Botched executions are in the news again.
The vast majority of states that allow for state sanctioned death penalty perform the execution via a three drug protocol.
The first drug is an anesthetic – such as propofol or a barbiturate.
The second drug is a neuromuscular paralytic agent.
The final drug is designed to stop the inmate’s heart (typically a solution of KCl).
If an inmate is not properly anesthetized, the second and third drugs cause conscious suffocation and intractable pain. States do not dispute the argument that an unanesthetized inmate exposed only to the second and third drugs in the three drug protocol would constitute Cruel and Unusual Punishment under the 8th Amendment.
Accordingly, lawyers for death row inmates have taken the position that states using the three drug protocol must employ the services of trained medical personnel for anesthesia. If states do not want to use the three drug protocol, the lawyers argue, they must use a different protocol.
The American Medical Association and the American Society of Anesthesiologists embrace the position that physician participation in state sanctioned executions is unethical. Even the Society of Correctional Physicians have opined the “the correctional health professional shall … not be involved in any aspect of execution of the death penalty.” The most a voluntary professional organizations could do to enforce its code of ethics would be to sanction the doctor. But, the doctor would still have a license to practice medicine.
Some anti-death penalty advocates have pushed various Boards of Medicine to discipline doctors who participate in executions. If these advocates had succeeded, participating doctors could have lost their license and be unable to practice medicine. In 2005, Dr. Arthur Zitrin filed a claim with the Georgia State Board of Composite Examiners. The Board refused to open an investigation. Zitrin then sued in state court, seeking a declaratory judgment that Georgia prohibit physicians from participating in public executions. The trial judge shut the case down quickly. He asked the attorney for Dr. Zitrin:”How many Georgia physicians belong to the AMA? I’d say less than a half. And you want to incorporate an ethical opinion from the AMA into Georgia law?” The case was appealed and the outcome was affirmed. The result “guarantee[d] that no physician [in Georgia] will be subject to disciplinary proceedings as a result of his or her participation in an execution.”
In California, state law authorized physician participation in executions. Nonetheless, in 1996, a group of doctors sued the state hoping for a declaration that physicians participating in such executions lose their licenses under state law. The appellate court ruled against the anti-death penalty advocates. It noted “surely the Legislature could not have expressly and implicitly provided for physician involvement in executions, and simultaneously subjected participating physicians to discipline or other legal sanctions from engaging in lawful conduct.’
Finally, the North Carolina Medical Board pre-emptively expressed a will to discipline doctors involved in executions. It issued a statement in 2007 warning such doctors may be the subject of disciplinary action. The Department of Corrections sued and the case percolated to the North Carolina Supreme Court. State law required physicians participate in such executions. The Supreme Court noted that the state legislature wrote both the state death penalty law and the Medical Practice Act which created the Medical Board. “To allow [the Medical Board] to discipline its licensees for mere participation would elevate the created Medical Board over the creator General Assembly.”
In state courts which have addressed the issue, the outcome has been consistent. If healthcare personnel are mandated by law to oversee state sanctioned executions, the State Medical Board is not empowered to discipline the doctor for mere participation.
Some state legislatures have gone one step further, not leaving the issue to judicial interpretation. Some states have created “safe harbors” explicitly preventing the state Medical Board from sanctioning doctors who participate in executions. Illinois was among the first states to grant this immunity to physicians. The legislature enacted the shield law in response to a complaint asking the Illinois Medical Board discipline those doctors willing to participate in the execution of John Wayne Gacy, the mass murderer. Gacy lured victims to his house by force or deception and murdered by either asphyxiation / strangulation with a tourniquet. Gacy buried 26 of his victims in the crawl space of his home. Gacy became known as the “Killer Clown” due to his charitable services at fundraising events, parades and children’s parties where he would dress as “Pogo the Clown.”
Doctors have given various reasons for participating. And such doctors believe their actions conform to general medical ethical principles. One doctor, Dr. Carlo Musso, says he feels an obligation not to abandon inmates in the final moments of life. He explained,”[T]his is an end-of-life issue, just as with any other terminal disease. It just happens that it involves a legal process instead of a medical process. [A death penalty] patient is no different from a patient dying of cancer – except his cancer is a court order.”
Dr. Kenneth Baum noted: “Condemned death row inmates are, for all practical purposes, terminally ill patients, albeit under a nontraditional definition of the term, and deserve to be treated as such.” He continued, “[t]o desert these individuals in their most vulnerable hour would be antithetical to the beneficent ideals of medical practice.”
In sum, if state law mandates a doctor participate in executions, the state Board of Medicine generally cannot discipline a doctor for following the law. More detailed discussion of this issue can be found in an excellent review article by Ty Alper: The Role of State Medical Boards in Regulating Participating in Executions