Psychiatric Annals

CME 

Ethical Responsibilities of Physicians: Capital Punishment in the 21st Century

Karen B. Rosenbaum, MD; William Connor Darby, MD; Robert Weinstock, MD

Abstract

The United States is in the company of only 22 other countries with the death penalty. The American Medical Association is among many medical professional organizations that prohibit the participation of physicians in the physical act of execution. Despite these clear guidelines, debate remains regarding physician involvement in various aspects of death penalty cases. This article outlines different positions that physicians and specifically forensic psychiatrists have taken on this issue. Our position is that given the overwhelming secondary duty related to their physician role—specifically to do no harm—forensic psychiatrists should not use their expertise if they believe their involvement will be used for the primary purpose of obtaining a death penalty. Of necessity, forensic evaluations can do harm. But when something as extreme as death is concerned, the secondary medical duties preclude directly facilitating a person's death. [Psychiatr Ann. 2015;45(12):615–621.]

Abstract

The United States is in the company of only 22 other countries with the death penalty. The American Medical Association is among many medical professional organizations that prohibit the participation of physicians in the physical act of execution. Despite these clear guidelines, debate remains regarding physician involvement in various aspects of death penalty cases. This article outlines different positions that physicians and specifically forensic psychiatrists have taken on this issue. Our position is that given the overwhelming secondary duty related to their physician role—specifically to do no harm—forensic psychiatrists should not use their expertise if they believe their involvement will be used for the primary purpose of obtaining a death penalty. Of necessity, forensic evaluations can do harm. But when something as extreme as death is concerned, the secondary medical duties preclude directly facilitating a person's death. [Psychiatr Ann. 2015;45(12):615–621.]

The United States is in the company of 22 other countries such as Afghanistan, Algeria, Libya, South Korea, and Uganda as having reported death sentences in 2014.1 The US Supreme Court has repeatedly upheld that the death penalty does not violate the cruel and unusual punishment clause of the eighth amendment. As of 2015, 19 states and the District of Columbia have abolished the death penalty.2 As of December 31, 2014, 140 countries had abolished capital punishment in law or practice. Amnesty International reported, “there is no evidence that the death penalty has a greater deterrent effect on crime than terms of imprisonment.”1

The American Medical Association (AMA) is one of many medical professional organizations that prohibit the participation of physicians in the actual act of execution.3 Other organizations that share this stance include, but are not limited to, the American Psychiatric Association (APA),4 the American Association of Anesthesiologists, the American Nurses Association,5 and the American Public Health Association.6

The AMA guidelines specifically state, “an individual's opinion on capital punishment is the personal moral decision of the individual. A physician, as a member of a profession dedicated to preserving life when there is hope of doing so, should not be a participant in a legally authorized execution.”2 The AMA defines physician participation as (1) an action that would directly cause the death of the condemned; (2) an action that would assist, supervise, or contribute to the ability of another person to directly cause the death of the condemned; and (3) an action that could automatically cause an execution to be carried out on a condemned prisoner.2

The AMA defines participation in an execution as including, but not limited to, prescribing or administering medications that are part of the execution procedure, monitoring vital signs including electrocardiograms either at the site or remotely, attending or observing the execution as a physician, and giving technical advice about the execution procedure. When lethal injection is involved, it is prohibited for a physician to select the injection site and to start intravenous lines or ports. Also, per the AMA, physicians are prohibited from “prescribing, preparing, administering, or supervising injection drugs or their doses or types; inspecting, testing, or maintaining lethal injection devices, and consulting with or supervising lethal injection personnel.”2

Physician Participation in Executions

Despite these clear current guidelines for physicians, there is debate within the medical field about physician involvement in various aspects of death penalty cases. The history of physician involvement in executions dates all the way back to 1789 when French physicians, and opponents of the death penalty, Drs. Antoine Louis and Joseph Ignance Guillotin developed a device to humanely behead prisoners. The device was used from 1792 to 1877 until the death penalty was abolished in 1881. Dr. Guillotin was noted to be disillusioned that his efforts actually increased capital punishment.7

In 2008, the US Supreme Court ruled in Baze v Rees8 that Kentucky's lethal injection protocol does not violate the eighth amendment, and that the eighth amendment requires the defendant to introduce and prove there is a known available alternative. Justice Thomas argued that Kentucky's protocol, if administered correctly, will result in a “swift and painless death.“ In his dissent, Justice Breyer raised serious questions about the constitutionality of the death penalty.8

More recently, on June 29, 2015, the US Supreme Court in Glossip v Gross9 upheld the decision of the Oklahoma District Court and the Court of Appeals for the 10th Circuit that the use of midazolam when used correctly does not violate the eighth amendment. There was persuasive testimony from experts that 500 mg of midalozam would render a prisoner unable to feel the pain associated with lethal injections. Additionally, there were no known available alternatives suggested. Justice Sotomayer wrote in her dissent, “The court's available-alternative requirement leads to patently absurd consequences.”9 Interestingly, two of the dissenting justices in this case raised questions about the constitutionality of the death penalty.

