The hippocratic paradox: the role of the medical profession in capital punishment in the United States.

AuthorGroner, Jonathan I.
PositionThe Lethal Injection Debate: Law and Science

INTRODUCTION

Although the outcome may be death, the act of the physician may be solely to provide comfort. In this case, a physician is not acting as a tool of the government; he is acting as a physician whose goals temporarily align with the goals of the government. (1)

The medical profession has been involved in capital punishment for hundreds of years. For the majority of history, this involvement has been limited to the design of execution techniques, with the primary goal of eliminating the risk of unnecessary suffering. (2) This effort on the part of physicians to make executions more humane influenced the development of the guillotine, the electric chair, the gas chamber, and lethal injection. Lethal injection, however, is unique in that it was not only designed by a physician, it was also designed to imitate a medical procedure: the intravenous induction of general anesthesia. Thus lethal injection, unlike other execution methods, not only simulates medical practice, but also uses materials and expertise that are ordinarily used for healing. This has required medical professionals (3) to become active participants in executions.

The introduction of lethal injection in the United States marked the beginning of a rapid rise in the execution rate that has only recently begun to decline. At the same time, executions by other modern methods have fallen to nearly zero. (4) Thus, lethal injection has become synonymous with capital punishment in the United States, forcing the medical profession to become an integral part of the machinery of death. Part I of this Article provides a brief background of physician involvement in capital punishment prior to the development of lethal injection and discusses the pathophysiology of various execution methods. Part II demonstrates how the introduction of lethal injection fundamentally changed capital punishment in the United States by adding a veneer of medical respectability to judicial executions. Part III concludes that the direct result of this "medicalized" execution technique has been to draw medical professionals into the death chamber in violation of national and international ethical guidelines. Part IV describes how medicalized executions create an ethical conflict--the "Hippocratic paradox." (5) This paradox exists because it is immoral for medical professionals to increase the risk of another human being suffering torture by not participating, but also immoral for medical professionals to perform executions, because such participation risks irreparable harm to the medical profession and to the community as a whole.

  1. BACKGROUND: THE PHYSIOLOGY OF KILLING AND THE SEARCH FOR "HUMANE" CAPITAL PUNISHMENT

    "The device strikes like lightning; the head flies, blood spouts, the man has ceased to live."

    --Dr. Louis Guillotin, describing a humane execution (6)

    The origin of physician involvement in legally sanctioned killing is unknown. The first, and still the most famous, physician to be associated with a specific killing technique was Dr. Louis Guillotin. (7) Torture-executions were common in Guillotin's time, including execution methods that caused multiple skeletal fractures ("breaking on the wheel"), massive full thickness burns ("burning at the stake"), and asphyxiation by spinal cord transection (hanging). (8) By comparison, beheading with a sword must have seemed quite humane. In fact, in Guillotin's day, this form of punishment was reserved for "convicted aristocrats, and occasionally for royalty." (9) Decapitation by sword, however, was exceedingly operator-dependent, and required both a strong, accurate executioner and a sharp blade for success. (10) Guillotin, in his role as a reformer of capital punishment, (11) sought to end torture-executions and suggested that the same killing technique be used regardless of the social class of the condemned. He endorsed, but did not design, the execution machinery that now so famously bears his name. (12) One can only imagine the macabre scene of pulsatile bleeding from the headless corpse until its circulating blood volume emptied. Aesthetics aside, the guillotine became and remains the "gold standard" for instantaneous death. Ironically, Guillotin became horribly disillusioned when his namesake machine became an instrument of mass political killings instead of criminal justice. (13)

    Although the guillotine was never used in the United States, Guillotin's principle, that the goal of an execution should be to render the inmate dead as quickly and as painlessly as possible, motivated the development of new execution techniques in the United States in the nineteenth century. Prior to that time, judicial killings were primarily hangings, staged as performance art in front of thousands of people, with the condemned publicly confessing his sins from high atop the gallows just before dropping to his death. The assembled masses were intended to take home great moral lessons about the power of the state and the church (14) and the evils of crime. (15) At least some in the crowd took home drunkenness or the contents of other people's pockets instead. In fact, the mob scene that became common at public executions--in one case drawing an estimated 30,000 people--became a motivation for moving executions inside prison walls. (16) Even today, executions are carried out deep within prisons in conditions of semi-secrecy.

