JURIST Special Guest Columnist and British human and medical rights activist Dr. David Nicholl, a neurologist at Queen Elizabeth Hospital, Birmingham, says that the ethical dilemma posed by the continuing involvement of the medical profession in state executions should be resolved by changing the law and eliminating the death penalty once and for all…

Doctors have been central participants in the death penalty since the time of Dr. Joseph Guillotin and the French Revolution. Dr. Guillotin (the "e" was added in error later by others) was against the death penalty but proposed the use of a mechanical decapitation machine in 1789. In his view, this would enable a more private humane execution that itself would be an interim step to banning the death penalty completely. In 1890, with the development of the electric chair, Dr. Alfred Southwick, the head of the commission which recommended its use, was reported as saying “we live in a higher civilization from this day”. The electric chair itself fell out of favor after evidence that the electrical flow frequently arced, cooking flesh and sometimes igniting prisoners.

Over 200 years later, a new report from Amnesty International clearly shows how the death penalty is still reliant on the involvement of the medical profession, in breach of clear ethical guidelines to the contrary. A founding principle of medicine has always been “first do no harm”.

The guillotine may no longer be in use, but doctors were crucial in the most recent method of execution, lethal injection. In 1977, Dr. Stanley Deutsch, a professor of anaesthetics, responded to the State of Oklahoma’s request and suggested the method of lethal injection which is now used in all 38 death penalty states in the US and is rapidly increasing in use elsewhere, such as China. Lethal injection consists of a cocktail of drugs, essentially a fast-acting anaesthetic, a muscle-paralysing agent and a cardiotoxin and this is now the method of choice in virtually all US executions. There is no clear medical reason for the use of the muscle-paralysing agent, Pancuronium, as there is the very real possibility of a prisoner who is paralysed but only partially anaesthetized will experience intense pain with the cardiotoxin, Potassium Chloride. However, for death penalty proponents, clearly it would be disturbing to see a prisoner writhing in pain, so the use of Pancuronium would be a politically astute move. It is interesting to note how even the US veterinary association regard the use of Pancuronium unacceptable in the euthanasia of domestic pets. Today’s report clearly shows a number of cases where executions have been botched with prolonged deaths, skins burns and convulsions.

Why do doctors involve themselves in the death penalty, when every medical association that has studied the matter, has so conclusively opposed the involvement of healthcare workers in the death penalty? Often there is ignorance of ethical guidelines amongst members of the medical community. In 2001, a survey of 413 American Medical Association members revealed that 41% were willing to undertake at least one of the activities prohibited by AMA guidelines, and only 3% knew of any guidelines covering their involvement in executions. Even in countries which do not have the death penalty such as Denmark, there are medical death penalty proponents. In a survey of 591 Danish doctors in 1989, although 80% opposed capital punishment, 13% considered it acceptable and 3% would be prepared to directly assist with executions themselves. Last year, the New England Journal of Medicine interviewed 4 doctors and a nurse who had participated in executions. Some believed that what was being carried out reflected the law, and others that prisoners had a right to competent treatment even as their life was being brought to an end. One of the doctors who had been involved in executions stated “A lot of society thinks these people should not get any care at all”, but “thirteen jurors, citizens of the state, have made a decision. And if I live in that state and that’s the law, then I would see it as being an obligation to be available”. Another doctor involved, Dr. Carlo Musso, who had participated in 6 executions in Georgia spoke openly. Like Dr. Guillotin before him, Dr. Musso stated he was against the death penalty but felt that it just seemed “wrong for us to walk away to abdicate our responsibility to our patients…. The way I saw it, this is an end-of-life issue, just as with any other terminal disease”. Therein lies the dilemma: it is clearly ethically wrong to torture inmates to death with unskilled execution personnel, but also ethically wrong to bring skilled personnel into the execution process. The New England Journal of Medicine concluded that “Medicine is being made an instrument of punishment. The hand of comfort that more gently places the IV, more carefully times the bolus of potassium, is also the hand of death. We cannot escape this truth”.

Yet no health professional has been disciplined with respect to ethical abuses in relation to the death penalty – although in part this is due to the secretive nature of the executions, actively supported by the State which invariably protects their identity.

Just as medics have been instrumental in the implementation of the death penalty, they have been crucial in its recent demise – with direct legal challenges in California, North Carolina, Tennessee and the US Supreme Court largely centering around medical ethical concerns and also whether lethal injection is unconstitutional as a “cruel and unusual punishment”. Last year, a court in California specifically stipulated that an anaesthetist should personally supervise the execution by lethal injection of the murderer Michael Morales. Despite widespread protestations from the medical establishment, two willing anaesthetists were found within 2 days, yet neither was prepared, even under anonymity, to submit to the courts stipulation that they personally perform the injection. These ongoing ethical concerns have brought the death penalty to a standstill in California since February 2006.

Perhaps when law and ethics collide, it is the law which should change. It is time to fulfill Dr. Guillotin and Dr. Musso’s wishes by resolving this ethical dilemma, and ending the death penalty once and for all.

Dr David Nicholl, MBChB FRCP PhD is a consultant neurologist and honorary senior lecturer at City Hospital Hospital & Queen Elizabeth Hospital, Birmingham and the University of Birmingham, England. He grew up in Belfast, Northern Ireland and has been active as a human rights activist on Guantanamo and as a supporter of Amnesty International and Reprieve.
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