Physician Participation in Executions,the Morality of Capital Punishment,and the Practical Implications of Their Relationship

Alper T. , “The Role of State Medical Boards in Regulating Physician Participation in Executions,” Journal of Medical Licensure & Discipline 95, no. 3 (2009): 16–26. See also Morales v. Hickman, 415 F. Supp. 2d 1037 (N.D. Cal. 2006), aff'd per curiam, 438 F.3d 926 (9th Cir. 2006), cert. denied, 546 U.S. 1163 (2006) (holding that California may proceed with execution only if it eliminates the second and third drugs or involves a “person with formal training and experience in the field of general anesthesia”); Taylor v. Crawford, 487 F.3d 1072 (8th Cir. 2007) (vacating district court's order requiring Missouri Department of Corrections to adopt protocol calling for participation of a board-certified anesthesiologist).

In Baze v. Rees, the Court upheld Kentucky's lethal injection protocol against a constitutional challenge. Baze, 553 U.S. at 35. One argument submitted by petitioners was that the execution protocol must direct qualified personnel to assess the condemned inmate's consciousness after delivery of the anesthetic with monitoring equipment, such as a Bispectral Index (BIS) monitor or blood pressure cuff. Id., at 58–59. In rejecting that claim, the plurality opinion states that the “asserted need for a professional anesthesiologist to interpret the BIS monitor readings is nothing more than an argument against the entire procedure, given that both Kentucky law and the American Society for Anesthesiologists' own ethical guidelines prohibit anesthesiologists from participating in capital punishment.” Id., at 59–60 (citations omitted). In addition, Justice Alito's concurrence, not joined by any colleague, rejects the possibility of constitutionally requiring participation of a physician or any other medical health professional whose professional ethics prohibits such participation. Id., at 66 ( Alito J. , concurring).

Waisel D. , “Physician Participation in Capital Punishment,” Mayo Clinic Proceedings 82, no. 9 (2007): 1073–1080, at 1079.

Bloche M. G. , The Hippocratic Myth (New York: Palgrave MacMillan, 2011): at 7, 10; Bloche M. G. , “Clinical Loyalties and the Social Purposes of Medicine,” JAMA 281, no. 3 (1999): 268–274, at 270.

Sen P. , “Ethical Dilemmas in Forensic Psychiatry: Two Illustrative Cases,” Journal of Medical Ethics 33, no. 6 (2007): 337–341 (noting that in contrast to the traditional clinical setting, it is a “given” in the forensic psychiatric setting that third parties have a claim within the doctor-patient relationship); Adshead G. , “Care or Custody? Ethical Dilemmas in Forensic Psychiatry,” Journal of Medical Ethics 26, no. 5 (2000): 302–304 (describing other ethical dilemmas as well, such as prescribing medications to reduce a patient's risk of violence to others even when the drug causes him harm).

See infra text accompanying notes 89–96.

Bloche M. G. and Marks J. H. , “When Doctors Go to War,” New England Journal of Medicine 352, no. 1 (2005): 3–6.

See, e.g., Ky. Rev. Stat. Ann. § 431.220(1)(b) (year) (stating that prisoners sentenced to death before March 31, 1998 shall choose lethal injection or electrocution).

See, e.g., Cal. Penal Code § 3604 (West year) (giving persons sentenced to death the “opportunity to elect to have the punishment imposed by lethal gas or lethal injection”).

See, e.g., Okl. Stat. Ann. tit. 22 § 1014 (West year) (authorizing electrocution if lethal injection is “held unconstitutional by an appellate court of competent jurisdiction,” and by firing squad if both lethal injection and electrocution are deemed unconstitutional).

he protocol described here is Missouri's. Missouri Department of Corrections, Preparation and Administration of Chemicals for Lethal Injection (on file with author).

Id. See also Baze, 553 U.S. at 45 (describing Kentucky's execution protocol).

