By Andrew Cohen
The editorial board of the Journal of Medical Regulation has awarded Berkeley Law Assistant Professor Ty Alper the Casterline Award for Excellence in Writing for its most outstanding article published over the past year.
Alper, associate director of the law school’s Death Penalty Clinic, published the study in January 2010 in the Federation of State Medical Boards’ Journal of Medical Licensure and Discipline. The first comprehensive review of state laws and regulations on doctors, medical boards, and executions, it found that only seven death-penalty states incorporate the American Medical Association (AMA) ethics code—which bars doctors from participating in executions.
“In fact,” says Alper, “nearly all capital punishment states specifically call for doctors to be involved in some way.” The article, The Role of State Medical Boards in Regulating Physician Participation in Executions, is available here.
Issued in 1980 and last revised in 2000, the AMA policy does allow physicians to certify an inmate’s death after its determination by someone else, and to attend executions in a non-physician role. But the policy also notes that nearly any other death-chamber activity would violate physicians’ obligation to not harm patients.
“Many people, including judges, have this perception that because of the AMA ethical code, doctors can’t and won’t participate in executions,” Alper says. “The reality, which we’ve learned through legal cases that have been brought, is that doctors do participate and are willing to participate. The AMA guidelines are just that, guidelines, and not enforceable in most circumstances.”
Alper’s study was the first to examine the actual legal impact of the AMA guidelines. He found that very few states incorporated the guidelines into their own state medical ethics laws, and that only two explicitly bar doctors from the execution chamber. “In the vast majority of states,” Alper says, “there is no legal or practical impediment to the participation of doctors in executions.”
The issue has gained widespread attention as lawyers representing death-row inmates have alleged nationwide that the three-drug, lethal-injection protocol used in all but two death-penalty states can—if botched—result in cruel and unusual punishment under the Eighth Amendment.
The concern centers on inmates remaining conscious after being insufficiently anesthetized with the first drug while the two paralytic agent drugs are administered, causing excruciating pain invisible to the naked eye. Lawyers have argued that doctors trained in administering and maintaining anesthesia must participate in executions in order to ensure that the anesthetic is properly delivered during the course of the execution.
“I knew the AMA discouraged doctor participation in execution, but I wanted to see whether state medical boards actually had the authority to discipline doctors for participating,” Alper says. After studying the laws in each death penalty state, he found that most states lack the power to enforce violations of the policy.
“This is important,” notes Alper, “because lawyers for death row inmates have argued that doctors need to participate in lethal injections if states are going to insist on using dangerous controlled substances and medical equipment. Courts have dismissed this as an impossibility even though doctors do participate in many ways in executions. This study shows that they don’t realistically face any discipline for doing so.”