Physician's skills have been incorporated into execution by lethal injection, implicating the medical profession in the legitimacy of killing. The three-drug regimen that is most commonly used was proposed by a forensic pathologist, Dr. A. Jay Chapman, in Oklahoma, the first state to adopt execution by lethal injection in 1977.10

Lethal injection gradually replaced other methods of execution and was thought to be more humane. However, there have been numerous reports of unskilled executioners missing veins or not preparing the mixture correctly.11 In their editorial “Bad Execution,”11 the editors of Scientific American comment on the possible suffering that lethal injection can cause. They describe that the generally accepted approach consists of a barbiturate for sedation and to suppress respiration, a neuromuscular paralytic to stop breathing and body convulsions, and a potassium electrolyte to cause cardiac arrest. Dosages are the same regardless of the prisoner's weight.11 As a result of dosage and other miscalculations, there have been issues with prolonged suffering before death. Curfman et al.10 describe that the paralysis can mask the pain caused by the administration of the potassium chloride if the person is still conscious because of an insufficient dose of the sedative. A one-drug approach might be more humane.

As discussed by Curfman et al.,10 because of botched executions, physicians have been increasingly asked to consult on lethal injections, place intravenous lines, prepare and administer drugs, and monitor vital signs. These physicians often remain anonymous.10 Physicians who participate may sometimes believe they are facilitating a more humane execution. They may believe that they are minimizing the pain and suffering of the condemned.7 But we suspect that some strong proponents of the death penalty may have no personal moral or ethical barrier to killing someone as a physician, despite the organizational injunctions not to do so as physicians.

An emergency physician in Oklahoma was named in a lawsuit involving Clayton Locket. The lethal injection used for the execution of Clayton Locket involved new drugs and according to Dyer,12 the supervising doctor declared, “it's not working” after 16 minutes as Locket struggled and even spoke. His vein had apparently blown, and he died of a cardiac event 43 minutes after the injection was administered.

Clark7 rejects the idea of physicians training nurses or physician assistants to administer the lethal injection as “illogical” as it assumes that “other health care professionals are less dedicated to the ethical ideals of the medical profession.” Additionally, training others to perform actions that would be unethical for physicians to do seems as unethical to us as physicians administering the injection themselves.

Truog et al.13 discuss one of the responses to the Clayton execution. The authors explain that a Death Penalty Committee of The Constitution Project consisting of legal professionals published 39 recommendations made to address the problems with lethal injection. Their final recommendation states: “Jurisdictions should ensure that qualified medical personnel are present at executions and responsible for all medically-related elements of executions.” Truog et al.13 explains that this is another example of the state co-opting the medical profession for their own purposes and that “execution is, intrinsically, the involuntary taking of the life of another human being, an act that can never be aligned with the goals of medicine.”13

Waisel14 made an argument for physician participation in execution by lethal injection in 2007. He blamed the AMA's prohibition against physician involvement for many botched executions. He said that many of the problems arise from issues with establishing and maintaining intravenous access. Waisel argued that, “it is honorable for physicians to minimize the harm to these condemned individuals and that organized medicine has an obligation to permit physician participation in legal execution.” He clarified that the participation would be to the extent that it would help to provide a “good death” for the prisoner.14

In a response to Waisel's commentary, Lanier and Berge15 convey their disagreement with Waisel and believe that physicians should not be involved in causing the death of others. However, they admit that historically, physicians and medical organizations have often refrained from publicly dealing with controversial issues such as the death penalty, and have allowed others to “co-opt our medicines, procedures, and terminology, all in the name of more humanely attending to the death of an accused person.”15

Ethicist Arthur L. Caplan's view is that any relief of suffering provided by a physician in the last minutes of life of the condemned is “too high a price for medicine to bear relative to the harms caused by legitimizing the practice of execution through physician involvement.”16 This viewpoint is reflected by AMA and APA prohibitions against being a participant in a legally authorized execution. Participation in any form would be seen as a gross perversion of the medical profession and its roles. Much of the debate about the ethics of physician participation in executions attempts to separate medical ethics from the moral view of the death penalty as specifically stated in the AMA guidelines.

