Dr. Joel Zivot: Executions must be conducted in a certain way
He asks: How should physician respond if an execution fails?
Editor’s Note: Dr. Joel Zivot is an associate professor of anesthesiology and surgery at Emory University School of Medicine and adjunct professor of law at Emory Law School. A practicing anesthesiologist and intensive care specialist, Zivot has written extensively on the subject of physician participation in lethal injection and the problems of lethal injection in the circumstance of coexisting illness of the condemned. He opposes the use of lethal injection in executions.
Virginia executed Ricky Gray, 39, by lethal injection on Wednesday evening at the Greensville Correctional Center. Virginia was to use compounded midazolam and compounded potassium chloride, as well as the paralytic drug, rocuronium bromide.
Midazolam has been highly problematic in past lethal injections. Lethal injection is a trick of chemistry, and contrary to appearances, does not cause a cruelty-free death. Lately, the practice of lethal injection has somehow gone awry as more states drop the paralytic drug from the traditional three-drug cocktail and drug shortages lead to suspicious drug substitutions.
Virginia used a paralytic drug that may obscure the failure of midazolam to create the sort of deep unconsciousness contemplated by lethal injection proponents. All three drugs used in the Virginia protocol have reversing antidotes or inhibitors of some kind and these agents could be used to halt an execution gone wrong.
Virginia made no claim that these reversing drugs would be on hand and further, it is not known whether anyone with expertise in the use of these agents was present during the execution. Suspicions are spreading throughout the population in capital punishment states, but even as demand for forthright and open public debate rises, these states respond by placing legal shrouds in the form of secrecy laws over the details of execution.
Execution is a kind of killing and to be lawful, it must occur without cruelty. Lethal injection has emerged as the latest method of execution without obvious cruelty, replacing the electric chair, the gas chamber, the firing squad and the noose. Lethal injection approximates a medical act and this is no accident.
Medical acts fall within the purview of physicians who now find themselves wittingly or unwittingly cast in the role of execution adviser. The American Medical Association and the American Board of Anesthesiology both have statements condemning physician involvement in capital punishment based on an ethical prohibition against killing, yet some physicians continue to linger around execution activity.
Physician participants in capital punishment claim that professional medical societies are playing at politics more than at ethics when they object to physician involvement by setting aside another ethical imperative to reduce suffering.
For physicians, the cluster of so-called “botched” executions presents a particular sort of ethical dilemma. Secular and religious ethics both direct against standing idly by in the face of suffering. Here, an inmate dying by lethal injection is compared to a patient dying of a terminal illness.
Public concerns about aggressive care at the end of life have led to medical interventions directed to control pain and distress as a primary therapeutic intervention, abandoning any notion of a traditional cure. Now, death is the cure; death has been reimagined as a treatment and lethal injection has been reimagined as another form of euthanasia.
How sound is the comparison between end-of-life care in the hospital setting and the end of life in the execution chamber? From a distance, the comparison may seem apt and for the physician who participates in the execution, a distant similarity is sufficient, but it is a false similarity.
An inmate facing death is not a patient by virtue of being connected to an intravenous device and having a doctor in a lab coat standing by. Physicians can only work with patient consent. Patients can only consent if they are freely weighing and deciding – and an inmate on the brink of death has no such freedom. Circumstances exist under which an individual lacks this capacity and designates a relative to act as decision maker.
In the execution chamber, the warden seems a poor substitute and certainly never the physician. If a physician touches a patient without consent, the law regards it as a battery, although state laws immunize the physician in the execution chamber.
Lethal injection only impersonates a medical act and in order to be certain that suffering is reduced in a medical setting, much more information in the form of monitoring and testing is required. To date, lethal injection proponents have not sought to verify the claim that a doctor makes any difference at all. Medical practice is a highly regulated activity performed by highly trained and licensed individuals. When a doctor changes a tire, he is not practicing medicine. When a doctor is standing in the execution chamber, he is not practicing medicine either.
State secrecy laws protect the identity of these doctors. State medical boards, charged with regulating all physician activity – including moral turpitude – should not be blinded if physicians are truly there to alleviate suffering. What is the role of the doctor in the execution chamber? When does the alleviating of suffering become physician-assisted homicide?
The US Supreme Court has ruled that every inmate is entitled to medical care. If the execution method fails to cause death, the physician as the state agent, must be able to revive the inmate in order to avoid killing him, not by lawful execution but by unlawful manslaughter.
Lethal injection, as presently practiced, is an impersonation of medicine populated by real doctors who don’t acknowledge the deception. The rightness or wrongness of capital punishment remains an open question but it’s time to reject lethal injection. If capital punishment continues, it needs another method.