Journal of the American Medical Association 
COMMENTARY 
By Lee Black, JD, LLM and Robert M. Sade, MD

Legal exe­cu­tion by lethal injec­tion has made nation­al head­lines dur­ing the past 2 years because pris­on­ers have argued that it pos­es an unnec­es­sary risk of pain as cur­rent­ly per­formed and there­fore con­sti­tutes uncon­sti­tu­tion­al cru­el and unusu­al pun­ish­ment. The most wide­ly used method of lethal injec­tion, devel­oped by a physician,1 involves the intra­venous infu­sion of large dos­es of sodi­um thiopen­tal to induce deep sleep, pan­curo­ni­um bro­mide as a par­a­lyz­ing agent, and potas­si­um chlo­ride for car­dio­ple­gia. Lethal injec­tion was adopt­ed as a means of exe­cu­tion because it seemed more humane than oth­er meth­ods, but it is unclear what con­sid­er­a­tion was giv­en to the selec­tion of exe­cu­tion per­son­nel, the skills they need­ed, and the train­ing they might require. Recent court chal­lenges have revealed that drug dosages are not uni­form among the states, so wide dis­par­i­ties in lev­els of seda­tion may occur, and some inmates may have expe­ri­enced con­sid­er­able pain after potas­si­um chlo­ride infusion.2,3

The legal chal­lenges have also pub­licly exposed the par­tic­i­pa­tion of physi­cians in executions.4,5 A num­ber of states sus­pend­ed exe­cu­tions to reex­am­ine their methods6 and have con­sid­ered esca­lat­ing the role of physi­cians to meet con­sti­tu­tion­al chal­lenges. These events have raised ques­tions about the effect of pro­fes­sion­al eth­i­cal stan­dards on physi­cian par­tic­i­pa­tion in cap­i­tal pun­ish­ment and about the response of the med­ical pro­fes­sion to known instances of physi­cian involve­ment in executions. 

Lethal Injection and Medical Ethics. Currently 38 states allow the death penal­ty and, of those, 35 either require (n=17) or per­mit (n=18) physi­cian par­tic­i­pa­tion in exe­cu­tions. Lethal injec­tion is the pre­ferred method for exe­cu­tion in all 38 states and has account­ed for 83% of exe­cu­tions since 1976.4 Georgia law stip­u­lates that physi­cians who par­tic­i­pate in exe­cu­tions are not prac­tic­ing med­i­cine and there­fore can­not be dis­ci­plined by the Georgia Composite State Board of Medical Examiners.7 California and Missouri have attempt­ed unsuc­cess­ful­ly to recruit physi­cians to assist in lethal injec­tion. In California, 2 anes­the­si­ol­o­gists offered to assist but lat­er with­drew their offer8; in Missouri, after ques­tions were raised about the com­pe­tence of the physi­cian who had been assist­ing, appeals for addi­tion­al help went unanswered.9 North Carolina requires the pres­ence of a physi­cian at executions,10 but the North Carolina Medical Board recent­ly adopt­ed a pol­i­cy of dis­ci­plin­ing physi­cians for any ver­bal or phys­i­cal assis­tance in an execution.11 The North Carolina Department of Corrections chal­lenged this pol­i­cy, ask­ing a court to declare that par­tic­i­pa­tion in an exe­cu­tion is not the prac­tice of med­i­cine, even though it clear­ly requires med­ical knowl­edge and skills.12 Although the med­ical board is empow­ered to dis­ci­pline physi­cians for vio­lat­ing eth­i­cal stan­dards, the court con­curred with the Department of Corrections and enjoined the med­ical board from enforc­ing its policy.13

The inclu­sion of physi­cians in lethal injec­tion med­ical­izes cap­i­tal pun­ish­ment by mov­ing a process that has always been a func­tion of the penal sys­tem into the domain of med­i­cine. Other meth­ods of exe­cu­tion do not require direct physi­cian par­tic­i­pa­tion: hang­ing, fir­ing squad, and elec­tro­cu­tion have no med­ical­ly related elements.

