Toxic Tinkering — Lethal-Injection Execution and the Constitution (New Eng Jour Med)

[pinto]

(Good article on physician participation in lethal injection execution from a medical ethics *and* Constitutional point of view. - pinto)

Toxic Tinkering — Lethal-Injection Execution and the Constitution
George J. Annas, J.D., M.P.H.

In the United States, a recurring question has been whether particular methods of execution are consistent with the Eighth Amendment to the Constitution, which states: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." The most recent new execution technique to raise this question is lethal injection. In 1977, Oklahoma became the first state to adopt lethal injection, and today it is used in 36 states and by the federal government. Deborah Denno has argued that in adopting lethal-injection executions, "The law turned to medicine to rescue the death penalty."2

After a number of statutes regarding lethal injection were passed, but before the country's first execution by lethal injection in 1982, William Curran and Ward Casscells wrote an influential article in the Journal arguing that physicians should not participate in executions by lethal injection.3 They wrote that lethal injection, unlike other methods, "presents the most serious and intimate challenge in modern American history to active medical participation in state-ordered killing of human beings . . . this procedure requires the direct application of biomedical knowledge and skills in a corruption and exploitation of the healing profession's role in society."3 The American Medical Association (AMA) and other medical societies quickly followed their advice, declaring the participation of physicians in executions by lethal injection unethical. Ethics, of course, is critical to the medical profession. But as Robert Veatch noted at the time, no principle of medical ethics itself defines or sets legal limits to the physician's role in executions4; this helps explain why some physicians still participate in executions by lethal injection.5,6

Much of this year's decision of the U.S. Supreme Court regarding lethal injection, Baze v. Rees, reads like Foucault's Discipline and Punish. Foucault, for example, analyzed torture in execution as well as the contemporary movement to replace the vicious executioner with "a whole army of technicians . . . warders, doctors, chaplains, psychiatrists, psychologists." Likewise, in Baze, the Supreme Court highlighted not only past uses of torture, but also issues of contemporary medical practice and medical ethics, including the drugs used, their method of delivery, the qualifications of the persons involved, and the similarities and differences between veterinary euthanasia practices and the Dutch protocols for euthanasia.7 The decision, which did not address the constitutionality of the death penalty itself, is fragmented and fractured, consisting of opinions written by seven different justices. Seven of the nine justices agreed that Kentucky's protocol for lethal injection, which was at issue in this case, is constitutional as is, but no more than three justices — Chief Justice John Roberts and two justices who signed on his plurality opinion — could agree on a specific standard that executions by lethal injection must meet.

<snip - article summarizes each Justice's opinion>

None of the justices even suggested that physicians should be required to participate in or be present during executions by lethal injection. All the justices who mentioned medical ethics supported medicine's ethical stand against physician participation.7 The bottom line for physicians is clear: the law does not require physicians to be involved in administering the death penalty, and the future "involvement of physicians in executions will up to the medical profession."23 To the extent that executions by lethal injection without physician participation could ultimately turn the public away from supporting capital punishment, this seems to be a much better outcome than medicalizing the death penalty in order to save it. The relationship between capital punishment and more humane forms of execution is complicated. For example, like Gawande, one can be for the death penalty and yet be opposed to physician participation in it.6 Similarly, one can, like Human Rights Watch, be opposed to the death penalty but still insist that until it is abolished, states must use the method that risks the "least possible pain and suffering of the inmate."16

Physicians should not lend their medical expertise to the state to make executions more palatable to the public, even by advising on drug protocols, doses, and routes of administration. Even physicians who support the death penalty should stay out of its execution, because the problem that the state seeks to solve by using physicians is one of the state's own making by its refusal to abolish capital punishment and its insistence on execution by lethal injection.16,24,25 For physicians who oppose capital punishment, more than medical ethics is involved in refusing to participate in executions. Basic fairness in applying the death penalty is also at stake. By rejecting even a role of expert adviser in redesigning drug protocols, physicians will be joining Justice Harry Blackmun. After more than 20 years of attempting to fairly apply the death penalty, he abandoned his support for it, saying that it was wrong for the Court to substitute "mere aesthetics" for principles and that he would no longer "tinker with the machinery of death."26

Source Information
From the Department of Health Law, Bioethics, and Human Rights, Boston University School of Public Health, Boston.

The New England Journal of Medicine is owned, published, and copyrighted © 2008 Massachusetts Medical Society. All rights reserved.

[True_Blue_KY_Dem]

1. The Death Penalty

I have lived almost all of my natural life within looking
distance to the "Castle On The Hill", i.e., the
Kentucky State Maximum Security Prison, located on the banks
of Barkley Lake in Lyon Co., KY. I have personally visited the
prison twice, once on a field trip in high school, where I did
actually sit in the famed "electric chair", where
many prisoners were executed and, on a another occasion, when
I had taken the state test for Correctional Officer,(100 out
of 100) on the test, after my "short-lived" career
in the US Navy. It caused me to have second thoughts about
ever wanting to work in that place, being locked up with
murderer's, rapist's and other felons. I do remember one
question they asked me during the interview process. They
asked me, "How would I react to a uprising at the
prison?" Would you be willing to risk your life? I think
that one response to that was, "No, I would NOT risk my
life. If I am being held hostage and the possibility of me
losing my life, as the result of a uprising, then, I'm taking
as many of them with me when I go!" I think that more or
less, sealed my fate of my getting a job within the prison
system.

I have always been a strong proponent of the death penalty and
it is beyond me why these people should even expect humane
treatment, when the people they killed or murdered weren't
given a choice, if they wanted to live or die. Why should they
expect the state to be humane with them?! Whether it be by the
electric chair, lethal injection or the gas chamber. I think a
little "suffering" on their part would fit the
punishment they inflicted on the people they murdered and the
people who have had to deal with that person being gone, as a
direct result of the person who inflicted those personal
scars. You do the crime, you do the time. Life offers so many
choices to people that it isn't funny, but, why turn to
criminal activity? You know you will end up being caught,
tried and convicted for the offense. I could really care less
if you have shown remorse for your crime. The simple fact is,
you should have thought of that before you committed the
crime!

To disagree with the appeals process, I believe, that once you
have exhausted all appeals, then, punishment should be moved
forward. The only time I would agree to a more lengthy appeal
is when DNA evidence suggests otherwise. That could mean the
difference between "life & death" of a
individual who is or could be presummed innocent because of
such testing. However, when it has been proven, beyond a
reasonable doubt, that the person who did the crime is guilty,
why waste the time of appeals? It is a waste of resources,
taxpayer money and the senility of the victims associated with
the crime. The murder of someone, is and will forever remain,
the one crime that the person who committed the crime should
have to pay with his life. Why give them "life in
prison" when it is a burden on the system? A lot of what
is wrong with the system today could be fixed, in a relative
short period of time, if the appeal process is speeded up. I
can see why state budgets are over-stretched because of
"life in prison" sentences. The state taxpayer
shouldn't have to be burdened with the care and upkeep of
prisoners who have committed murder. Give them 4 to 5 years to
appeal their case and that's it, after that, it's
"light's out".

I am not against lawyers, however, I am against the system
they have created that bleed state budgets for all they're
worth. Trust me, the money could be put to better use to
improving other aspects of government. One look at the
infra-structure of our roads is one area that needs desperate
attention versus caring for prisoners that don't deserve it.