . Of course, that's probably my fault. I am not the most gentle of posters.

I hope I did not disappoint.

Posted by: federalist | May 29, 2008 5:26:21 PM


People might think that (people can think anything). The question is: Where is the evidence that they actually do think it?

None is cited in the abstract, and I am aware of none. It is certainly counter-intuitive to believe that the public would distrust a doctor, much less the medical profession, for assisting in a court-ordered execution.

Of course what this is really all about is trying to find some gimmick to make executions impossible -- i.e., to effectively end the DP without ever having to win the case for abolition with either the electorate or the judiciary.

Doctors are routinely required to, for example, furnish otherwise confidential patient information in response to a subpoena. The carrying out of the law is, so far as I know, uniformly regarded as a function that trumps the rules of professional associations.

If a point be made of it, though, the reason that medical ethics don't apply in this context is that condemned prisoners are not patients and the doctors in the execution chamber are not acting as doctors. The usual Hippocratic duty to do no harm simply does not apply, because the whole point of an execution is hardly to heal. Doctors are not there to practice any healing science, which is their usual mission. They are there essentially as chemical technicians (who will replace them if the state medical boards get feisty).

Doctors sometimes become soldiers, whose mission in combat is not exactly to heal. But no one seriously doubts that doctors can properly do this, because people understand that the doctors are not acting in their normal professional roles, and that the enemy combatants they might wound or kill are not patients to whom they owe any professional duty whatever.

As I say, the whole thing is a gimmick. What will happen if these few medical boards get their way is not an end to executions (although that's what they hope for). What will happen is that the state will go back to a method that is potentially nastier, such as the gas chamber, but that doesn't need a medical technician.

The notion that important matters of broad public policy can be dictated by a professional group consisting of a fraction of one percent of the population is quaint, but ridiculous.

P.S. I'm in New Haven this weekend, but a computer seems to have followed me here, so I can stay at least a little plugged in.

Posted by: Bill Otis | May 30, 2008 7:54:32 AM

Too bad the American Medical Association doesn't prevent doctors from terminating the lives of unborn children. What is the count now? 40 million deaths and rising.

Posted by: justice seeker | May 30, 2008 9:50:11 AM

Justice seeker, I actually disagree with you. I am very very pro-life and vehemently opposed to Roe v. Wade, but, at the end of the day, if abortion is decided by the polity to be a right, then a select few really don't have the right to thwart it in such a manner.

The abortion toll really is stunning. "Safe, legal and rare" is an amazing piece of propaganda.

Posted by: federalist | May 30, 2008 8:27:42 PM


I don't quite understand your point, don't know who you are referencing when you say "a select few." In any event, my previous point was an attempt to highlight the utter hypocrisy of the AMA when it comes to their views on the death penalty and abortion.

Posted by: justice seeker | Jun 2, 2008 10:27:25 AM

The select few being the AMA or anyone else who is in a position to use ethical rules to ban abortion, as you seem to suggest. We as a society have to come to a view on abortion--one way or another, and while Roe v. Wade is appallingly illegitimate as a matter of judge-made law, the ability of women to have an abortion is something that enjoys wide, if grudging and qualified, support. I don't think that the AMA or state boards banning abortions through constraints on ethical rules is justified at all. I will say this--if you are going to stand up for a select few getting to thwart the will of the majority--abortion would be my choice over capital punishment. No matter how abhorrent people may find capital punishment, it pales in comparison to the sheer numbers of aborted children and the sickening practice of aborting late-term unborn completely healthy children.

And, by the way, there is a good faith argument that the AMA is not hypocritical, since the view is that the patient is the woman choosing the abortion. I don't much buy it, but if you are of the view that the fetus is not a person, you can wriggle out of the hypocrisy charge.

Posted by: federalist | Jun 2, 2008 3:35:01 PM


Didn't mean to suggest that the AMA should ban abortions. If my first post was worded that way, need to write more clearly. I enjoy reading your posts.

Posted by: justice seeker | Jun 2, 2008 5:30:00 PM

justice seeker, thanks for the compliment . . . . yours is a refreshing voice around here as well.

I don't get too many compliments around here--although I suspect I share in some of the blame for that.

Posted by: federalist | Jun 2, 2008 6:16:37 PM


Medical groups cite that there is an ethical conflict for participation in the lethal injection process, because medical professionals have a requirement to "do no harm".
Those ethical codes pertain to the medical profession, only, and to  patients, only. Judicial execution is not part of the medical profession  and death row inmates are not patients.
Doctors and nurses can be police and soldiers and can kill, when deemed appropriate,  within those lines of duty and without violating the ethical codes of their medical profession. Similarly, medical professionals do not violate their codes of ethics, when acting as technical experts, for executions, in a criminal justice procedure.
Physicians are often part of double or triple blind studies where there is hope that the tested drugs may, someday, prove beneficial. The physicians and other researchers know that many patients, taking placebos or less effective drugs, will suffer more additional harm or death because they are not taking the subject drug or that the subject drug will actually harm or kill more patients than the placebo of other drugs used in the study.
Physicians  knowingly harm individual patients, in direct contradiction to their "do no harm" oath.
For the greater good, those physicians sacrifice innocent, willing and brave patients. Of course, there have been medical experiments without consent and, even, today, they continue ("Critical Care Without Consent", Washington Post, May 27, 2007; Page A01).
The greater good is irrelevant, from an ethical standpoint, if "Do no harm" means "do no harm". 

Physicians knowingly make exceptions to their "do no harm" requirement, every day, within their profession, where that code actually does apply. And, they should. There are obvious moral and ethical nuances and we should consider and pay attention to them, as is done within the medical profession.
The "do no harm" has no ethical effect in a non medical context, because this ethical requirement is for medical treatments, only, and for patients, only.
For those who distort the Hippocratic oath, I would suggest they read the original, classic versions, which only prohibits abortion and euthanasia., two practices commonly accepted by many physicians.
The acknowledged anti death penalty editors of The Public Library of Science (PLoS) Medicine agree. They write:

"Execution by lethal injection, even if it uses tools of intensive care such as intravenous tubing and beeping heart monitors, has the same relationship to medicine that an executioner's axe has to surgery."  ("Lethal Injection Is Not Humane", PLoS, 4/24/07)

The PLoS Medicine editors have made the same point many of us have been making - similar acts and similar equipment do not establish any equivalence or connection.
There is no ethical connection between medicine and lethal injection. Therefore, there is no ethical prohibition for medical professionals to participate in executions.
To put it clearly: The execution of death row inmates is not equivalent or connected to the treatment of patients. 
Is this a mystery?

Obviously, execution is not a medical treatment, but a criminal justice sanction. The basis for medical treatment is to improve the plight of the patient, for which the medical profession provides obvious and daily exceptions. The basis for execution is to carry out a criminal justice sentence where death is the sanction. 

Lethal injection is not a medical procedure. It is a criminal justice sanction authorized by law. Therefore, there is no ethical conflict with medical codes of conduct and medical personal participating in executions.
Any participation in executions by medical professionals should be a matter for their own personal conscience. In fact, 20-40% of doctors surveyed would participate in the execution process.
A side note:

40,000 to 100,000 innocents die, every year, in the US because of medical misadventure or improper medical treatment. (2)
Do no harm? The doctor doth protest too much, methinks.

Posted by: Dudley Sharp | Jun 3, 2008 9:53:54 AM

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