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Upholding Death Row Inmates’ “Suicide Burden,” Federal Judge Attacks Medical Profession

Chief United States District Judge for the Middle District of Alabama, W. Keith Watkins, has big-time beef with the medical profession.

According to Judge Watkins, “modern medicine has orphaned Hippocrates and his Oath, in the name of patient self-determination and choice.” The entire medical community, Watkins decries, is violating the Hippocratic Oath by, “unleashing the genies of physician-assisted suicide, medical marijuana, drug and alcohol use.” But, worst of all, according to Watkins, they have been “countenancing medical procedures that the original [Hippocrates] Oath prohibited. For instance, the oldest version of the Oath says, ‘I will not give to a woman an abortive remedy.’ Today, that provision is history, aborted by modern medical ethicists.”

Now, maybe you’re thinking, Judge Watkins must have been overheard saying these things at a private dinner. Or, maybe, he was caught on a hot mic at a gala after supping at the local country club? Perhaps, you know, Billy Bush was there?

Nope.

Watkins’ fire and brimstone attack is part of a 29-page federal court opinion granting a motion for summary judgment filed by lawyers for the Alabama Department of Corrections (ADOC); ADOC was being sued by five death row inmates in Alabama who claim their impending executions by lethal injection with the controversial drug midazolam will cause them excruciating pain in violation of the Eighth Amendment’s prohibition of cruel and unusual punishment. The five condemned men in question (and all of Alabama’s death row population) have plenty of reason to fear a torturous end because: (1) Alabama’s last execution may have burned a man alive; (2) Alabama tilts the advantage in executions in favor of prosecutors; and (3) death row inmates in Alabama are human guinea pigs.

In one particularly dyspeptic section of Judge Watkins’ sui generis opinion titled, “Alternative Method Evidence: Hippocrates and Hypocrites,” Watkins accuses doctors, nurses, ethicists, and everyone else involved in medicine, of standing “by passively as sodium thiopental and pentobarbital were ripped from [the] medical bag of compassionate pain management by a tiny cadre of death penalty abolitionists.”

By dizzying turns of circular and impenetrable right-wing logic, Judge Watkins’ opinion argues, it is primarily because of the medical community’s malfeasance that Alabama death row inmates can’t satisfy, “the burden of proving a known and available alternative method of execution that significantly reduces the risk of substantial pain in execution,” also known as “the ‘suicide burden’.”

“Suicide burden,” you ask? Yes, indeed. But, when it comes to this abomination of jurisprudence, you can’t blame Judge Watkins (and yes, still no Billy Bush sightings here); when it comes to what’s been called disgustingly, for shorthand, the “suicide burden,” point the needle straight at Supreme Court Justice Samuel J. Alito instead.

It is Alito’s opinion in the Supreme Court’s fractured five-to-four decision in Glossip v. Gloss, 135 S. Ct. 2726, 2737 (2015), that thrust the unconscionable, unethical, and I respectfully submit, unconstitutional burden — upon death row inmates challenging the method of their execution — to establish the existence of a known and available alternative method that is, “feasible, readily implemented, and in fact significantly reduce[s] a substantial risk of severe pain.”

I am not alone. As reported in sciencedaily.com: “Court orders demanding death row inmates to provide ‘specific, detailed and concrete alternatives,’ to a state’s lethal injection protocol compel those inmates to produce evidence that is impossible to obtain without forcing physicians and other clinicians to violate their medical ethics, according to Harvard bioethicists and legal experts. Such orders, therefore, the experts argue, pose an insurmountable hurdle for inmates seeking alternative methods of execution.”

So, where does Judge Watkins’ opinion, issued on Halloween (which must have thrilled all of the ghouls) leave 74-year-old Tommy Arthur, scheduled to die by lethal injection today, in the hellhole of Holman Prison, in Atmore, Alabama?

The answer is dismal. But, just as gloomy and even harder to fathom is, where does it leave all compassionate, justice-loving Americans who reject torture, who believe in science, the Constitution, and, also, that the medical community is not some nefarious justice-thwarting-conglomerate on a mission to harm us all?

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Stephen Cooper is a former D.C. public defender who worked as an assistant federal public defender in Alabama between 2012 and 2015. He has contributed to numerous magazines and newspapers in the United States and overseas. He writes full-time and lives in Woodland Hills, California.

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