Clinicians’ Involvement in Capital Punishment – Constitutional Implications

Nadia N. Sawicki

NEJM

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.


Sawicki NN. Clinicians’ Involvement in Capital Punishment – Constitutional Implications. N Engl J Med 371;2 nejm.org july 10, 2014

Physicians, Medical Ethics, and Execution by Lethal Injection

Robert D. Truog, I. Glenn Cohen,  Mark A. Rockoff

Journal of the American Medical Association

In an opinion dissenting from a Supreme Court decision to deny review in a death penalty case, Supreme Court Justice Harry Blackmun famously wrote, “From this day forward, I no longer shall tinker with the machinery of death.” In the wake of the recent botched execution by lethal injection in Oklahoma, however, a group of eminent legal professionals known as the Death Penalty Committee of The Constitution Project has published a sweeping set of 39 recommendations that not only tinker with, but hope to fix, the multitude of problems that affect this method of capital punishment.


Truog RD, Cohen IG, Rockoff MA. Physicians, Medical Ethics, and Execution by Lethal Injection. JAMA. 2014;311(23):2375-2376. doi:10.1001/jama.2014.6425