Clinicians' Involvement in Capital Punishment — Constitutional Implications (New Eng Jour Med)

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Clinicians' Involvement in Capital Punishment — Constitutional Implications

Nadia N. Sawicki, J.D., M.Bioethics
N Engl J Med July 10, 2014

If capital punishment is constitutional, as it has long been held to be, then it “necessarily follows that there must be a means of carrying it out.”1 So the Supreme Court concluded in Baze v. Rees, a 2008 challenge to Kentucky's lethal-injection protocol, in which the Court held that the means used by Kentucky did not violate the Eighth Amendment's prohibition against cruel and unusual punishment. Lethal-injection procedures have changed significantly since 2008, and that fact coupled with Oklahoma's recent botched lethal injection of Clayton Lockett, the latest in a long series of gruesome and error-ridden executions, has raised questions about whether current methods would pass constitutional muster if reviewed by the Supreme Court. Unfortunately, they probably would.

This likelihood may surprise members of the medical and scientific communities who oppose involvement by their professions in implementing the death penalty. Lethal injection, the primary execution method used in all death-penalty states, was adopted precisely because its sanitized, quasi-clinical procedures were intended to ensure humane deaths consistent with the Eighth Amendment. But experiences like Clayton Lockett's, which result from prisons' experimentation with untested drugs and reliance on personnel with unverifiable expertise, demonstrate the dearth of safeguards for ensuring that this goal is actually achieved. Some drug companies now refuse to distribute drugs used for executions, pharmacies are reluctant to participate unless their identities are shielded, and organized medicine has taken a stand against physicians' involvement in capital punishment. Nevertheless, states have demonstrated their willingness to continue with lethal injections, and most federal courts have allowed executions to proceed in the face of constitutional challenges. The time is therefore ripe for the medical and scientific communities to consider, once again, their role in this process.

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Although continued opposition by the medical profession is constitutionally immaterial, it may be effective if used as a means of advocacy for policy change. Perhaps voters, reacting to executions during which prisoners shout out and writhe in pain, will democratically decide that capital punishment is inherently inhumane. But if abolishing capital punishment requires public awareness of the harms inflicted during botched executions, then these harms (which have been occurring for decades without prompting nationwide policy change) must continue — a troubling prospect.

Moreover, even if these experiences inspire policy changes, it's unclear what form those changes will take. Perhaps states will revert to execution methods that don't require medical expertise, such as electrocution, as Tennessee recently announced it would. Perhaps states will take advantage of courts' liberal policies on executions' secrecy4,5 and further reduce transparency and public accountability. Perhaps, if states decide to continue with lethal injection even without clinicians' involvement, the claim that medical ethics permits compassionate assistance to reduce prisoners' suffering may carry greater weight. In the meantime, uncertainty regarding voters' and politicians' likely reactions to botched executions increases the importance of continued discussion about professional ethics and role conflicts within the medical and scientific communities.

http://www.nejm.org/doi/full/10.1056/NEJMp1405651?query=health-policy-and-reform