    Executions by hanging were common long before the first gallows were built in the United States. (17) In these ancient hangings, where a noose was placed around the condemned individual's neck and then elevated to lift him off the ground, the cause of death was likely asphyxia from tracheal compression. (18) The "long drop," in which the condemned fell to the end of the rope instead of being pulled up by the rope, became standard in 1784. (19) Further refinements into the twentieth century included placing the hangman's knot beneath the chin (20) or under the left ear. (21) This caused severe hyperextension of the neck with fractures of the second cervical vertebrae, which is said to result in rapid death. (22) It is important to note that transection of the spinal cord at this level produces quadriplegia and paralysis of the diaphragm. (23) Thus, it is likely that some hanging victims--who were often hooded to conceal their faces--actually suffocated to death while appearing entirely motionless. Furthermore, despite centuries of experience, hanging remains an inexact science. In some cases, the spinal cord has clearly not been transected, and witnesses have observed inmates writhing in agony as death by slow asphyxiation occurred. (24) Other cases reveal the opposite extreme, as demonstrated in January 2007, when the Iraqi government, operating under U.S. authority, executed Barzan Ibrahim al-Tikriti, the half brother of Sadam Hussein. In a highly publicized execution designed to show the Iraqi government was committed to western standards of criminal justice, Mr. Ibrahim was decapitated by the rope as he dropped from the gallows. (25)

    The firing squad--long favored by the military--has been used twice in the United States in the "modern" execution era: Gary Gilmore in 1977 and John Albert Taylor in 1996 were both killed in this way. (26) There is good reason to think that these men experienced nearly instantaneous and painless death. Disruption of blood flow to the brain, which would result from lacerations to the heart by multiple bullets, causes almost immediate loss of consciousness, resulting in rapid death with little or no pain. (27) Like decapitation by sword, the procedure is dependent on the skill and dedication of the executioners. If the riflemen are unable or disinclined to shoot at the inmate's heart, (28) then a slower, more agonizing death from exsanguination or pneumothorax, (29) or both, would follow. Additionally, like other mechanical execution methods such as decapitation and hanging, firing squad executions are not aesthetically pleasing.

    The electric chair was conceived based on the observation that humans who inadvertently came into contact with high voltage electric current seemed to fall instantly and painlessly dead. (30) Speaking at a legal hearing to determine the constitutionality of electrocution, Thomas Edison, the father of modern electricity, stated that electricity could be applied to the human body in such a manner as to cause instant, painless death in every case. (31) Nevertheless, the first "electrocution" (32) in the electric chair was horribly botched. According to one newspaper, it was "far worse than hanging." (33) Further horrors from the electric chair occurred well into the modern era of capital punishment. Some inmates have required multiple cycles of electricity to die, while others have smoldered, developed bleeding from the nose and mouth, and have emitted such horrific odors that witnesses became sickened. (34) Yet, the electric chair is the only form of capital punishment other than lethal injection currently in widespread use in the United States. (35) Unlike lethal injection, however, the pathophysiology of electrocution remains unknown. For example, it is unclear if the high voltage electrical current, which passes through the chest, causes fatal cardiac arrhythmias. Reports by execution witnesses, (36) as well as clinical observation of electrical burn victims provide anecdotal evidence that this is not the case. (37) It is also unclear whether the electric current causes contraction and paralysis of the respiratory muscles, which, if the inmate were still conscious, would amount to suffocation. There is also no evidence to support the notion that the inmate is rendered instantly senseless by the current flow through the scalp electrode. There is, however, substantial evidence that the inmate heats up significantly during the electrocution: a "burn ring on [the] head" and a burn on the right leg, up to eight by ten inches, are routinely...

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