Sodium thiopental has been the drug used by states since the death penalty was reinstated in the 1970s. However, recently some states, including Texas, Virginia, and Oklahoma, have replaced sodium thiopental with pentobarbital because thiopental's sole U.S. manufacturer, Hospira, decided to cease its production. Koppel N. , “Drug Halt Hinders Executions in the U.S.,” Wall Street Journal, January 22, 2011, at A1; Koppel N. , “Texas Adopts Animal Drug for Executions,” Wall Street Journal, March 17, 2011; Wu J. Q. , “Virginia's Death Row Prepares for First Lethal Injection Using New Drug Mix,” Washington Post, August 17, 2011.

Alper T. , “The Truth about Physician Participation in Lethal Injection Executions,” North Carolina Law Review 88, no. 1 (2009): 11–69, at 20. See, e.g., Taylor v. Crawford, 487 F.3d 1072, 1084 (8th Cir. 2007).

Baze v. Rees, 553 U.S. 35, 53 (2008).

Brief for Petitioners at 12, Baze v. Rees, 553 U.S. 35 (2008) (No. 07-5439), 2007 WL 3307732.

Baze v. Rees, No. 07-5439, 2007 WL 4790797, app. at 472–73 (Testimony of Heath Mark Dr. ).

Morales v. Tilton, 465 F. Supp.2d 972, 980 (N.D.Cal. 2006).

Id.

Zimmers T. A. , “Lethal Injection for Execution: Chemical Asphyxiation?” PLoS Medicine 4, no. 4 (2007): e156. doi:10.1371/journal.pmed.0040156.

Brief for Petitioners at 13, Baze v. Rees, 553 U.S. 35 (2008) (No. 07-5439), 2007 WL 3307732.

Brief for Petitioners at 13, Baze v. Rees, 553 U.S. 35 (2008) (No. 07-5439), 2007 WL 3307732.

Martelli M. E. , “Intravenous Medication Administration,” Gale Encyclopedia of Nursing and Allied Health, 2002, available at <http://www.healthline.com/galecontent/intravenous-medication-administration> (last visited February 25, 2013).

Brief for Petitioners at 16–17, Baze v. Rees, 553 U.S. 35 (2008) (No. 07-5439), 2007 WL 3307732.

Baze v. Rees, 553 U.S. 35, 119 n.4 (2008) ( Ginburg J. , dissenting).

See, e.g., Waisel , supra note 3, at 1074–1075.

Baze v. Rees, 553 U.S. 35, 64 (2008) ( Alito J. , concurring).

See Death Penalty Information Center, “State by State Lethal Injection,” available at <http://www.deathpenaltyinfo.org/state-lethal-injection> (last visited February 25, 2013).

Id.

American Medical Association Council on Ethical and Judicial Affairs, “Physician Participation in Capital Punishment,” JAMA 270, no. 3 (1993): 365–68, at 368; American Medical Association, Code of Ethics, E-2.06 (2005), available at <http://www.law.berkeley.edu/clinics/dpclinic/LethalInjection/LI/QA/docs/AMA> (last visited February 25, 2013); World Medical Association General Assembly, “WMA Resolution on Physician Participation in Capital Punishment,” 2008, available at <http://www.wma.net/en/30publications/10policies/c1/index.html> (last visited February 25, 2013) (affirming same position taken by the assembly in 1981 and 2000); L. Snyder for the American College of Physicians Ethics, Professionalism, and Human Rights Committee, American College of Physicians Ethics Manual 6th Edition, Annals of Internal Medicine 156, no. 1 (part 2) (2012): 73–101, at 90; Participation of Health Professionals in Capital Punishment: Policy no. 200125, American Public Health Association, January 1, 2001, <http://www.apha.org/advocacy/policy/policysearch/default.htm?id=264> (last visited February 25, 2013); “Anesthesiologists Advised to Avoid Lethal Injection,” Death Penalty Information Center (July 2, 2006), available at <http://www.deathpenaltyinfo.org/node/297> (last visited February 25, 2013) (citing Message from Guidry Orin F. , President, American Society of Anesthesiologists, “Observations Regarding Lethal Injection,” June 30, 2006).

