Other states are being more creative, trying to obtain lethal drugs through clandestine backchannels, a practice that has called into question the purity of the medications being used. On March 26 a judge in Oklahoma ruled that the state could no longer keep secret the identities of the suppliers of lethal injection drugs, acknowledging that without knowing the source of the drugs, prisoners were denied the right to know, and potentially question, how they would be put to death.
As prisoners continue to die with varying degrees of suffering and companies restrict the use of their compounds, the lethal injection cocktail will continue to evolve, leading some to wonder if this slapdash mixing and matching of chemicals constitutes impermissible research on inmates. Seema Shah, a lawyer and bioethicist at the National Institutes of Health, pointed out in her 2008 study that gathering systematic data about lethal injection would require setting criteria for relevant evidence, measuring variables that may make the condemned more or less likely to experience a quick and painless death, and using statistical methods to determine the relevant number of test subjects. Put simply, to adequately reform lethal injection, it has to be studied—but given our country’s troubled history of experimenting on inmates, doing so is ethically and legally problematic.
From 1913 to 1951, Leo Stanley, chief surgeon at San Quentin, performed a wide variety of experiments involving testicular implants. He would take the testicles out of executed prisoners (or goats) and surgically implant them into living prisoners. During the 1950s more than 100 inmates in the Ohio state prison system were injected with live cancer cells so researchers could study how the human body reacted to them. A decade later dozens of pharmaceutical companies tested scores of experimental drugs at Holmesburg Prison in Philadelphia. It may seem hard to believe, but as Shah writes, prior to the early 1970s, “approximately 90% of all pharmaceutical research was conducted on prisoners.”
As news of this reprehensible practice spread, several states and the Federal Bureau of Prisons took the drastic step of banning research on prisoners altogether, citing concerns of “exploitation, secrecy, danger and the impossibility of obtaining informed consent.” Some state laws have very broad definitions of research and may prohibit any “health-related experimental procedure.” It’s unclear if lethal injection could be successfully challenged using this precedent, but legal groups are certainly considering it.
Another option, which may be gaining traction, was proposed in a column for USA Today by Joel Zivot, an assistant professor of anesthesiology and surgery at Emory. He called for a moratorium on the use of all anesthetic agents for lethal injection. While that stance wasn’t particularly controversial, the line that followed was: “If the state is inclined to execute, it might be the time again to take up hanging, the electric chair, or the bullet.” At first blush I thought he was being facetious, but after speaking with him, I think he may be on to something.
Firing squads have traditionally consisted of five volunteer marksmen, four of whom receive rifles with live rounds while a fifth rifle contains a blank so no single member can know that he shot a fatal bullet. The marksmen are hidden from both the inmate, who is blindfolded and strapped to a chair, and from the witnesses. Using a stethoscope, a state official—in Utah it was a physician—finds the precise location of the prisoner’s heart and places a bull’s-eye over it. After a signal from the warden, the marksmen shoot.
Whether this is the least painful option is hard to say. In one of the few documented experiments associated with shooting, a man in Utah allowed doctors to conduct an EKG during his execution. The EKG showed that the heart was beating nearly three times its normal rate before shots were fired, and when the bullets entered his heart, it went into a four-second spasm, followed by a 15-second interval of uniform electrical activity that included a second spasm. Complete electrical silence followed.
A compelling case can be made that based on efficacy, diffusion of responsibility, and inexpensiveness, death by firing squad is a better option. (Or perhaps the guillotine.) Some organs would remain intact for donation, and although it might appear grisly, it’s quick, and it is the only method of execution for which we already train people. Interestingly, in states that have offered both shooting and hanging—which also fulfills many of the above criteria—inmates usually opt for the firing squad. One could argue that if properly done, lethal injection would be more humane than either of these methods, but we can no longer expect that it will be properly done.
At some point during our conversations, most of the experts I spoke with invoked the oft-quoted saying that you can judge a society by the way it treats its most vulnerable, which includes convicted murders. So does that mean we should let physicians help carry out capital punishment? As a doctor, I believe the answer is no. We’re members of a profession that’s committed to preserving life when there is hope of doing so. What’s taking place across the United States, shrouded in secrecy, is not medicine. The use of a physician’s clinical acumen for purposes other than promoting an individual’s health and welfare will ultimately erode public confidence in our profession, and the American Medical Association should not waver on its stance: Physician participation in lethal injection is a violation of the fundamental duty to do no harm.
If you disagree with me, if you believe that capital punishment is a fact of American life and more harm is being done because doctors are withholding expertise, it’s important to know that in 2010, the American Board of Anesthesiology voted to revoke the certification of anesthesiologists who participate in executing a prisoner by lethal injection. Facilitating capital punishment would effectively ruin the career of any physician who openly attempted to do so. So it appears we’re at an impasse, a sad place in our country’s history where law enforcement officials joke about trading lethal injection drugs for football tickets and dump leftover chemicals into the bodies of executed prisoners, and where death by firing squad can reasonably be considered an improvement on the status quo.
Arguments for and against physician participation in lethal injection often get conflated with arguments about the broader question of the morality of the death penalty, but that’s not what this is about. I am against capital punishment, but I understand that it’s not going away anytime soon and we must figure out a way to minimize suffering as long as it continues. Because of the breathtaking incompetence of state governments and prison systems, we can no longer rely on lethal injection as a means of execution. Until the American Board of Anesthesiology and the American Medical Association collectively reverse their position banning physician involvement—and there’s no indication they will (or should)—we must seriously consider a return to the firing squad.
*Correction, March 28, 2014: The caption for the second image in this article originally misstated that it showed an execution by firing squad in 1806. It shows a re-enactment of an execution. (Return.)