Paul Litton, associate professor at the University of Missouri School of Law with a doctoral degree in philosophy argues, “This considerable literature on the ethics of physician participation in executions implausibly divorces the ethics of physician participation from the moral status of the death penalty. Any ethical position on physician involvement requires some judgment about the moral status of capital punishment.”17 He believes that the moral status of capital punishment is “one important factor that must be considered within a complex analysis of the ethics of participation.”17

Kadlac18 agrees that it is impossible to separate the ethics of physician participation in executions from the question of whether the death penalty should be abolished. He believes that the morality of the death penalty and the ethical issue of physician participation are intertwined. He does not take a moral stand on the issue but urges that, “we frame debates about physician participation in the execution process in explicitly moral terms.” He argues that, “if the death penalty is punishment that justice requires for some criminals, then there cannot be an explicitly ethical barrier to the participation of physicians in the execution process.” He also discusses that if the execution process is dependent on the medical community, and the ethics of that community are “first do no harm,” then perhaps the medical community can help provide the information necessary to reflect on the morality of capital punishment.18

However, in the opinion of present authors, the ethics of the death penalty can be separated from the ethics of physician participation. A person can personally believe in the morality of the death penalty in some cases but that does not necessarily mean that it is ethical for a physician to be part of the execution process. In our opinion, it is inappropriate for physicians to participate whether or not they personally believe the death penalty in a specific case is morally justified because the action itself is antithetical to the roles and responsibilities attributed to the medical profession by society.

There is literature comparing the physician participating in executions to the physicians in Nazi Germany who reported they were “just following orders” when they participated in torturous experimental treatments and procedures leading to the death of innocent people.19 Litton17 argues that “even if not on par with Nazi atrocities, the capital system could be sufficiently unjust to give doctors strong reason not to be complicit in the practice or seen as endorsing it.”

Clark strongly argues that physicians “are being used by certain states to medicalize executions in order to make them more palatable to the American public and to prevent capital punishment from being declared unconstitutional because it is ‘cruel and unusual punishment.’ ”7

The Role of the Forensic Psychiatrist and the Ethics of Participation in Death Penalty Cases

Forensic psychiatrists are trained physicians. Although their primary duty may be to answer legal questions presented to them to foster justice, they are still physicians with secondary duty considerations including the Hippocratic concept of not doing serious harm to the person evaluated. Historically, forensic psychiatrists have been asked to participate in death penalty cases as expert witnesses. They have been consulted by both the defense and the prosecution, assisting on issues related to competence to stand trial and criminal responsibility. They are asked to discuss issues such as mitigating and aggravating factors, and to comment on the future dangerousness of the inmate. Much like the debate in the general medical community, there is a debate within the field of forensic psychiatry about the ethics of participating in capital murder cases.

Providing psychiatric consultation in death penalty cases is currently not considered an ethical violation according to the AMA. The guidelines state that the following is not considered participation in an execution: “testifying as to medical history and diagnoses or mental state as they relate to competence to stand trial, testifying as to relevant medical evidence during trial, testifying as to medical aspects of aggravating or mitigating circumstances during the penalty phase of a capital case, or testifying as to medical diagnoses as they relate to the legal assessment of competence for execution.”2

Weinstock et al.20 discussed Bernard Diamond's approach to handling death penalty cases. Bernard Diamond, who is one of the founders of the American Academy of Psychiatry and the Law (AAPL) as well as the American Board of Forensic Psychiatry, would only testify for the defense, as this was in line with his ethical standards. Diamond did not believe it ethical to testify for the prosecution because “facilitating punishment was not a proper role for a physician.” He would also decline cases for the defense in which he felt his ability to reveal the “whole psychiatric truth” would be compromised.20 Although few forensic psychiatists these days would follow this approach in all criminal cases, it could be appropriate in the participation of forensic psychiatrists in some death penalty roles.

Forensic psychiatrists may be asked to consult on issues in the postconviction phase such as competence to be executed. As Zimmers and Lubarsky21 point out, forensic psychiatrists are involved in many aspects of capital cases, including involuntarily medicating prisoners for the purpose of competency for execution.

Questions have been raised whether it is ethical to perform competence to be executed evaluations because they could lead to a finding that a prisoner is competent to be executed. We oppose routine assessments of all condemned prisoners prior to their execution because it amounts to clearing a prisoner to be executed. Because without a reason to think someone might be competent, few people will meet the strict criteria for incompetence to be executed. However, if there are reasons to think a prisoner might be incompetent to be executed, then in our opinion such an assessment is ethical as there are reasons to think a finding of incompetence to be executed might be found. Even if the assessment finds the prisoner competent to be executed and it is necessary to communicate this finding, leaving these assessments only to strong proponents of the death penalty would limit the ability of prisoners who are incompetent to be executed to receive a relatively objective assessment.