Lethal injec­tion, how­ev­er, cer­tain­ly has ele­ments of med­ical prac­tice: inser­tion of intra­venous lines, Intravenous injec­tion of med­i­c­i­nal drugs, and mon­i­tor­ing vital signs. The chronol­o­gy of lethal injec­tion sug­gests that it was intend­ed mere­ly to sup­plant oth­er meth­ods of exe­cu­tion and that involve­ment of physi­cians was not orig­i­nal­ly con­tem­plat­ed. Some have sug­gest­ed, how­ev­er, that physi­cian involve­ment was inten­tion­al — their pres­ence may make exe­cu­tions palat­able and appear humane, reas­sur­ing observers and oth­ers that the inmate will die with min­i­mal suffering.14

The American Medical Association’s (AMA’s) Code of Medical Ethics pro­hibits involve­ment of physi­cians in exe­cu­tions, per­mit­ting only cer­ti­fi­ca­tion of death after some­one else has declared it.15 State laws and reg­u­la­tions requir­ing the par­tic­i­pa­tion of a physi­cian imply much more exten­sive involve­ment, includ­ing mea­sur­ing chem­i­cals, insert­ing intra­venous lines, inject­ing drugs, mon­i­tor­ing seda­tion, and inter­ven­ing if the pris­on­er does not die after injection.13,16 Healing the sick and alle­vi­at­ing suf­fer­ing is the pri­ma­ry role of physi­cians in US soci­ety. The cen­tral thread run­ning through the AMA’s Code of Medical Ethics is the physician’s oblig­a­tions to help and not to harm peo­ple. The result of an exe­cu­tion, how­ev­er, clear­ly harms the exe­cut­ed per­son with­out off­set­ting ben­e­fit— no ratio­nale can jus­ti­fy a dif­fer­ent con­clu­sion — so physi­cian par­tic­i­pa­tion in exe­cu­tions is man­i­fest­ly uneth­i­cal. Even if not prac­tic­ing med­i­cine, physi­cians are bound by med­ical ethics when using med­ical knowl­edge and skills and there­fore must not par­tic­i­pate in exe­cu­tions, whether or not par­tic­i­pa­tion is deemed med­ical practice.17

Some physi­cians who have par­tic­i­pat­ed in exe­cu­tions do not agree with this con­clu­sion; they view their role in cap­i­tal pun­ish­ment as con­sis­tent with their role as physi­cians— pre­vent­ing need­less pain or suf­fer­ing at the end of life.4 Although this argu­ment is log­i­cal and may seem com­pelling, it can­not over­ride the real­i­ty that lethal injec­tion unam­bigu­ous­ly caus­es the death of a human being. According to eth­i­cal stan­dards, physi­cians have no place in such pro­ceed­ings, even if their intent is to provide comfort.

Active Participation of Physicians in Executions
The iden­ti­ty of physi­cians who par­tic­i­pate in exe­cu­tions is typ­i­cal­ly held con­fi­den­tial by state author­i­ties. Nevertheless, a few such physi­cians have been publicly identified.

A Missouri physi­cian admits hav­ing par­tic­i­pat­ed in many exe­cu­tions. His tes­ti­mo­ny in the case of Taylor v Crawford clear­ly demon­strat­ed that the pres­ence and involve­ment of a physi­cian does not ensure a trou­ble-free execution.2 The dos­es of drugs he used were incon­sis­tent from case to case and were not always record­ed. He admit­ted that he was dyslex­ic and that he some­times con­fused the names of drugs.2 Most states will not dis­close the names of physi­cians who par­tic­i­pate in exe­cu­tions; in this case, the physician’s iden­ti­ty was revealed through inves­ti­ga­tion by the media, although the physi­cian denied par­tic­i­pa­tion when direct­ly confronted.5 After this dis­clo­sure, Missouri enact­ed a law to pro­tect the iden­ti­ty of exe­cu­tion­ers, includ­ing allow­ing civ­il suits against those who disclose.18

Not all physi­cians have been reluc­tant to reveal their identities.

