Baze v. Rees

 

Q & A

 

19. What is the position of medical organizations with regard to physician participation in executions?

 

The American Medical Association (AMA) has not taken a position on the death penalty.  However, the AMA’s Code of Ethics (Ethical Guideline E-2-06) prohibits physician participation in executions.  The prohibition is broadly defined and includes advising, assisting, or supervising those who carry out executions and prescribing, preparing, administering or monitoring the administration of the chemicals or monitoring the condition of the inmate during the execution.   The American Society of Anesthesiologists (ASA) has adopted the AMA’s Code of Ethics and Ethical Guideline E-2-06.  However, these prohibitions are not binding on individual physicians.  Neither the AMA nor the ASA has disciplinary authority over physicians who participate in executions.  As a result, physician participation is currently a matter of personal ethics for each individual physician.  Many doctors believe, contrary to the AMA’s position, that it is their ethical duty to participate in executions in order to ensure that they are performed properly.  And some states even have statutes that protect doctors who participate in executions from any licensing consequences as a result of their participation. 

 

There are medical professionals, including anesthesiologists, who have expressed a willingness to participate in executions by lethal injection.  See Amicus Brief of Michael Morales, Michael Taylor, et al., at 7 n. 6 (citing, e.g., David Waisel, Physician Participation in Capital Punishment, 82 Mayo Clinic Proceedings 1073, 1078 (2007) (discussing risks inherent in the three-drug formula and arguing, from the perspective of a physician, that doctors should participate in executions); Atul Gawande, When Law and Ethics Collide – Why Physicians Participate in Executions, 354 New Eng. J. of Med. 1221, 1229 (2006) (reporting reasons why doctors participate in executions and describing interviews with four doctors and one nurse who have participated in at least 45 executions); Neil Farber et al., Physicians’ Willingness to Participate in the Process of Lethal Injection for Capital Punishment, 135 Annals of Internal Med. 884, 884-890 (2001) (reporting that 41% of doctors surveyed would participate in executions and concluding that “[d]espite medical society policies, many physicians would be willing to be involved in the execution of adults”)). 

This willingness to participate is not merely theoretical, as doctors participate to varying degrees in many states’ executions.  Examples include Dr. Doe, who prepared the drugs, inserted the IV, and supervised executions for Missouri and the federal government; doctors who recorded vital signs and declared death in California; doctors who have examined inmates’ veins for IV suitability in Alabama and other states; and doctors such as Dr. Dershwitz who have assisted states in designing or revising their execution protocols.

Despite the states’ demonstrated ability to recruit doctors, lethal injection jurisdictions have been resistant to employing doctors for the crucial task of monitoring anesthetic depth prior to and during the administration of pancuronium and potassium.  Thus, they continue to rely on untrained prison personnel to carry out the complicated three-drug protocol.   See Amicus Brief for Michael Morales, Michael Taylor, et al., at 7-17.

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