In 2006, the Supreme Court ruled that death row inmates could challenge methods of execution as violating the Eighth Amendment to the Constitution, which prohibits cruel and unusual punishment. Since then, a number of suits have alleged that states’ lethal injection procedures were needlessly cruel or improperly administered. This week, the Supreme Court will hear arguments in a case brought on behalf of a group of Oklahoma death-row inmates, which alleges that the state’s use of the sedative midazolam is unconstitutional.


rubenstein1-100x100Leonard Rubenstein is a lawyer whose work focuses on health and human rights, including the problem of “dual loyalty,” where professional ethical obligations may conflict with requirements imposed by governments. He’s a core faculty member of the Berman Institute of Bioethics with a joint appointment in the Johns Hopkins Bloomberg School of Public Health, where he is Director of the Program on Human Rights, Health and Conflict, at the Center for Public Health and Human Rights. Here, he answers our questions about the ethics of lethal injection.


To what extent is it ethical for physicians to participate in the execution of prisoners?


There is a broad consensus in medicine that any form of participation in executions violates duties to refrain from using professional skills to inflict harm and to preserve life where there is hope for doing so. The consensus is reflected in ethical standards issued by all major medical organizations in the United States, including the American Medical Association, the American College of Physicians and the American Board of Anesthesiology. An anesthesiologist who participates in executions is subject to revocation of board certification.


There remain dissenters from this consensus among some physicians, bioethicists and lawyers involved in death penalty cases. They have advanced two principal arguments for participation: asserting that it is a form of compassion for someone who is bound to die and analogizing lethal injection in death penalty cases to assisted suicide.


The argument from compassion is most frequently invoked. It claims that non-participation is not going to prevent the execution, and refusal to assist irresponsibly increases the likelihood that the inmate will experience suffering during execution because of the administration of lethal drugs by medically unqualified people – exemplified by severe pain during botched executions. The problem is that the suffering ameliorated is only in the execution process itself; by participating the physician remains implicated in the involuntary ending of life, a harm a physician is committed to avoid.   Further, the visibility of a physician working side by side with an execution potentially imposes independent harm on the prisoner.


Another claim is that medical ethics do not prohibit interventions to hasten death, citing medically assisted suicide. Proponents of course recognize that a person who seeks to end his or her life, so long as competent and un-coerced, engages in a voluntary act. They argue, however, that consent is not morally required so long as the sentence is lawful and due process has been observed, just as an attacker may be legitimately subjected to harm by the person defending himself from the attack. Putting aside well-known problem of arbitrariness and discrimination in capital trials and sentencing, however, conviction does not, and should not result, in a waiver of rights to consent to medical interventions.



How do arguments about physician participation relate to concerns about the morality of the death penalty as administered in the United States?


Medical associations have opposed physician participation in capital punishment without taking a position on the morality of the death penalty, as physicians’ obligations not to harm and to preserve life are not affected by whether a procedure is legal or moral. In another example, there is no question that interrogations by police or intelligence agencies may well be lawful, but medical organizations have nevertheless found participation ethically inappropriate because even lawful methods may lead to stress, anxiety or other harms on the subject.


Many opponents of physician participation in execution, however, oppose the death penalty on the ground that the state should never take life as a punishment for crime. Others cite the fact that the administration of the death penalty in the United States is so fraught with error, arbitrariness and racism that it should be abolished. Physician participation implicates them in these injustices. By contrast, non-participation could possibly hasten the end of death penalty.



If physicians cannot participate, what happens to the death penalty?


The Supreme Court decided in Baze v. Rees that lethal injection may proceed even without physician participation. In the new case, Glossip v. Gross, the Court will decide whether the three-drug execution protocol now used amounts to cruel and unusual punishment if the first drug cannot reliably render the prisoner unconscious so as to avoid experiencing the severe pain otherwise resulting from the use of the two drugs used to kill.


If the Court rules that the protocol does violate the Eighth Amendment’s ban, the death penalty itself would not end, but the future of lethal injection would be in great doubt and states would have to find some other way of performing the execution. Some of these methods, however, such as the gas chamber and electrocution, have been found by courts to constitute cruel and unusual punishment.



Pharmaceutical companies have made it increasingly difficult for prison officials to obtain the drugs they use for lethal injections. Companies based in countries that have banned the death penalty have refused to sell their products for this purpose. Even companies based in the US have refused for fear of sanctions from their European consumers. Is it appropriate for pharmaceutical companies to control how their drugs are used in this way?


Corporations are legitimately subject to citizens’ demands not to sell products they consider objectionable, whether tobacco, foods with high fructose corn syrup, or, for that matter, contraceptives. Corporations may have moral, political or business reasons to accede or not to accede to these demands, and may be judged by their response. Given the evidence of botched executions and pain and suffering in lethal injections, the arbitrariness of the death penalty in the United States and near universal opposition to the death penalty outside the United States, it is entirely appropriate for manufacturers to refuse to sell drugs for use in executions.

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Leonard Rubenstein
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