A Georgia physi­cian per­mit­ted the use of his name in a med­ical jour­nal arti­cle and freely admit­ted his Involvement in exe­cu­tions, express­ing his belief that it was his duty to ensure as pain­less an exe­cu­tion as pos­si­ble, even when he knew he was vio­lat­ing eth­i­cal standards.4

In recent rev­e­la­tions in North Carolina, an iden­ti­fied physi­cian claimed that he was present at an exe­cu­tion but did not par­tic­i­pate, a role specif­i­cal­ly allowed by the North Carolina Medical Board.19 However, a court required the prison sys­tem to have a physi­cian in atten­dance to mon­i­tor the inmate’s lev­el of con­scious­ness. If the physician’s claims were true, the state may have vio­lat­ed the judi­cial­ly sanc­tioned agree­ment that per­mit­ted it to rein­state exe­cu­tions, or the Department of Corrections may have exag­ger­at­ed the physician’s Involvement to cre­ate the appear­ance of com­pli­ance with the court order.20 This case illus­trates the dif­fi­cul­ties that states may face in com­ply­ing with man­dat­ed physi­cian par­tic­i­pa­tion when physi­cians lim­it their roles based on ethical standards.

The 3 physi­cians men­tioned above in Missouri, Georgia, and North Carolina have pub­licly admit­ted their Involvement in lethal injec­tions. Other physi­cians have also appar­ent­ly assist­ed in exe­cu­tions, but state laws and poli­cies have hid­den their iden­ti­ties from pub­lic view. Presumably, these unnamed physi­cians fear pub­lic recrim­i­na­tion for their roles.

Do they have cause to fear puni­tive con­se­quences from other sources?

Medical Self-reg­u­la­tion. The med­ical pro­fes­sion polices itself through licens­ing boards and pro­fes­sion­al orga­ni­za­tions, such as med­ical soci­eties and hos­pi­tal med­ical staffs. Disciplinary actions by these groups may be report­ed to the National Practitioner Data Bank (NPDB), which could have seri­ous con­se­quences for a physician’s abil­i­ty to prac­tice med­i­cine. Information from the NPDB can lead hos­pi­tal med­ical staffs to deny prac­tice priv­i­leges, med­ical soci­eties to take action against mem­ber­ship, and licens­ing boards to take action against medical licensure.

Medical licens­ing boards ordi­nar­i­ly address ille­gal activ­i­ties of physi­cians and com­plaints relat­ing to patient care. Transgressions of oth­er kinds, includ­ing ethics vio­la­tions, usu­al­ly do not trig­ger dis­ci­pli­nary pro­ceed­ings. Executions are legal; there­fore, in states that require the pres­ence of physi­cians at exe­cu­tions, licens­ing boards — estab­lished by state law and qua­si-legal — are unlike­ly to take action against the licens­es of physi­cians who par­tic­i­pate. North Carolina is an excep­tion, as noted above.

Medical soci­eties are less con­strained than licens­ing boards. Societies that have incor­po­rat­ed eth­i­cal stan­dards into their rules or bylaws have wide lat­i­tude to take action against a physician’s mem­ber­ship. Although cer­tain pro­ce­dur­al stan­dards must be met, med­ical soci­eties are gen­er­al­ly free to act on eth­i­cal vio­la­tions and may be less hes­i­tant to speak out pub­licly. In August 2006, for exam­ple, the American Society of Anesthesiologists released a state­ment detail­ing the cur­rent sta­tus of lethal injec­tion. In the state­ment, the pres­i­dent of the soci­ety encour­aged anes­the­si­ol­o­gists to ​“steer clear” of participation.21

