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In a recent ruling, Judge Malcolm Howard of the Federal District Court in Greenville, North Carolina, determined that the execution by lethal injection of Willie Brown Jr. may not proceed unless appropriate medical supervision of the process can be ensured. This ruling followed upon the presentation of evidence that all too often executioners without medical training do a poor job of administering the cocktail of chemicals required, and that as a consequence the prisoner often suffers needlessly.
North Carolina prison officials have been ordered to tell the court by this week how they will comply with its order requiring medically trained personnel to ensure that Brown is unconscious during his execution, currently scheduled for April 21. The officials have been asked a question they cannot possibly answer, and we can only hope that their conundrum will lead to a stay of execution for the prisoner.
As Adam Liptak reported recently in the New York Times (“Judges Set Hurdles for Lethal Injection,” April 12, 2006), increasingly the drug protocol used nationwide since the 1970s –originally devised by the Oklahoma Department of Corrections in consultation with the state medical examiner– is being denounced by critics as too complex and as medically unjustifiable.
The first drug administered in this procedure is the barbiturate sodium thiopental. As Liptak reports, “properly administered… it is sufficient to render an inmate unconscious for many hours, if not to kill him.” (Sodium thiopental, it is interesting to note, is the sole drug administered in the routine euthanization of pets and farm animals.)
The second drug is pancuronium bromide which, if administered by itself, would bring about paralysis without unconsciousness. If the prisoner suffers after this drug is injected, his anguish can generally not be detected by external observers since he is unable to move and thus unable to register pain. The bromide thus serves to obscure from view the effect of the third and final drug, potassium chloride, which causes the heart to stop beating but also causes unimaginable pain while travelling through the veins.
If the first drug is administered correctly, it is sufficient to render the prisoner fully unconscious and to cancel out the painful effects of the two drugs to follow. But poorly trained prison staff often choose the wrong spot on the prisoner’s body to inject the barbiturate, resulting in inadequate distribution throughout his system.
Why not, then, include well-trained medical personnel in the procedure? The American Medical Association’s ethics code explicitly forbids physicians to prescribe the drugs to be used in execution, to select intravenous sites, to administer the drugs, and to pronounce death. As Liptak reports, the code is not legally binding, and anonymous participation by doctors is not uncommon. Collusion by doctors in earlier stage of the process is also a well-known fact, from the various experts who spoke in favor of the guillotine in the 1790s to the Oklahoma state medical examiner’s oversight of the recipe for lethal injection in the 1970s.
It is not clear whether Judge Howard was aware of the AMA’s code of ethics when he ordered that the execution of Willie Brown Jr. could not proceed without the guarantee of supervision by personnel capable of “providing appropriate medical care” should Mr. Brown wake up. The judge did not say that the personnel had to be licensed physicians, but clearly the only other possibility would be to invite unlicensed individuals purporting to be medical experts. This would be to condone medical fraud, a felony in all 50 states.
If the personnel are licensed physicians, though, the problem of course is that the “appropriate medical care” they provide could only consist in taking measures to promote the continuation of Mr. Brown’s life. Such is the reasoning, in any case, behind many legal defeats of physician-assisted suicide over the years. For instance the Ninth Circuit Court of Appeals argued in 1997 that the government has legitimate interests in prohibiting such assistance since it is already obligated to “protect… the medical profession’s integrity and ethics and maintain… physicians’ role as their patients’ healers.”
While the individual physician who assists at an execution may only be violating a code of ethics, and not breaking a law, it is clear that a state that refuses to legalize physician-assisted suicide in part on the grounds that this would destroy the integrity and ethics of medicine cannot in turn legally require the participation of a physician in an execution. Execution is something that can only be carried out beyond the bounds of proper medical practice. To implicate physicians is to ask them to cease to live up to standards of conduct that the state otherwise expects them to meet.
This issue has only come up recently because lethal injection, unlike firing squads and electrocution, simulates medical procedure. But what is happening here is no more “medical” than a shantytown abortion, and if a clumsy prison guard botches the job and the inmate writhes in agony for some minutes, this is not so much a glitch in an otherwise orderly medical procedure as a reminder that to execute is, and always has been, to do harm, and it thus excludes anyone bound by the Hippocratic Oath. Ever the development of the Guillotine, pseudo-humanists have been trying to make killing something other than it can ever possibly be, and more than 200 years later the paradox and futility of this effort is not a bit less glaring.
The state has only two options: either to stop feigning humanism, or to stop executing people. Judge Howard’s refusal to permit a lethal injection to proceed without medical participation, and his simultaneous inability to arrange for this participation, reveals the worsening paralysis of a system that tries to play both options at once.
And the worse, the better. Capital punishment in America will eventually collapse under the weight of such paradoxes– unless of course those people have their way who openly see execution as a fitting occasion to inflict harm and thereby to exact revenge. This is the principle of capital punishment under Shariah law, and under the absolute monarchies of early modern Europe, where men were flayed in public squares, or torn to pieces by horses made to run in opposite directions. An awesome spectacle, to be sure, but one that does not fit well with our constitutional opposition to cruel and unusual punishment.