Physician Participation in Executions: Care Giver or Executioner?

Editorial, “Medical Collusion in the Death Penalty: An American Atrocity,” The Lancet 365 (April 16, 2005): 1361.

Robeznieks A. , “In the Execution Chamber: Do Doctors have a Place – At All?” AM News, October 25, 2004, at 1, available at <http://www.ama-assn.org/amednews/2004/10/25/prsa1025.htm> (last visited January 3, 2006).

Emanuel L. and Bienen L. , “Physician Participation in Executions: Time to Eliminate Anonymity Provisions and Protest the Practice,” Annals of Internal Medicine 135 (2001): 922–924.

Editor, “Medical Ethics and Physician Involvement,” Human Rights Watch (2004): at 1, available at <http://www.hrw.org/reports/1994/usdp/8.htm> (last visited December 5, 2005).

Farber N. Davis E. Weiner J. , “Physicians' Attitudes about Involvement in Lethal Injection for Capital Punishment,” Annals of Internal Medicine 160 (2000): 2912–2916.

Welsh J. , “The Death Penalty,” The Lancet 362 [supplement 1] (2003): s24–s25. See also Weiner D. B. , “The Real Dr. Guillotin,” Journal of the American Medical Association 220 (1972): 85–89.

Emanuel and Bienen , supra note 3, at 923.

Welsh , supra note 6, at s24.

Emanuel and Bienen , supra note 3, at 923. “Using a razor-sharp knife to sever the soft tissues of the neck is an ancient method that is, in the era of anatomy and physiology, thought to cause immediate loss of intracerebral pressure and irreversible unconsciousness.” Id.

Curran W. and Casscells W. , “Sounding Board: The Ethics of Medical Participation in Capital Punishment by Intravenous Drug Use,” New England Journal of Medicine 302 (1980): 226–230.

Gordon N. , “The White Coat Passes Like a Shadow in the Execution Chambers,” Humanist 55 (1995): 35–36.

Baum K. , “To Comfort Always: Physician Participation in Executions,” New York University Journal of Legislation & Public Policy 5 (2001): 1–82.

Editorial, supra note 1, at 1361.

Welsh , supra note 6, at s24.

Denno D. W. , “Getting to Death: Are Executions Constitutional?” Iowa Law Review 82 (1997): 319–464. For a more detailed analysis of “botched” executions, see Radelet M. , “Post-Furman Botched Executions,” Death Penalty Information Center (June 30, 2005): 1–8, at <http://www.deathpenaltyinfo.org/article.php?scid=8&did=478> (last visited December 5, 2005).

Baum , supra note 12, at 54.

An Intravenous (IV) catheter is a large-bore needle inserted into a person's veins to facilitate the infusion of liquid into the bloodstream.

Baum , supra note 12, at 54, note 25.

Editor, supra note 4, at 2.

Wolinsky H. , “U.S. Physicians Debate Capital Punishment,” The Lancet 346 (1995): 42–45.

Dorland's Illustrated Dictionary, 27th Edition, Taylor E. J. , ed. (Philadelphia: W. B. Saunder Company, 1988): 768.

Council of Ethical and Judicial Affairs (CEJA), American Medical Association, “Council Report: Physician Participation in Capital Punishment,” Journal of the American Medical Association 270 (1993): 365. It should be noted that at the same time or subsequent to the Council's original report, several other medical associations, including the World Medical Association, the American College of Physicians, the American Public Health Association, the medical societies of Nordic countries (Norway, Finland, Denmark, Iceland and Sweden), the American Psychiatric Association, and the Committee on Bioethical Issues of the Medical Society of the State of New York, also adopted policies which prohibited physician participation in executions.

Council of Ethical and Judicial Affairs, American Medical Association, Code of Medical Ethics: Current Opinions with Annotations, 2004–2005 Edition (Chicago: AMA Press, 2004): 2.06, at 18–19.

Id., at 19.

Id., “The following actions do not constitute physician participation in an execution: (1) testifying as to medical history and diagnoses or mental state as they relate to competence to stand trial, testifying as to relevant medical evidence during trial, testifying as to medical aspects of aggravating or mitigating circumstances during the penalty phase of a capital case, or testifying as to medical diagnoses as they relate to the legal assessment of competence for execution; (2) certifying death, provided that the condemned has been declared dead by another person; (3) witnessing an execution in a totally non-professional capacity; (4) witnessing an execution at the specific voluntary request of the condemned person, provided that the physician observes the execution in a non-professional capacity; (5) relieving the acute suffering of a condemned person while awaiting execution, including providing tranquilizers at the specific voluntary request of the condemned person to help relieve pain or anxiety in anticipation of the execution.” Id.

CEJA Report, supra note 23, at 366.

Barclay L. , “First, Do No Harm: A Newsmaker Interview with Jonathan I. Groner, M.D.” Medscape Medical News (2002): 1–3, at <http://www.medscape.com/viewarticle/445047_print> (last visited December 6, 2005).

Liptak A. , “Should Doctors Help With Executions? No Easy Ethical Answer,” The New York Times, January 10, 2004, available at <http://www.nytimes.com/2004/06/10/national/10death.html?th=&> (last visited December 5, 2005).

