By Dudley Sharp

The following comments are sent in response to to piece in International Affairs Forum issue, Medical Ethics, Globalization, and the Decline of Lethal Injection 

Mr. Evans undertakes a misbegotten effort to show that medical ethics require medical professionals to shun the death penalty and that some countries and pharmaceutical companies are so concerned about their moral duty that no medical products should be used in executions.

 

I propose to show that such is false. 

 

Anti-Death Penalty Activism

Mr. Evans reviews: 

"[I]s it appropriate," Justice Alito asked, "for the judiciary to countenance what amounts to a guerrilla  war against the death penalty, which consists of efforts to make it impossible for the states to obtain drugs that could be used to carry out capital punishment with little, if any, pain?" 

"States are resorting to the less effective midazolam, Justice Scalia added, "Because the abolitionists have rendered it impossible to get the 100 percent-sure drugs."

Mr. Evans responds: "It is unclear who "the abolitionists" are. There are many people who oppose capital punishment, from small grassroots groups meeting in church basements, to the Catholic Church itself. The powers that are causing lethal injection the most trouble are not activist groups, but European governments, medical associations, and transnational pharmaceutical companies." 

2009

Reprieve, an anti-death penalty group, based in England, began a public campaign against these pharmaceutical companies in Sept/Oct 2009 (1), as well as lobbying efforts with European governments (1&2); at such time those companies and countries started a movement to prevent the drugs from getting to the US. 

Reprieves less public efforts may have begun earlier.

The source of the lethal injection drugs had gone, virtually, unmentioned, in this context, from 1977, when the lethal injection protocols were adopted by Oklahoma, and from 1982, when they were first used for executions, in Texas, until 2009 - 32 years and 27 years later, respectively. 

Why did the moral outrage take 27/32 years to surface?

The anti-death penalty folks kept quiet about this issue until 2009 and the drug companies and countries were unconcerned until it became . . .  well, publicly, uncomfortable . . . in the fall of 2009.

2011 

"Reprieve . . . has led the campaign to stop European companies from selling lethal injection drugs to the United States." (2)

"Reprieve filed a lawsuit to ban the exportation of thiopental for use in executions. The British government responded that the death penalty states would simply buy it elsewhere. But shortly after, the government effectively prohibited the export as Reprieve had requested." (2) 

2015

"The state of Texas' (lethal injection) drug cache is already dangerously low . . . largely because the compounding pharmacies that make lethal injection drugs fear threats of violence if they are identified." "Many of these vendors who supply these doses to the state have refused to do it any further. It's just not worth the risk of violence." (3)

All death penalty states have either passed laws or are looking at passing laws that allow them to keep their lethal injection suppliers confidential, in order to avoid threats and the risk of violence (4). 

Reprieve, as others, are the abolitionists mentioned by the Justices.

Do No Harm?

After pharmaceutical company, Hospira, announced its decision, ending thiopental production, the American Society of Anesthesiologists stated that they were "extremely troubled" by Hospira's decision and criticized the anti-death-penalty movement for "using" thiopental supplies to make a point (5).

The doctors noted the "unfortunate irony that many more lives will be lost or put in jeopardy as a result of not having the drug available for its legitimate medical use." (5)

" . . . European restrictions on thiopental might be justifiable if they save a lot of lives on Death Row. They probably won't." ". . . substitutes for thiopental as an execution drug are readily available." (5) 

Hardly justifiable from a moral standpoint. No murderers lives will be spared in exchange for greater risk to innocent patients - a violation of the Hippocratic Oath and the "do no harm" directive.

Because of these restrictions, the state of Missouri had planned to use propofol for executions, which no one doubted would result in a quick, painless death.

The European manufacturer stated that they would withhold that drug from the US if propofol were used in executions, thus denying its use, estimated at 50 million uses per year in the US (6).

Missouri Governor Nixon was much more concerned about those innocent patients and how their lives and suffering would be additionally threatened and increased, respectively, by the withholding of that drug, that he ordered the drug not be used, because he was certain that the drug manufacturer would increase the harm and suffering to all those patients, by withholding that drug (6).

Drug manufacturers in Europe are so against uncomfortable publicity that they would, knowingly, put more innocent patients at risk, by withholding their drugs from the US, while US Governors would reject putting those innocent patients more at risk. 

As Charles Lane of the Washington Post observed: "What we have here is not a serious, effective protest, but an exercise in feel-good politics that puts innocent people at risk." (5).

Currently, the best lethal injection protocol appears to be using one drug, Pentobarbital, with some 11 US states having that protocol or announcing an effort to adopt it and it is also in use for legally assisted suicides in Oregon and Washington.

Will death penalty jurisdictions abandon lethal injection?

They might.

The constant badgering, by anti-death penalty activists, against chemical suppliers and/or compounding pharmacists might simply wear folks down. No one likes constant harassment.

 . . . or a reliable pharmacy, unaffected by threats of violence, may turn up.

An Alternative

Well known by the euthanasia community, nitrogen gas is a pain free, inexhaustible source for those wishing to take their own lives. Oklahoma has already adopted it as an alternate method of execution and I suspect more jurisdictions will.

It has many advantages over lethal injection.

That will go well, until anti-death penalty activists start harassing nature for her production of nitrogen and some in the medical community will, again, voice their opposition to participation in executions, while we have the approved ethics of assisted suicides for children, of any age, from the EU progressively enlightened Belgium Parliament (7).

ETHICS

Mr. Evans spends a large part of his article reviewing the long standing medical professions ethical prohibitions against the death penalty.

There aren't any. 

