That's the title of an article in the current issue of the New England Journal of Medicine by George J. Annas. LINK Here's the introduction of this must-read articles:
Michel Foucault opened his 1975 book Discipline and Punish with a particularly gruesome account of a French execution in 1757 that involved tearing the flesh away with hot pincers and applying boiling oil to what remained, followed by drawing and quartering of the body by four horses.1 In the 18th century, the goals of torturing to death were retribution and deterrence by spectacle. Executions slowly moved away from violent torture to methods that were seen as being more humane, such as hanging, shooting by a firing squad, electrocution, and lethal gassing. Executions also became much less public.
In the United States, a recurring question has been whether particular methods of execution are consistent with the Eighth Amendment to the Constitution, which states: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." The most recent new execution technique to raise this question is lethal injection. In 1977, Oklahoma became the first state to adopt lethal injection, and today it is used in 36 states and by the federal government. Deborah Denno has argued that in adopting lethal-injection executions, "The law turned to medicine to rescue the death penalty."2
After a number of statutes regarding lethal injection were passed, but before the country's first execution by lethal injection in 1982, William Curran and Ward Casscells wrote an influential article in the Journal arguing that physicians should not participate in executions by lethal injection.3 They wrote that lethal injection, unlike other methods, "presents the most serious and intimate challenge in modern American history to active medical participation in state-ordered killing of human beings . . . [since] this procedure requires the direct application of biomedical knowledge and skills in a corruption and exploitation of the healing profession's role in society."3 The American Medical Association (AMA) and other medical societies quickly followed their advice, declaring the participation of physicians in executions by lethal injection unethical. Ethics, of course, is critical to the medical profession. But as Robert Veatch noted at the time, no principle of medical ethics itself defines or sets legal limits to the physician's role in executions4; this helps explain why some physicians still participate in executions by lethal injection.5,6
Much of this year's decision of the U.S. Supreme Court regarding lethal injection, Baze v. Rees, reads like Foucault's Discipline and Punish. Foucault, for example, analyzed torture in execution as well as the contemporary movement to replace the vicious executioner with "a whole army of technicians . . . warders, doctors, chaplains, psychiatrists, [and] psychologists." Likewise, in Baze, the Supreme Court highlighted not only past uses of torture, but also issues of contemporary medical practice and medical ethics, including the drugs used, their method of delivery, the qualifications of the persons involved, and the similarities and differences between veterinary euthanasia practices and the Dutch protocols for euthanasia.7 The decision, which did not address the constitutionality of the death penalty itself, is fragmented and fractured, consisting of opinions written by seven different justices. Seven of the nine justices agreed that Kentucky's protocol for lethal injection, which was at issue in this case, is constitutional as is, but no more than three justices — Chief Justice John Roberts and two justices who signed on his plurality opinion — could agree on a specific standard that executions by lethal injection must meet.
Earlier coverage of the issue of physician participation in lethal injection executions is in the scholarship index.
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