“Position Statement: Nurses' Role in Capital Punishment,” American Nurses Association, January 28, 2010, available at <http://gm6.nursingworld.org/MainMenuCategories/Policy-Advocacy/Positions-and-Resolutions/ANAPositionStatements/Position-Statements-Alphabetically/prtetcptl14447.pdf> (last visited February 25, 2013); American Academy of Physician Assistants, “Guidelines for Ethical Conduct for the Physician Assistant Profession,” available at <http://www.aapa.org/uploadedFiles/content/Common/Files/19-Ethical-Conduct.doc> (last visited February 25, 2013); National Association of Emergency Medical Technicians, “NAEMT Position Statement: EMT or Paramedic Participation in Capital Punishment,” adopted January 26, 2010, available at <http://www.naemt.org/Libraries/Advocacy%20Documents/1-26-10%20EMT%20or%20Paramedic%20Participation%20in%20Capital%20Punishment.sflb> (last visited February 25, 2013).

See AMA Council on Ethical and Judicial Affairs, supra note 30.

Denno D.W. , “The Lethal Injection Quandary: How Medicine Has Dismantled the Death Penalty,” Fordham Law Review 76, no. 1 (2007): 49–124, at 88–89.

Id., at 88–89.

Id.

Zimmers T. A. and Lubarsky D. A. , “Physician Participation in Lethal Injection Executions,” Current Opinion in Anaesthesiology 20, no. 2 (2007): 147–151.

In addition, empirical research published at the beginning of last decade asked physicians about eight actions prohibited by the AMA's ethical stance. The research revealed that a majority of doctors surveyed found it acceptable for a physician to engage in most of those actions. Thirty-four percent found all eight acceptable. Farber N. , “Physicians' Attitudes about Involvement in Lethal Injection for Capital Punishment,” Archives of Internal Medicine 160, no. 19 (2000): 2912–2916. In another study, forty-one percent of physicians surveyed said they would perform at least one of the actions prohibited by the AMA code. Farber N. J. , “Physicians' Willingness to Participate in the Process of Lethal Injection for Capital Punishment,” Annals of Internal Medicine 135, no. 10 (2001): 884–888.

Clemons v. Crawford, No. 07-4129-CV-C-FJG, 2008 WL2783233, at *1 (W.D. Mo. 2008); Rizzo T. , “Anesthesiologist Joins Missouri's Execution Team, Violating Ethical Guidelines,” Kansas City Star, May 24, 2008.

Arthur v. Thomas, Case no: 2:11-cv-438-MEF-TFM, Defendant's Motion to Dismiss and, in the Alternative, Motion for Summary Judgment, Exhibit E (Affidavit of Warden Anthony Patterson) (August 15, 2011).

Gawande A. , “When Law and Ethics Collide – Why Physicians Participate in Executions,” New England Journal of Medicine 354, no. 12 (2006): 1221–1229; see also Groner J. I. , “Lethal Injection: A Stain on the Face of Medicine,” British Medical Journal 325, no. 7371 (2002): 1026–1028 (reporting that after a nurse failed in trying to insert a peripheral IV line into the condemned, a physician inserted a central venous catheter into the prisoner's subclavian vein).

Mazzei P. , “Doctors Testify on New Use of Drug in Florida's Lethal Injections,” Miami Herald, August 3, 2011; see also Arthur v. Thomas, supra note 39, at Exhibit D.

See AMA, “Code of Ethics,” supra note 30. See also Lanier W. L. and Berge K. H. , “In Reply,” Mayo Clinic Proceedings 83, no. 1 (2008): 122–123 (2008) (noting that after writing on physician participation, they had been contacted by two physicians, “both self-identified as board-certified specialists,” who admitted participation).

See AMA Council on Ethical and Judicial Affairs, supra note 30.

American College of Physicians et al., Breach of Trust, 1994. See also State v. Deputy, 644 A.2d 411 (De. Super. 1994) (“… the official statement which explains these organizations' position does not cite opposition to the death penalty as the basis for their position.”).

See Id. (Breach of Trust), at 1.

