Clinicians’ Involvement in Capital Punishment – Constitutional Implications

N Engl J Med 371;2 nejm.org july 10, 2014

Nadia N. Sawicki, J.D., M.Bioethics

If capital punishment is constitutional, as it has long been held to be, then it “necessarily follows that there must be a means of carrying it out.”1 So the Supreme Court concluded in Baze v. Rees, a 2008 challenge to Kentucky’s lethal-injection protocol, in which the Court held that the means used by Kentucky did not violate the Eighth Amendment’s prohibition against cruel and unusual punishment. Lethal injection procedures have changed significantly since 2008, and that fact coupled with Oklahoma’s recent botched lethal injection of Clayton Lockett, the latest in a long series of gruesome and error- ridden executions, has raised questions about whether current methods would pass constitutional muster if reviewed by the Supreme Court. Unfortunately, they probably would.

This likelihood may surprise members of the medical and scientific communities who oppose involvement by their professions in implementing the death penalty. Lethal injection, the primary execution method used in all death-penalty states, was adopted precisely because its sanitized, quasi-clinical procedures were intended to ensure humane deaths consistent with the Eighth Amendment. But experiences like Clayton Lockett’s, which result from prisons’ experimentation with untested drugs and reliance on personnel with unverifiable expertise, demonstrate the dearth of safeguards for ensuring that this goal is actually achieved. Some drug companies now refuse to distribute drugs used for executions, pharmacies are reluctant to participate unless their identities are shielded, and organized medicine has taken a stand against physicians’ involvement in capital punishment. Nevertheless, states have demonstrated their willingness to continue with lethal injections, and most federal courts have allowed executions to proceed in the face of constitutional challenges. The time is therefore ripe for the medical and scientific communities to consider, once again, their role in this process. [Full Text]

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