The International Library of Essays on Capital Punishment, Volume 3

Policy and Governance

Peter Hodgkinson

• Publisher: Taylor & Francis
• Year: 2016
• Print ISBN: 9781409461371
• eBook ISBN: 9781351887472
• Edition: 1
• Topic: Social Sciences
• Subtopic: Politics
• Index: Social Sciences

This volume provides analyses of a range of subjects and issues in the death penalty debate, from medicine to the media. The essays address in particular the personal complexities of those involved, a fundamental part of the subject usually overridden by the theoretical and legal aspects of the debate. The unique personal vantage offered by this volume makes it essential reading for anyone interested in going beyond the removed theoretical understanding of the death penalty, to better comprehending its fundamental humanity. Additionally, the international range of the analysis, enabling disaggregation of country specific motivations, ensures the complexities of the death penalty are also considered from a global perspective.

Part I
Medical Issues

[1]

Doctors and the death penalty: ethics and a cruel punishment

Robert Ferris and James Welsh*

Introduction

The role of doctors and other health professionals has been, paradoxically, both important and marginal in the development of the death penalty. It has been important to the extent that physicians have contributed to the development of execution techniques, to the acceptability of execution in the public eye, and to pressure for reform. But it has been marginal inasmuch as the state does not need the presence of a physician to bring about the death of the condemned.¹ The oscillation between importance and marginality covers the territory of a very important human rights and ethical discussion. In this chapter we discuss the evolution of professional ethics towards a restrictive view of physician participation and examine future challenges posed by the death penalty to the ethics of health professionals. Our viewpoint reflects our belief that the most humane and life-affirming position that could be adopted by health professionals would be to work for the abolition of capital punishment.

Information on the role of health professionals in the contemporary application of the death penalty in most retentionist countries is sketchy, and even in the country which is the most openly reported on, the United States, there remain dark corners into which the light of scrutiny does not reach. Photographs of public executions in some countries show men in white coats, presumably doctors, examining corpses tied to stakes — doctors playing the traditional role of verifying death by execution. Apart from this, there has been virtually nothing to report for most of the world. The principal exceptions (outside the US) have been in China and Taiwan, where the issue of organ transplantation involving the organs of executed prisoners has focused attention on the medical role, and Guatemala and the Philippines, where the introduction of lethal injection laws stimulated discussion among medical professionals. In the US, the medical role has been discussed intensively for around two decades since the introduction in 1977 of laws providing for execution by injection of lethal substances into the body of the condemned.² This debate has contributed to a clearer understanding of the role of health professionals in various facets of capital punishment.

In summary, the information available allows us to define the role of health professionals (including psychiatrists) in the following way:

1. Physicians are involved in the medical care of death row prisoners, in preparations for execution such as certifying fitness, procuring chemicals for lethal injection and sedating the prisoner on the day of execution, advising on or participating in the execution itself, pronouncing death,³ certifying death, removing organs for transplantation, and carrying out an autopsy.

2. Psychiatrists carry out mental state evaluations, provide testimony in a number of contexts related to capital cases (including ‘fitness for execution’ determinations) and give or recommend treatment (see below).

3. Other health professionals, notably nurses and paramedics, may be called upon to carry out a number of the roles requested of doctors where doctors refuse to participate or where the authorities prefer for whatever reason to use non-medical personnel.

Not all of these activities are unethical but some undoubtedly are, while the ethical status of others is disputed. In some cases, the ethical requirements may be relatively clear but the context far from unproblematic. In one case in 1995, for example, emergency care physicians in a hospital in Oklahoma were brought a death row prisoner, Robert Brecheen, who had attempted suicide by drug overdose on the eve of execution. After emergency resuscitation and stabilisation, he was taken by guards back to the prison and executed a few hours later.⁴ A similar case occurred in December 1999. David Martin Long was taken by a medically staffed aircraft (against medical advice) from the intensive care unit in Galveston where he had been admitted following a deliberate overdose of anti-psychotic medication two days earlier, to the execution chamber where he was put to death on 8 December.⁵ The practice of states to ask doctors to save the lives of condemned men in order to allow the state to carry out their execution a matter of hours or days later is an act of considerable cynicism; moreover, the line between acting for the benefit of the acutely ill and acting solely to facilitate the state’s desire to carry out the killing itself is a fine one and imposes a serious strain on medical ethics.