Guidry O. F. , “Message from the President: Observations Regarding Lethal Injection,” June 30, 2006, available at <http://www.yesmagazine.org/issues/go-local/1561> (last visited February 28, 2013).

Truog R. D. and Brennan T. A. , “Participation of Physicians in Capital Punishment,” New England Journal of Medicine 329, no. 18 (1993): 1346–1350, at 1348.

See Waisel , supra note 3, at 1073.

Nelson L. and Ashby B. , “Rethinking the Ethics of Physician Participation in Lethal Injection Execution,” Hastings Center Report 41, no. 3 (2011): 28–37, at 29.

Veatch R. M. , “The Impossibility of a Morality Internal to Medicine,” Journal of Medicine and Philosophy 26, no. 6 (2001): 621–642, at 634.

Caplan A. L. , “Should Physicians Participate in Capital Punishment?” Mayo Clinic Proceedings 82, no. 10 (2007): 1047–1048 (“Despite the possible cost of suffering to individuals who undergo crude modes of or a poorly administered execution, physician involvement in moderating suffering in the final minutes of the lives of the condemned is too high a price for medicine to bear relative to the harms caused by legitimizing the practice of execution through physician involvement.”).

World Medical Association, Handbook of Declarations (1985): at 22 (quoted in Clark P. A. , “Physician Participation in Executions: Care Giver or Executioner?” Journal of Law, Medicine & Ethics 34, no. 1 (2006): 95–104, at 99.

See Clark (id.), at 99.

Jones W. C. , “Anti-Death-Penalty Group Files Complaint Against Execution Doctor,” Bluffton News, June 20, 2011, available at <http://www.blufftontoday.com/bluffton-news/2011-06-21/anti-death-penalty-group-files-complaint-against-execution-doctor> (last visited February 25, 2013).

See Gawande , supra note 40.

An analogous conflict could arise for physicians where punishments include torture. Physicians, like everyone else, have a prima facie obligation not to inflict torture on anyone. But, as Lepora and Millum persuasively point out, the ethics of physician participation in such cruel punishment is not always clear. Lepora C. and Millum J. , “The Tortured Patient: A Medical Dilemma,” Hastings Center Report 41, no. 3 (2011): 38–47, at 40.

Black L. and Fairbrother H. , “The Ethics of the Elephant: Why Physician Participation in Executions Remains Unethical,” American Journal of Bioethics 8, no. 10 (2008): 59–61, 61.

See AMA Council of Judicial and Ethical Affairs, supra note 30. Peter Clark endorses these arguments, claiming that they “negate” the pro-physician-participation arguments. See Clark , supra note 53, at 99.

Black and Fairbrother argue that it is wrong for a physician to directly cause another's death. The notion of a “direct” cause will fail to resolve these ethical matters for the same reasons, given above, why the notion of “primary cause” will fail.

Dressler J. , Understanding Criminal Law, 5th ed. (Newark, NJ: Matthew Bender & Co., Inc., 2009): at 189. Street T. A. , The Foundations of Legal Liability, vol. I (Long Island, NY: Edward Thompson Co., 1906): at 110 (quoted in Epstein R. A. , Cases and Materials on Torts 8th ed. (New York: Aspen Publishers, 2004): at 436 (“[Proximate causation] is always to be determined on the facts of each case upon mixed considerations of logic, common sense, justice, policy, and precedent.”).

See Bloche M. G. , “Clinical Loyalties and the Social Purposes of Medicine,” JAMA 281, no. 3 (1999): 268–274 (discussing the view of the AMA's Council on Ethical and Judicial Affairs regarding psychiatry and death row inmates).

See Denno , supra note 33, at 69 (citing Chapman A. J. , “Lethal Injections Not Practice of Medicine,” American Medical News, April 22–29, 1991, at 45).

See Bloche and Marks , supra note 7, at 3. Paul Appelbaum made a similar argument with respect to forensic psychiatry. Appelbaum P. S. , “The Parable of the Forensic Psychiatrist: Ethics and the Problem of Doing Harm,” International Journal of Law and Psychiatry 13, no. 4 (1990): 249–259, at 258.