Weinstock et al.22 state that although there is an AMA guideline forbidding treatment of death row inmates for the purposes of restoration to competency, treatment ostensibly for other purposes can lead to the same result. The AMA permits treating someone incompetent to be executed for the purpose of relieving suffering of prisoners from their psychosis or to maintain prison discipline. They consider it an “unintended consequence” if the person becomes competent to be executed by that treatment. The problem with this is that it requires getting into the minds of physicians prescribing this treatment to assess their intent. That never is an easy task. Also, it can be argued that if becoming competent to be executed is foreseeable as a result of the treatment for some other reason such as reducing suffering, then it might be artificial to claim that a prisoner becoming competent to be executed was not in reality part of the physician's intent. Moreover, it is questionable whether treating someone to reduce suffering of psychosis in reality is reducing suffering if it will be likely to lead to the prisoner's execution.22

However, assessing a person's competency to be executed can be considered ethical “in part because of finding of incompetence can save a prisoner's life.”22 In addition, if all psychiatrists who oppose the death penalty decline these evaluations, then there may be a bias toward a finding of competence by the remaining forensic psychiatrists who feel comfortable with capital punishment, potentially leading to more deaths.22

Zonana23 presents a case vignette in which the state orders a nondangerous death row inmate with schizophrenia to be medicated against his will for the purposes of restoring competency to be executed. Zonana makes a persuasive ethical argument for physicians to honor the patient's refusal and not violate ethical requirements by blindly following the court order. He makes suggestions for how a physician may handle being placed in this untenable position. Zonana23 also discusses the “slippery slope” that physicians encounter when they begin to rationalize gradual participation in the execution process.

Psychiatrists and psychologists are often asked to opine on the future dangerousness of a prisoner. There is a long checkered history of forensic psychiatrists determining whether or not a defendant in a capital murder case would reoffend. In 1983, in Barefoot v Estelle,24 the US Supreme Court ruled that psychiatrists were allowed to testify as to the dangerousness of a defendant. The psychiatrist in this case (nicknamed “Dr. Death”) offered his opinion in the penalty phase of the trial that with “100% and absolute” certainty, the defendant would reoffend. He did not personally examine the defendant before making this determination.24

According to Leong et al,25 “while offering an opinion about a defendant's degree of dangerousness is not in itself unethical, to do so without considering the prevailing psychiatric knowledge and with absolute certainty would seem to violate the forensic psychiatry ethical guideline of honesty and striving for objectivity as adopted by the American Academy of Psychiatry and the Law.”

Cunningham and Sorensen26 reviewed the literature regarding violence in prison by capital offenders and found that most capital offenders are not seriously violent in prison and those convicted of murder are not more likely to commit violent acts in prison than prisoners convicted of other offenses. Cunningham et al.27 also demonstrated in Texas that juror expectations of serious violence by capital offenders had high false-positive error rates. In his study, he looked at 30 years of violence predictions by capital juries.

Psychopathy, antisocial personality disorder, and sociopathy are also not predictive of serious violence in prison. Cox et al.28 explain in their study examining whether or not the results of the Hare Psychopathy Checklist-Revised had a prejudicial effect on a mock jury indicated no juror bias when the label “psychopath” was given to the defendant in a capital murder case. The mock jury was more influenced by the prediction of future violence when determining between a death sentence or life without parole. In other words, they are more influenced by an expert witness testimony predicting future violence, than the mere label of “psychopath.”28

However, in a later study, Edens and Cox29 determine from survey data collected from attendees at a national capital mitigation conference that evidence concerning antisocial personality disorder, sociopathy, and psychopathy influenced trial outcomes. Despite objections by the defense teams to omit these prejudicial labels, this evidence was often ruled to be admissible in capital cases. In the study, the survey indicated that whenever prosecutors admitted any mental health information on a capital defendant, a label such as antisocial personality disorder, sociopathy, and psychopathy was included.29 The court relies on forensic psychiatrists and psychologists to determine whether or not a defendant has psychopathic traits. In another study by Edens et al.,30 they later demonstrate that “ratings of a defendant's perceived level of psychopathy strongly predicted support for executing him.”

