Health Professionals and Lethal Injection Execution in the United States

He was strapped down . . . we couldn't get the intravenous line in to his arm. . . . Then the doctor got the line in; he used an alcohol swab to sterilize the skin and I said "What's the point."

Burl Cain, Warden of Angola Penitentiary (Louisiana, 1996) ¹

I. Introduction

When the state of Texas executed Charlie Brooks, Jr. with an overdose of drugs in 1982, it was the first time that a prison medical staff was utilized to carry out a death sentence in the United States. Because for many Americans, the focus of the debate regarding the death penalty was simpl382y that the Eighth Amendment required that an "execution be imposed more humanely than it had in the past," ² this lethal injection was viewed by some as a victory. Many abolitionists, however, feared that the use of simple injection as a method of execution could make the death penalty more palatable to juries ³ and easier for the public to accept, ⁴ which would increase the incidence of capital punishment. Current statistics illustrate that such fears and predictions regarding the far-reaching implications of this new "humane" method of execution were well-founded. Of the 143 executions from 1976 to 1990, only fifty-four, or roughly 38 percent, were by lethal injection. ⁵ In contrast, in the next ten years, 606 people were executed. Lethal injection was the method used in 530, or about 87 percent, of these cases. ⁶ To date, all executions in 2002 have been by lethal injection. ⁷

While the US Supreme Court has been actively involved in judicially regulating the death penalty since 1976, ostensibly to ensure a "fair" determination that an execution was properly decided upon, a review of several of the more significant judicial decisions ⁸ supports the conclusion that the Supreme Court's death penalty jurisprudence has evolved into a "pro-death penalty self-fulfilling constitutional construct." ⁹ Nevertheless, the evidence indicates that the popularity of the death penalty and the dramatic increase in the number of executions in recent years has been "driven largely by the increase in lethal injection execution" ¹⁰ and not the decisions of the high court. In fact, it is more likely that the availability of lethal injection, and its perception of painless efficiency, has catalyzed many recent pro-capital punishment judicial decisions. ¹¹

A state cannot execute anyone by lethal injection, however, without utilizing medical knowledge, techniques, equipment, and, if not licensed people, then people trained by licensed professionals. In fact, although most health professions have issued position statements that officially denounce the participation of their members, ¹² physicians, nurses, and other medically trained personnel continue to play a vital role in lethal injection executions in the United States. ¹³ Perhaps this is because after more than twenty years of expert opinions and official denunciations, there is still no agreed upon definition of what constitutes "participation in an execution," nor any effective means of monitoring health professionals and enforcing ethical standards.

For example, during the first execution by lethal injection, Dr. Ralph Gray, medical director of the Texas Department of Corrections, examined Charlie Brooks' arms in order to ascertain whether his veins were adequate and then supervised the technicians who administered the injection. ¹⁴ The drugs used to kill Brooks came from Dr. Gray's "prison drug supply." ¹⁵ Nevertheless, despite the fact that the American Medical Association (AMA) issued an opinion in 1980 that physicians should not participate in capital punishment, under the AMA's own interpretation of its position paper, Dr. Gray did nothing wrong or unethical. According to a statement issued at the time, because Dr. Gray did not "compound the substance or inject the medication," he did not "participate in the execution." ¹⁶ Likewise, the Oklahoma Corrections Department medical director's interpretation of participation also did not include ordering the...