See Breach of Trust, supra note 44, at 3.

Emanuel L. L. and Bienen L. B. , “Physician Participation in Executions: Time to Eliminate Anonymity Provisions and Protest the Practice,” Annals of Internal Medicine 135, no. 10 (2001): 922–924, at 923.

See Truog and Brennan , supra note 47, at 1348.

See Bloche and Marks , supra note 7, at 5 (discussing physicians involved in military interrogations).

Pellegrino E. D. , “The Internal Morality of Medicine: A Paradigm for the Ethics of the Helping and Healing Professions,” Journal of Medicine and Philosophy 26, no. 6 (2001): 559–579, at 566.

Id., at 566.

Pellegrino E. D. , “Societal Duty and Moral Complicity: The Physician's Dilemma of Divided Loyalty,” International Journal of Law and Psychiatry 16, No. 3-4 (1993): 371–391, at 376.

Black L. and Fairbrother H. , supra note 57 at 60.

Arras J. , “A Method in Search of a Purpose: The Internal Morality of Medicine,” Journal of Medicine and Philosophy 26, no. 6 (2001): 643–662; see Lepora and Millum , supra note 56.

Id. (Arras).

See Lepora and Millum , supra note 56, at 44.

For an excellent discussion, see Bloche , The Hippocratic Myth, supra note 4.

Appelbaum P. S. , “False Hopes and Best Data: Consent to Research and the Therapeutic Misconception,” Hastings Center Report 17, no. 2 (1987): 20–24, at 20 (describing the therapeutic misconception); Miller F. G. and Rosenstein D. L. , “The Therapeutic Orientation to Clinical Trials,” New England Journal of Medicine 348, no. 14 (2003): 1383–1386, at 1383–84 (describing how the setting of medical research, with its similarity to the clinical setting, “may make it especially difficult to appreciate how clinical trials differ from personalized medical care”).

See, e.g., State v. Nelson, 803 A.2d 1, 15 (N.J. 2002) (reporting testimony of Sadoff Robert Dr. , in conflict with more favorable testimony of defendant's psychiatrist).

Pellegrino E. D. , “The Moral Foundations of the Patient-Physician Relationship: The Essence of Medical Ethics,” in Pellegrino E. D. , eds., Military Medical Ethics, vol. I (Washington, D.C.: Office of the Surgeon General at TMM Publications, 2004): 3–22, at 10 (stating that coherence theories based on commonly accepted moral beliefs and principles cannot provide the foundation for medical ethics).

Id., at 10 (stating that deontological, utilitarian, and virtue-centered moral theories cannot provide a foundation for medical ethics because they “leave a gap between ethical theory and the realities of the moral world of physician and patient”).

See Pellegrino , supra note 68, at 560. See Arras , supra note 72, at 645 (attributing to Pellegrino an “essentialist” view, “according to which a morality for medicine is derived from reflection on its ‘proper’ nature, goals or ends”).

See Pellegrino , supra note 78, at 13.

See Truog and Brennan T.A. , supra note 47.

See Pellegrino , supra note 70, at 376.

Wendler D. , “Are Physicians Obligated Always To Act in the Patient's Best Interests?” Journal of Medical Ethics 36, no. 2 (2010): 66–70, at 67. See Bloche , supra note 4, at 10.

Gottlieb T. and Nimmo G. R. , “Antibiotic Resistance is an Emerging Threat to Public Health: An Urgent Call to Action at the Antimicrobial Resistance Summit 2011,” Medical Journal of Australia 194, no. 6 (2011): 281–283.; see Bloche (Clinical Loyalties and the Social Purposes of Medicine), supra note 4, at 268.

See, e.g., Tarasoff v. Regents of the University of California, 17 Cal. 3d 425 (1976); Leeman C. P. Cohen M. A. , and Parkas V. , “Should a Psychiatrist Report a Bus Driver's Alcohol and Drug Abuse? An Ethical Dilemma,” General Hospital Psychiatry 23, no. 6 (2001): 333–336.