Development of ethics against professional participation

The section that follows deals substantially with the discussion of ethics taking place within medical professional bodies. We give less attention to a vigorous and important analysis of ethical issues within the wider professional community. For such analysis the reader is referred elsewhere.⁶

From an historical perspective, one of the important influences on the relationship between physicians and the death penalty has been the development and refinement of codes of professional ethics. This in turn has been assisted by the establishment of international professional bodies.

Physicians

While the issue of executions did not figure in any of the codes up to and including the nascent World Medical Association’s Declaration of Geneva (1949),⁷ subsequent codes have been adopted which are of greater relevance to this issue. In 1975, the World Medical Association (WMA) adopted the Declaration of Tokyo against medical participation in torture. While this did not explicitly apply to the death penalty, it encompassed clear guidance against medical participation in abuses and set the scene for the unrelated but congruent WMA position against medical participation in executions adopted six years later.

In September 1981, the WMA, fearing the imminent execution of a black prisoner in Oklahoma (which would have been the first execution by lethal injection), issued a press release expressing opposition to medical involvement and followed up with a declaration against medical participation in a lethal injection (or any other) execution outside of certifying death.⁸ The WMA declaration was preceded a year earlier by a position statement adopted by the American Medical Association (AMA) opposing medical participation in executions.⁹ Public health physicians in the US also adopted statements against capital punishment.¹⁰ (The AMA subsequently went on to develop a detailed statement against medical participation in which specific acts were ruled either as proscribed or acceptable; see Table 3.1 below.)

Psychiatrists

In 1969, the Board of Trustees of the American Psychiatric Association (APA) adopted an anti-death-penalty resolution¹¹ and to the best of our knowledge this resolution has never been rescinded (though an attempt to ‘reaffirm’ the resolution in 1998 was unsuccessful¹²). During the 1980s, both the APA and the World Psychiatric Association (WPA) adopted positions against the direct involvement of psychiatrists in the death penalty. In 1980, the APA declared that:

The physician’s serving the state as an executioner, either directly or indirectly, is a perversion of medical ethics and of his or her role as a healer and comforter. The APA strongly opposes any participation by psychiatrists in capital punishment … in activities leading directly or indirectly to the death of a condemned prisoner as a legitimate medical procedure.¹³

The WPA held that ‘the participation of psychiatrists in any … action [connected to] executions is a violation of professional ethics’.¹⁴ Both the APA and the WPA were to return to these issues in the following decade (see below).

Nurses

In 1989, the International Council of Nurses (ICN) adopted a particularly strong statement against the professional involvement of nurses in executions which ended with an appeal by the ICN for ‘national nurses’ associations to work for the abolishment of the death penalty in all countries still practising this form of punishment’. In a 1998 revised declaration, the ICN called on ‘member national nurses’ associations [to] lobby for abolition of the death penalty’.¹⁵

Developments in the 1990s

The organised medical profession has taken an increasingly abstentionist stand with regard to participation in the death penalty. This has been manifested in statements adopted by the AMA and by other national bodies¹⁶ with support from medical and human rights NGOs.¹⁷ The position adopted by the AMA in 1992 is a model of clarity and, to the extent that it is possible, lack of ambiguity (though it has persistently not addressed the question of the death penalty itself). The guidelines prohibit:

• any action that would directly cause the death of the condemned;

• any action which would ‘assist, supervise or contribute to’ the action of another in bringing about death; and

• action which could automatically cause an ex...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Acknowledgements
• Series Preface
• Introduction
• Part I Medical Issues
• Part II Capital Punishment Policy Around the World
• Part III Executions, Executioners and the Condemned
• Part IV Media
• Part V Capital Punishment and Religion
• Part VI Drug Offenders and Capital Punishment
• Part VII War and the Death Penalty
• Name Index