Baum , supra note 12, at 77.

Liptak , supra note 29, at 2.

Gordon , supra note 11, at 36.

Farber , supra note 5, at 2912–2916.

Editor, supra note 4, at 1.

Baum , supra note 12, at 58.

Curran and Casscells , supra note 10, at 229.

Mangan J. , “An Historical Analysis of the Principle of Double Effect,” Theological Studies 10 (1949): 41. The principle of double effect specifies four conditions that must be fulfilled for an action with both a good and bad effect to be morally justified. (1) The action, considered by itself and independently of its effects, must not be morally evil. The object of the action must be good or indifferent; (2) the evil effect must not be the means of producing the good effect; (3) the evil effect is sincerely not intended, but merely tolerated; (4) there must be a proportionate reason for performing the action, in spite of the evil consequences. See Kelly G. , Medico-Moral Problems (St. Louis: The Catholic Hospital Association of the United States and Canada, 1958): 13–14.

Baum , supra note 12, at 61.

CEJA Report, supra note 23, at 366.

Purtilo R. , “Conduct, Virtue, and Context in the Professional-Patient Relationship,” in Reich W. , ed., Encyclopedia of Bioethics, rev. ed. (New York: Simon & Schuster and Prentice Hall, 1995): 2096.

Emanuel and Bienen , supra note 3, at 1.

Editor, supra note 4, at 3.

World Medical Association, International Code of Medical Ethics Handbook of Declarations 22 (1985).

Spevick J. , “Physicians as Agents of the State,” American Medical Associations' Virtual Mentor (November 12, 2004): 1–3.

Baum , supra note 12, at 62.

Emanuel and Bienen , supra note 3, at 2.

Koniaris L. G. Zimmers T. A. Lubarsky D. A. , “Inadequate Anaesthesia in Lethal Injection for Execution,” The Lancet 365 (2005): 1412–1414.

Editorial, supra note 1, at 1361.

Id., at 1412. The AVMA specifies that “it is of the utmost importance that personnel performing this technique are trained and knowledgeable in anesthetic techniques, and are competent in assessing anesthetic depth appropriate for administration of potassium chloride intravenously.” Id., at 1414.

Truog R. and Brennan T. , “Sounding Board – Participation of Physicians in Capital Punishment,” The New England Journal of Medicine 329 (October 28, 1993): 1346–1350. See also, Walzer M. Spheres of Justice (New York: Basic Books, 1984) and Brennan T. , Just Doctoring: Medical Ethics in the Liberal State (Berkeley: University of California Press, 1991).

Farber , supra note 5, at 2912–2916.

See Curran and Casscells , supra note 10, at 226–230; Bolsen B. , “Strange Bedfellows: Death Penalty and Medicine,” Journal of the American Medical Association 248 (1982): 518–519; and Entman H. , “First Do No Harm,” Journal of the American Medical Association 261 (1989): 134.

CEJA, supra note 23, at 366–367. See also Rosner F. Halpern A. L. Kark P. R. , “Physician Involvement in Capital Punishment,” New York State Journal of Medicine 91 (1991): 15–18.

CEJA, supra note 23, at 366–367.

Geiderman J. M. , “Ethics Seminars: Physician Complicity in the Holocaust: Historical Review and Reflections on Emergency Medicine in the 21st Century,” Academic Emergency Medicine 9 (2002): 232–240.

Farber , supra note 5, at 2913–2914.

Cochran J. K. Chamlin M. B. Seth M. , “Deterrence or Brutalization? An Impact Assessment of Oklahoma's Return to Capital Punishment,” Criminology 36 (1994): 107–134.

Fagan J. , “Deterrence and the Death Penalty: A Critical Review of New Evidence,” testimony to the New York State Assembly Standing Committee on Codes, Assembly Standing Committee on Judiciary, and Assembly Standing Committee on Correction – Hearings on the Future of Capital Punishment in the State of New York (Albany, NY: January 21, 2005): 1–12, at 2.

Wirt D. Bailey W. Bowers W. , “Physicians' Attitudes about Involvement in Lethal Injection for Capital Punishment,” Archives of Internal Medicine 161 (2001): 1353–1354.

Death Penalty Information Center, Innocence: Freed from Death Row (2005): 1–7 at <http://www.deathpenaltyinfo.org/article.php?scid=6&did=110> (last visited January 3, 2006).

Wirt , supra note 60, at 1354.

CEJA, supra note 24, at 2.06, at 18.

Emanuel and Bienen , supra note 3, at 922.

Baum , supra note 12, at 66. See also American Academy of Physician Assistants, Guidelines for Ethical Conduct for Physician Assistant Profession 8 (adopted May 2000), available at <http://www.aapa.org/gandp/ethical-guidelines.pdf> (last visited January 3, 2006) and American Nurses Association Position Statements: Nurses' Participation in Capital Punishment (July 2001), available at <http://www.nursingworld.org/readroom/position/ethics/etcptl.htm> (last visited December 6, 2005).

Truog and Brennan , supra note 51, at 1349.

Gordon , supra note 11, at 36.