Freedman and Halpern31 disagreed with some forensic psychiatrists who have developed a new position in which they are acting as a “forensicist,” a role separate from a physician's role. In this way they are exempt from the ethics of a psychiatrist (held by the AMA and APA) when performing a role for the state. They become “an agent of the State” and therefore have a different ethical framework. He likened this view to the rationale used by German physicians during World War II.31

In a survey of forensic psychiatrists,32 an overwhelming majority were concerned about such issues and were of the opinion that medical and psychiatric ethics still should play a role in forensic psychiatry. In fact, retention of medical and psychiatric ethics in the forensic role was considered more important than other controversial issues such as not distorting data, not having sex with an evaluee during litigation, and clarifying the legal issue if an opinion about that issue is expressed. Therefore, at least in 1991, the support was strong for forensic psychiatrists to consider medical and psychiatric ethics designed for treatment purposes in their forensic work. This contrasts with proposals by some that forensic psychiatry should have its own ethics entirely divorced from patient-centered treatment ethics.

Halpern et al.33 called for the AAPL to take a position on the abolition of capital punishment and not remain neutral. They pose the question that, “as experts in service to the furtherance of justice, is it not reasonable to believe that we might have an informed opinion” on capital punishment?

Conclusions and Comments on the Ethical Responsibilities of Physicians

Death penalty laws are still far from preventing the mentally ill from being executed. Other major issues with the death penalty in the United States include racial bias, false confessions, and wrongful convictions.

Capital punishment in this country relies heavily on physician participation, from determinations of criminal responsibility and competency to be executed, to the actual killing by lethal injection. Without physician participation, the death penalty could not persist. However, inmates on death row would have no psychiatrists to help ease their suffering and this would be considered “cruel and unusual punishment.” Without physicians, there would be no “humane” means to carry out the death penalty.

We strongly disagree with the position that some forensic psychiatrists have taken regarding their role as “forensicists” to justify performing any and all evaluations for the state in capital cases. We agree with those who believe that when the state's interests conflict with the medical ethics of the physician, and the physician overrides his ethics to conform to the state's interest, there is a slippery slope that if taken to the extreme can go down the path that led physicians in Nazi Germany to perform atrocious actions claiming that they were merely following the state's orders.

Forensic psychiatrists should uphold high ethical standards for the medical community. Because forensic psychiatrists are often placed in an educational role for the court, they often can be thought to represent the medical field as a whole even if they have only an esoteric opinion.

Weinstock,34 in explaining the method of “dialectical principlism” as a tool for resolving ethical dilemmas, acknowledges that “the AAPL Ethics Guidelines and Questions and Answers set important minimum standards, but cannot always be sufficient to assist us in making the best possible ethical decision, just as following the law is only the minimum for being an ethical person.” The method can be helpful in prioritizing duties and balancing conflicting ethical obligations. For example, despite guidelines saying it is ethical to present either mitigating or aggravating circumstances at the sentencing phase of a capital case, in our opinion it is unethical to assist the prosecution in presenting only aggravating circumstances at this phase with the intent of obtaining a death penalty sentence. That is because the sole purpose of this assessment is to find reasons to execute a person who otherwise would be sentenced to life without the possibility of parole. That contrasts with other phases of a death penalty trial in which issues like containing somebody dangerous by imprisonment may be a more ethically appropriate outcome and there still are many options possible other than a sentence to death. But we believe it is ethical to testify as to mitigating circumstances at the sentencing phase of a capital case is ethical.

The American medical community, particularly all of the medical organizations, need to unite in consensus to try to influence the courts and legislatures for the purposes of changing the death penalty policy so that the law does not infringe on medical ethics standards. Forensic psychiatrists, especially, should help inform policy and educate the public regarding the national health concern that a significant proportion of prisoners facing the death penalty are mentally ill.5,35 Of necessity, forensic evaluations can do harm to the person being evaluated in the pursuit of answering legal questions; however, when something as extreme as death is concerned, the secondary medical duties preclude directly facilitating it. Given the overwhelming secondary ethical consideration related to being a physician—specifically nonmaleficence or to do no harm—forensic psychiatrists should not use their expertise if their involvement, whether directly or indirectly, will be used for the primary purpose of obtaining a death penalty.

References

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Authors

Karen B. Rosenbaum, MD, is an Assistant Clinical Professor, New York University Langone Medical Center. William Connor Darby, MD, is a Resident in Psychiatry, University of California, Los Angeles, Semel Institute for Neuroscience and Human Behavior. Robert Weinstock, MD, is a Health Sciences Clinical Professor of Psychiatry, David Geffen School of Medicine, University of California, Los Angeles.

Address correspondence to Karen B. Rosenbaum, MD, 49 West 24th Street, Suite 908, New York, NY 10010; email: kbrosenb@gmail.com.

Disclosure: The authors have no relevant financial relationships to disclose.

10.3928/00485713-20151030-01

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