Some in the medical community have attempted to fabricate an ethical prohibition against medical professionals' involvement in state executions by invoking the famous "do no harm" credo and the Hippocratic Oath.

It is a dishonest effort.

Mr. Evans proclaims: "But it is the 'First do no harm' core of medical ethics that has brought us to this point." "First do no harm" is not an abolitionist invention but a centuries old cornerstone of the medical profession and the foundation of the trust it engenders with the public."

It is an anti-death penalty fraud that "do no harm" is in the context of the state execution of murderers (8). Neither the Hippocratic Oath nor "do no harm" have anything to do with executions (8). They are, solely, concerned with the medical profession.

" 'do no harm' (a phrase translated into Latin as "Primum nonnocere") is often mistakenly ascribed to the (Hippocratic) oath, although it appears nowhere in that venerable pledge." (8)

"Hippocrates came closest to issuing this directive in his treatise Epidemics, in an axiom that reads, 'As to disease, make a habit of two things - to help, or at least, to do no harm.'  (8)"

"As to disease" Nothing else. There is no relevance outside medicine and, most certainly, no prohibition against medical professionals participation in the state execution of murderers.

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100, 000 innocents die because of "medical misadventure" in the United States, every year.  Innocents are more at risk when we fail to use the death penalty. "Do no harm".

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The effort to ban medical professionals' participation in executions is an unethical effort to fabricate professional ethical standards, based upon personal anti-death penalty activism, from those whose professions are medically related.

From a knowledgeable expert:

Dr. Robert Truog, MD, Professors of Medical Ethics, Harvard Medical School, states:

"If I think of the kind of a hypothetical where you have an inmate who is about to be executed and knows that this execution may involve excruciating suffering, that inmate requests the involvement of a physician, because he knows that the physician can prevent that suffering from occurring, and if there is a physician who is willing to do that, and we know from surveys that many are, I honestly can't think of any principle of medical ethics that would say that that is an unethical thing for the physician to do." (9)

The classic Hippocratic Oath:

"I will neither give a deadly drug to anybody who asked for it, nor will I make a suggestion to this effect. Similarly I will not give to a woman an abortive remedy. In purity and holiness I will guard my life and my art." (8)

This is a prohibition against euthanasia and abortion (8) and has nothing to do with the fabricated medical prohibition of participation in state sanctioned executions.

Do those alleged anti-death penalty drug companies and countries fight against any drugs being exported to those countries, wherein the drugs are used in abortions and/or euthanasia?

Do those anti-death penalty physicians and medical associations promise license revocation if any of their members participate in euthanasia or abortion?

Of course not.  In fact, we have Belgium approving the assisted suicides of children, of any age, with participation by physicians (7).

Many of those countries, pharmaceutical companies and physicians fully accept and participate in both abortion and euthanasia. Those could care less about the true moral prohibitions that exist in a medical historical context. Instead, they just invent a new one, against the death penalty, while avoiding the true prohibitions, ushering in the newly renamed and truthful - Hypocrisy Oath.

Is there anyone unaware that the lethal injection executions of murderers are a criminal justice sanction and that it is not a medical procedure with patients?

Not unless they have a well-developed sense of dishonest imagination.

The few legal reviews of this topic have found as reason and fact require:

"Other courts have addressed (physicians participating in executions) and found that it does not violate the physician's code of ethics to participate in an execution . . ." "The Court... does not find that Missouri physicians who are involved in administering the lethal injections are violating their ethical obligations . .  ." (Taylor v. Crawford, Jan. 31, 2006, Court Order issued by the US Western District Court of Missouri)

Let's look at some additional sensible reviews:

The editors of The Public Library of Science (PLoS) Medicine write:

"Execution by lethal injection, even if it uses tools of intensive care such as intravenous tubing and beeping heart monitors, has the same relationship to medicine that an executioner's axe has to surgery." ("Lethal Injection Is Not Humane", PLoS, 4/24/07).

So to, The American Society of Anesthesiologists:

"Although lethal injection mimics certain technical aspects of the practice of anesthesia, capital punishment in any form is not the practice of medicine. ("Statement on Physician Nonparticipation in Legally Authorized Executions," 10/18/06).

Both confirm that which is already known: The state execution of murderers has no connection, moral or otherwise, to the medical treatment of patients. 

Rationally, there is no ethical or moral connection, Some folks just want to fabricate a false narrative. So that's what they do - just another anti-death penalty fraud.

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1) The earliest public involvement of Reprieve into stopping executions drugs into the US appears to be in Sept/Oct 2009 and, likely, sooner, privately.  http://www.reprieve.org.uk/case-study/cases-ed-zagorski/

2) "Drug Company in Cross Hairs of Death Penalty Opponents", New York Times, MARCH 30, 2011

3) "Lawmaker Says Death Penalty in Jeopardy", by Terri Langford, The Texas Tribune, April 15, 2015

4) Lots of articles, do a search "death penalty" "secrecy laws"

5) "Europe's dangerous death penalty gesture", By Charles Lane, Washington Post, 02/ 1/2011

6) "Missouri governor postpones execution over questions about lethal injection drug", By Jeremy Kohler, St. Louis Today, October 12, 2013.

7)  "What Belgium's child euthanasia law means for America and the Constitution", Eugene Kontorovich, Washington Post, February 13, 2014

8) Physicians & The State Execution of Murderers: No Medical Ethics Dilemma

http://prodpinnc.blogspot.com/2009/10/physicians-state-execution-of-murderers.html

9) New England Journal of Medicine interview titled "Perspective Roundtable: Physicians and Execution", Jan. 18, 2008

Dudley Sharp is an independent death penalty activist and Former Vice President and Political Director of Justice for All.