Executions, Doctors, The U.S. Supreme Court, And The Breath Of Kings – Health Affairs Blog
by I. Glenn Cohen
"The relationship between medicine and capital punishment has been a persistent feature of this past year in health law, both at the level of medical ethics and Supreme Court review.
Our story starts in Oklahoma, where the execution of Clayton Lockett was botched on April 28, 2014. National Institutes of Health (NIH) bioethicist Seema Shah described the events in question:
Oklahoma was administering a new execution protocol that used the drug midazolam, a sedative that is often used in combination with other anesthetic agents. Oklahoma had never used this drug in executions before; in fact, only a few states had experience with using the drug in lethal injection. Florida had previously used this drug in lethal injections, but with a dose five times higher than what was indicated in Oklahoma’s protocol.
If the execution had gone as planned, Clayton Lockett would have first received midazolam; been declared unconscious, then received vecuronium bromide (a paralytic/neuromuscular blocking agent that would restrict his movements), and finally received potassium chloride (the drug likely to end his life). A few minutes after officially being declared unconscious, Lockett mumbled statements including the word, “Man.” He “began breathing heavily, writhing, clenching his teeth and straining to lift his head off the pillow.”
Prison officials prevented the witnesses from seeing the rest of the proceedings by closing the curtains.
The Department of Corrections then called off the execution and unsuccessfully tried to resuscitate Lockett, and Lockett eventually died of a heart attack more than 45 minutes after the execution began. Although a Department of Corrections official stated that Lockett’s veins “exploded,” an autopsy examination performed by a forensic pathologist hired by death row inmates appears to contradict official reports. This report concluded that even though prison officials decided to inject the drugs into Lockett’s femoral vein (which is a more difficult and risky procedure), Lockett’s surface and deep veins had “excellent integrity.”
Another execution that was scheduled to occur that same night has now been stayed for six months, pending an investigation into Mr. Lockett’s execution.
On July 23, 2014, Arizona encountered a problem with the same drug in the execution of Joseph Wood, wherein the condemned inmate allegedly gasped for almost two hours before dying.
The executions have prompted two important but different kinds of responses. In this post I write about the role of medical ethics and the U.S. Supreme Court’s response.
In an opinion from 1994, dissenting from the denial of certiorari in the death penalty case of Callins v. Collins, Justice Harry Blackmun famously wrote, “From this day forward, I no longer shall tinker with the machinery of death,” and concluded that he was instead “obligated simply to concede that the death penalty experiment has failed.”
Two decades later, in May 2014, shortly after the botched Oklahoma execution, Bob Truog, Mark Rockoff, and I argued in The Journal of the American Medical Association (JAMA) that physicians should take a similar position: that they should no longer tinker with the machinery of death and avoid participation in executions altogether. Our argument received significant discussion in the media, on Rachel Maddow’s MSNBC show, and elsewhere. We hope it will prompt further changes.
In our article, we advance several reasons why physician involvement in execution is problematic. This involvement co-opts the medical profession in a problematic way: “History is replete with examples of efforts by governments to co-opt the power and status of the medical profession for state purposes that are not aligned with the goals of medicine. For example, physicians have engaged in interrogations involving torture, at least in part because the skills and knowledge of these professionals enables them to maximize the prisoner’s temporary pain and suffering while minimizing the risk of permanent disability or death.”
It also medicalizes retribution. That is, “[e]xecution is, intrinsically, the involuntary taking of the life of another human being, an act that can never be aligned with the goals of medicine. Regardless of whether execution is justified—and there are those who contend that in some circumstances capital punishment may be—it must never be perceived as a medical procedure. By playing on the imagery of a scene that is almost indistinguishable from the everyday practice of anesthesiologists when they ‘put a patient to sleep,’ there is an attempt to cover the procedure with a patina of respectability and compassion that is associated with the practice of medicine.”
In this respect (and now I am speaking only for myself not my co-authors), this is a kind of kabuki theater. It would be far better to go to what we instinctively view as more barbaric methods, for example, the firing squad, that are decidedly non-medical, if we could ensure painless death. The patina of medicine helps us avoid confrontation with the barbarism of what we are doing, killing someone against their protestation."
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