By Ty Alper, The New York Times
I am an opponent of the death penalty who believes that capital punishment has always said more about the society that imposes it than the individuals who are subjected to it. What happened Tuesday night in Oklahoma should sicken anyone who believes in the Constitution or even basic notions of human decency. As a lawyer and law professor who represents death row inmates, I can fully appreciate why a doctor would want no part of a process that is designed to kill a human being.
That said, the popular conception that doctors “cannot” participate in executions is simply untrue. They can, and they do. (A doctor was on hand during the botched execution of Clayton Lockett in Oklahoma, but his role in the events remains unclear.) Numerous doctors have participated in hundreds of executions over the past three decades. My research has determined that none has ever been disciplined by a state medical board for participation in an execution, and laws preclude such discipline in most states. Moreover, the ethical guidelines of the American Medical Association are just that – guidelines. The harshest punishment the association could dole out is revocation of A.M.A. membership, which is not much of an enforcement mechanism given that only about 20 percent of doctors are members of the association.
Death row inmates are people who have been sentenced to death, not torture. They are put to death via a procedure that involves dangerous prescription drugs and, often, complicated issues of venous access. Increasingly, executions are being carried out in total secrecy using experimental combinations of drugs, or drugs from unnamed sources.
I agree with those who say that courts should require the participation of competent, qualified medical personnel – including doctors – during such procedures. Good doctors can help ensure that, if an execution is going to be carried out, the individual does not suffer needlessly. We know from experience and research that many doctors are willing to serve in this role, so it is not a question of forcing or even encouraging any particular doctor to participate. Instead, courts should ensure that qualified medical personnel participate, and state medical boards should continue to leave the question of participation to the individual conscience of each physician.