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285 Chapter 14 To Do No Harm Medicine and the Death Penalty in England and Texas Norwood Andrews T he “medicalization” of the death penalty, by the 1990s and early 2000s, was both a well-developed part of ongoing practice and a leading theme of the perennial debate surrounding the practice. Spurred by legislative debates and continuing litigation over the use of legal injection, advocates of abolition brought greater publicity to the extent of physician participation in the carrying out of executions and the acquiescence in this degree of involvement by the medical profession more generally.1 Physicians and medical ethicists contributed their own reflections on this issue, sometimes noting the failure of the profession as a whole to constrain effectively its individual members .2 State medical associations and the AMA all proscribed the involvement of doctors in putting condemned prisoners to death, but in almost all cases the rules were intended mainly to protect the associations themselves from being linked to the practice, rather than to ensure that no doctors were involved.3 Critics of medicalized execution protocols implied that the development compromised medical ethics in disturbing new ways, linking it to a broader narrative of professional decline. In fact, the history of the death penalty in modern Western civilization was always connected to the history of medicine in various ways, and the fate of capital punishment in the twentieth century was no exception to the rule. While contemporary medical techniques for determining criminal responsibility and executing condemned criminals might be new in their particular details, in a larger sense they are neither unprecedented nor unanticipated within the medical, legal, and political realms. The same kinds of advances in professional knowledge, and the same kinds of professional organizations, could serve to promote capital punishment in one historical context and help abolish it in another. While the identification of Texas as the death penalty capital of America usually rests on its disproportionately large share of executions carried out, the claim also has a strong historical basis. Thestatewasthefirsttoperformalethalinjection, and it developed methods and protocols which others would also employ (including the use of the hospital gurney and other mimicry of medical procedures). Less heavily publicized (although still notorious, and perhaps equally important) was the state’s pioneering use of psychiatric testimony in sentencing convicted defendants to the gurney. In part because the controversies and 286 Norwood Andrews news coverage surrounding these practices are so familiar—part of the background noise of life in Texas, even for the vast uninvolved majority of the public—a comparative historical perspective may prove helpful in gauging their significance. In the case of England, many of the same developments that characterized capital punishment in Texas were at least anticipated and discussed, but ultimately history took a very different path. I argue that the comparison bears out the critical role of medicalization in determining the fate of capital punishment—and that the historical divergence between the cases studied reflects a divergence between medical professions in their social and political contexts. I. In Albion, known for its fatal tree and “Bloody Code,” the abolition of capital punishment was the work of many generations. The rise of commerce and industry, agricultural enclosure, and related social unrest coincided with a chaotic proliferation of capital-offense statutes—and a rising crimson tide of dispatched offenders. Then, as middle-class reformers gained parliamentary influence, capital crimes were pared back and the ritual of hangings in public was ended (although whether the accompanying cultural shift was toward humanitarianism or sentimental hypocrisy remains in dispute).4 But by blunting the momentum for abolition, these limitations helped sustain the practice.5 After the 1860s, death by hanging remained the prescribed penalty for murder for very nearly a full century. At a distance, with the passing of decades since the last legal executions were carried out, and with the death penalty now banned by the European Convention of Human Rights, abolition in twentieth-century Britain may now be half-remembered as a necessary response to social transformation and shifting values. But any closer look at the political battles over abolition shows otherwise—that the outcome was anything but inevitable. “It is quite possible,” in the view of one magazine writer, “that, had there not been a resurgence of abolitionism following the Second World War, Britain would have gone down the same path as the United States,” with capital punishment perpetuated once again by being modified and brought up to date.6 The critical moment, in this...

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