The current issue of Mayo Clinic Proceedings (Sept., vol. 82, no. 9) has three articles on physician participation in executions.
David Waisel argues that doctors should be permitted, though not required, to participate in executions for the benefit of the condemned inmate. "I argue that it is honorable for physicians to minimize the harm to these condemned individuals and that organized medicine has an obligation to permit physician participation in legal execution." He also goes through and refutes a number of arguments against physician participation.
Waisel also notes that doctors sometimes do things for the good of society rather than the individual patient. His example is quarantine of a contagious patient. Another example I can think of is when a psychiatrist, who is an MD, involuntarily commits a mental patient on the ground he is dangerous to others. Under the Tarasoff decision, psychiatrists must also warn people threatened by their patients, even though that may mean breaking confidentiality and the arrest of the patient. These actions are accepted as medically ethical.
To counter this article, the editors saw fit to print not one but two editorials to the contrary. A guest editorial by Arthur Caplan is little more than an anti-death-penalty screed. He launches into an irrelevant tirade about physicians participating in executions (1) of people for acts which shouldn't be a crime at all, and aren't in the United States (such as homosexuality); (2) of people for acts which are crimes but are not punished by death here (such as tax fraud); (3) by methods which are not used in this country any more or never were; and (4) of "children."
On the last point, Caplan apparently hasn't gotten the memo on Roper v. Simmons, 543 U.S. 551 (2005), a very well-known decision rendered over two years before this ethics expert wrote his article. He writes, "Six nations (including the United States) permit the execution of children (defined as <18 years of age)." (The article originally said 8, but I will give him the benefit of the doubt that this was merely a typographical error.) And what is his source for this remarkable statement? "Amnesty International. Facts and figures on the death penalty. Available at: http://web.amnesty.org/pages/deathpenalty-facts-eng. Accessed August 6, 2007." This expert goes to the web site of a notorious truth-stretching organization, assumes their information is both correct and up to date, and prints it as fact without any further checking, when anyone seriously involved in the capital punishment debate in this country could have told him immediately it was not true. And the editors of a publication of one of America's most prestigious medical institutions let him get away with it.
Caplan's main point seems to be that the participation of physicians in execution will enhance the status of executions in the public mind. This is by far the weakest argument I have ever seen on the point. Caplan overestimates the status of physicians in the public mind. Given all the weighty considerations involved in the capital punishment debate, it is preposterous that the participation of physicians as such would add any significant weight to either side of the scale.
The editors themselves have a much more thoughtful editorial, leading one to wonder why they thought they needed Caplan's piece in the first place. They make the slippery slope argument, contending that the euthanasia slope has indeed been slippery in the Netherlands. They further contend that executions have nothing to do with the practice of medicine and that doctors therefore should not be involved.
The editors and Waisel are agreed on one point. All of this shouldn't be necessary. There are ways other than injection to administer life-ending drugs, ways that require less skill and are less prone to error. Waisel writes,
Capital punishment could easily be performed without the use of venous access. The use of medications associated with treatment of humans for capital punishment is an accident, the result of a decision to ask a physician rather than a veterinarian for help. One can imagine, for example, that a veterinarian could provide an acceptable alternative, such as subcutaneous administration of etorphine hydrochloride (a synthetic opioid) and acepromazine maleate (a phenothiazine) to effectively cause cardiopulmonary arrest. Indeed, with subcutaneous injection, concerns about intravenous lethal injection would be nonexistent, and most of the problems discussed in this article would be moot. Although the literature is sparse, I imagine a number of combinations could be delivered subcutaneously or intramuscularly that would anesthetize an inmate before causing death.
So why not change? This is a problem that pervades capital punishment. Every time one suggests an adjustment that could improve some aspect of substantive law, procedure, or execution, the response is "but our current method has already been litigated and upheld." That is a legitimate objection. The propensity of too many judges to seize upon any real or imagined defect to throw out the death penalty is a severe disincentive to change anything that has been approved in a binding precedent. Any change means years of litigation and uncertainty. So we stick with what we have, even though better ways are readily apparent.
Kent, do you think a strategy of getting the states to pass an alternative method as the default with lethal injection (as currently implemented) as an option for the inmate would work. The electric chair switch to lethal injection worked pretty well. Also, could the states take advantage of PLRA to shunt things away from the federal courts or foreclose 1983 suits by res judicata?
The political feasibility of legislation varies by state. In many, it is not possible to pass anything worthwhile.
PLRA helps, but it only requires exhaustion of administrative remedies, not state judicial remedies, as habeas does.
On the other hand, certification of a state under Chapter 154 prevents any nonhabeas stay of execution. See 28 USC ยง 2262(c).