Benatar S. R. and Upshur R. E. G. , “Dual Loyalty of Physicians in Military and Civilian Life,” American Journal of Public Health 98, no. 12 (2008): 2161–2167.

See Wendler , supra note 84, at 67.

45 C.F.R. § 46.102(d) (2007) (“Research means a systematic investigation, including research development, testing and evaluation, designed to develop or contribute to generalizable knowledge.”). Emanuel E. J. , “Scandals and Tragedies of Research with Human Participants: Nuremberg, the Jewish Chronic Disease Hospital, Beecher, and Tuskegee,” in Emanuel E. J. , eds., Ethical and Regulatory Aspects of Clinical Research: Readings and Commentary (Baltimore, MD: Johns Hopkins University Press, 2003).

Miller F. G. and Brody H. , “What Makes Placebo-Controlled Trials Unethical?” American Journal of Bioethics 2, no. 2 (2002): 3–9, at 4. Lemmens T. and Miller P. B. , “Avoiding a Jekyll-and-Hyde Approach to the Ethics of Clinical Research and Practice,” American Journal of Bioethics 2, no. 2 (2002): At 14.

Coleman C. , “Duties to Subjects in Clinical Research,” Vanderbilt Law Review 58, no. 2 (2005): 387–452, at 398. Berg J. W. , Informed Consent: Legal Theory and Clinical Practice, 2d ed. (New York, NY: Oxford University Press, 2001): At 282.

Id.

See Coleman , supra note 91, at 399. Chen D. T. , “Clinical Research and the Physician-Patient Relationship,” Annals of Internal Medicine 138, no. 8 (2003): 669–672, at 669.

45 C.F.R. § 46.111(a)(2) (1991).

The discussion here tracks many of the arguments provided in Litton P. and Miller F. G. , “A Normative Justification for Distinguishing the Ethics of Clinical Research from the Ethics of Medical Care,” Journal of Law, Medicine & Ethics 33, no. 3 (2005): 566–574. See also Litton P. and Miller F. G. , “What Do Physician-Investigators Owe Patients Who Participate in Research,” JAMA 304, no. 13 (2010): 1491–1492.

The obligations listed are helpfully articulated and discussed in Emanuel E. J. Wendler D. , and Grady C. , “What Makes Clinical Research Ethical?” JAMA 283, no. 20 (2000): 2701–2711. See Litton and Miller , supra note 95, at 569.

See Gregg v. Georgia, 428 U.S. 153, 183 (1976) (plurality opinion) (“The death penalty is said to serve two principal social purposes: retribution and deterrence of capital crimes by prospective offenders.”).

Groner J. , “Lethal Injection and the Medicalization of Capital Punishment in the United States,” Health and Human Rights 6, no. 1 (2002): 64–79, at 73.

Id.

Id., at 73 (citing Himaka M. , “Judge Sentences David Lucas to Die for Three Murders,” San Diego Union Tribune, September 20, 1989, at sec. B-d); see also Welborn L. , “Before Sentenced to Death, Home Depot Killer Shouts: ‘I'm Innocent,’” Orange County Register, November 29, 2011, 6:34 AM, http://www.ocregister.com/articles/richardson-328969-egan-death.html.

Groner J. , supra note 98, at 73,.

Id., at 73–74. See also Lerman D. L. , “Second Opinion: Inconsistent Deference to Medical Ethics in Death Penalty Jurisprudence,” Georgetown Law Journal 95, no. 6 (2007): 1941–1978, at 1946–1947.

See Bloche , The Hippocratic Myth, supra note 4, at 9.

Traditionally, criminal law professors teach first-year law students that motive is irrelevant to criminal liability. However, Carissa Byrne Hessick persuasively demonstrates that motive is relevant to the elements of a number of crimes and to sentencing decisions, in addition to being morally relevant to blameworthiness. Hessick C. B. , “Motive's Role in Criminal Punishment,” Southern California Law Review 80, no. 1 (2006): 89–150.

Id. See Dressler , supra note 60, at 263 (discussing one defendant who intentionally killed his dying father to fulfill a promise and a defendant who unintentionally killed his child through repetitive severe abuse). See State v. Forrest, 362 S.E.2d 252 (N.C. 1987); Midgett v. State, 729 S.W.2d 410 (Ark. 1987).

