Physician Participation in Lethal Injection

Abstract

On April 1, 2019, in Bucklew v. Precythe, the United States Supreme Court rejected a Missouri death-row inmate’s claim that executing him by the State’s lethal injection protocol would violate the Eighth Amendment’s ban on “cruel and unusual punishment” because blood-filled tumors in his head, neck, and throat could rupture, causing him to choke and suffer “prolonged” and “excruciating pain.” In essence, the Court found that Bucklew failed to establish “a feasible and readily implemented alternative method” of execution because he provided so few facts about nitrogen gas, the alternative that Bucklew suggested. In its argument against Bucklew’s claim, the State emphasized that experienced medical personnel, including a board-certified anesthesiologist, would be utilized during the execution to ensure that Bucklew would not face a “substantial risk of severe pain.” Bucklew’s medical expert countered strongly with compelling evidence that Bucklew would suffer greatly. Bucklew is far from the first capital case to rely on physicians’ contributions in the execution process. Indeed, physicians have been participating in executions for more than a century. This participation is particularly troublesome given the wide range of unresolved problems created by lethal injection, including drug shortages and untested drugs and protocols. The American Medical Association and other medical organizations have turned a blind eye to this reality or they have blamed the legal system for the current state of affairs. This commentary contends that whatever moral or professional credibility the medical community fears it will lose by engaging in a discussion of physician involvement in lethal-injection executions is already imperiled by the increasingly apparent divergence between the community’s words and its actions.

JEL Classification: C1, C10, C11, C15, C18, C55, C8, C80, C9, C90, Y1, Y10