See Hessick , supra note 104.

See Dressler , supra note 60, at 475; Dressler J. , “Reassessing the Theoretical Underpinnings of Accomplice Liability: New Solutions to an Old Problem,” Hastings Law Journal 37, no. 1 (1985): 91–140, at 102 (“The most trivial assistance is sufficient basis to render the secondary actor accountable for the actions of the primary actor.”).

See Dressler , Understanding, supra note 60, at 474 (citing State v. Doody, 434 A.2d 523 (Me. 1981) and Hicks v. State, 150 U.S. 442 (1893)).

Caplan A. , supra note 51.

See Dressler , supra note 60, at 476; Dressler J. (“Reassessing the Theoretical Underpinnings”), supra note 107, at 102.

Baum K. , “‘To Comfort Always’: Physician Participation in Executions,” New York University Journal of Legislation and Public Policy 5, no. 1 (2001–2002): 47–82, at 64.

Id.

Id.

Id.

United Nations, “Principles of Medical Ethics, Resolution 37/194,” Article 3, Resolution 37 (1982).

Furman v. Georgia, 408 U.S. 238, 257–306 (1972) ( Brennan J. , concurring); Furman v. Georgia, 408 U.S. 238, 314–71 (1972) ( Marshall J. , concurring).

See, e.g., Groner , supra, note 98, at 69–71.

Freedman A. M. and Halpern A. L. , “The Erosion of Ethics and Morality in Medicine: Physician Participation in Legal Executions in the United States,” New York Law School Law Review 41, no. 1 (1996): 169–188, at 187.

See Baum , supra note 111, at 70–71.

Id.

Baum states that the arbitrariness in the distribution of the death penalty is problematic. His point is that this moral problem, along with any other moral problem of the American death penalty, does not make the practice the moral equivalent of the Nazi atrocities. But again, arguing that the system is not as evil as the Nazi practices fails to show that the death penalty is not sufficiently unjust and evil as to morally require doctors to refuse to lend their services.

Id., at 72.

See Veatch , supra note 50, at 634–35.

Guidry O. F. , supra note 46. Groner argues similarly to Guidry, but with respect to all physicians: “When doctors enter the death chamber, they harm not only their relationship with their own patients but the relationships of all doctors with their patients.” Groner , “Lethal Injection: A Stain on the Face of Medicine,” supra note 40, at 1028. See also Lerman , supra note 102, at 1946.

See Bloche and Marks J.H. , supra note 7, at 5.

Black L. and Fairbrother H. , supra note 57, at 60.

Cook R. J. and Dickens B. M. , “Hymen Reconstruction: Ethical and Legal Issues,” International Journal of Gynecology & Obstretrics 107, no. 3 (2009): 266–269, at 267.

Id.

Id., at 268.

Alper , supra note 1.

For example, let's say punishment is justified on retributive grounds; the death penalty achieves more retributive justice than life-without-parole when applicable; but moral costs (e.g., racial discrimination in application) and financial costs slightly outweigh its contribution to retributive justice.

Perhaps no one deserves death, the death penalty deters no one, and it even causes more murders because it normalizes revenge.

American Medical Association, “AMA Member Benefits,” available at <http://www.ama-assn.org/ama/pub/membership/membership-benefits.page?> (last visited February 26, 2013).

American Medical Association, “AMA Advocacy News,” available at <http://www.ama-assn.org/ama/pub/advocacy.page?> (last visited February 26, 2013).

Orentlicher D. , “The Influence of a Professional Organization on Physician Behavior,” Albany Law Review 57, no. 3 (1994): 583–606, at 584–591.

Cf. Lepora and Millum , supra note 56, at 45 (stating that ethical bans on physician participation in torture “constitute a powerful condemnation of torture”).

Id., at 45 (ethical bans on physician participation in torture in interrogation settings “provide a defense for doctors who… should be able to cite binding rules that forbid them from being involved”).