AMA pol­i­cy has pro­hib­it­ed physi­cian par­tic­i­pa­tion in cap­i­tal pun­ish­ment for near­ly 3 decades, and the AMA has peri­od­i­cal­ly reaf­firmed, revised, and pub­licly spo­ken out against vio­la­tion of this pol­i­cy. The AMA has gone beyond exhor­ta­tion, how­ev­er, by enforc­ing its long estab­lished pol­i­cy pro­hibit­ing par­tic­i­pa­tion in cap­i­tal pun­ish­ment. The AMA’s bylaws empow­er its Council on Ethical and Judicial Affairs (CEJA) to act on eth­i­cal trans-gres­sions. The Council on Ethical and Judicial Affairs gen­er­al­ly relies on the find­ings and deci­sions of courts and of state licens­ing boards as the basis for its dis­ci­pli­nary actions. However, because no court or board has tak­en action against physi­cians who have vio­lat­ed the pro­hi­bi­tion against par­tic­i­pat­ing in cap­i­tal pun­ish­ment, the AMA appoint­ed an inves­ti­gat­ing com­mit­tee to seek evi­dence of uneth­i­cal con­duct and to deter­mine if fur­ther action was war­rant­ed. The inves­ti­gat­ing com­mit­tee found such evi­dence and report­ed its find­ings to CEJA. After receiv­ing the committee’s report, CEJA ini­ti­at­ed dis­ci­pli­nary pro­ceed­ings, observ­ing strict pro­ce­dur­al due process,22 includ­ing con­fi­den­tial­i­ty of the pro­ceed­ings and find­ings, and devel­oped new evi­dence under its own pro­ce­dur­al rules. At the con­clu­sion of the process, CEJA revoked one physician’s mem­ber­ship in the AMA for par­tic­i­pa­tion in exe­cu­tion by lethal injection.

Conclusion 
Legislatures and courts may con­sid­er eth­i­cal stan­dards when delib­er­at­ing on var­i­ous issues and usu­al­ly look upon them favor­ably, but some­times do not take them seri­ous­ly. For exam­ple, courts have relied in part on the eth­i­cal stan­dards artic­u­lat­ed in the AMA’s Code of Medical Ethics when deter­min­ing the pro­pri­ety of physi­cian-assist­ed sui­cide and restric­tive covenants in prac­tice contracts,23,24 but have usu­al­ly dis­re­gard­ed med­ical ethics when per­mit­ting or requir­ing physi­cian par­tic­i­pa­tion in executions.

During pol­i­cy delib­er­a­tions, all par­tic­i­pants in reg­u­lat­ing the med­ical pro­fes­sion — fed­er­al and state gov­ern­ment, licens­ing author­i­ties, pro­fes­sion­al soci­eties, and indi­vid­ual physi­cians — should con­sid­er the spe­cif­ic role of physi­cians in soci­ety, which is pre­vent­ing and heal­ing ill­ness and reliev­ing suf­fer­ing. The core require­ment for that role is trust in the pro­fes­sion, which is advanced and pre­served by eth­i­cal prin­ci­ples. Any form of par­tic­i­pa­tion in caus­ing death by lethal injec­tion is uneth­i­cal because it vio­lates the physician’s role, there­by undermining trust.

Courts and leg­is­la­tures should not ask physi­cians to vio­late eth­i­cal stan­dards to solve prob­lems raised by legal chal­lenges. The penal sys­tem, not the med­ical pro­fes­sion, is respon­si­ble for find­ing a way to perform executions.

Physicians who are asked to assist in cap­i­tal pun­ish­ment should remem­ber that trans­gres­sions against eth­i­cal oblig­a­tions may evoke sanc­tions against their licens­es by state med­ical boards and elic­it dis­ci­pli­nary actions against mem­ber­ship by their medical societies.

Financial Disclosures: None reported. 
Additional Information: The man­u­script was reviewed by mem­bers of senior man­age­ment at the American Medical Association as well as by the current members 
of the Council on Ethical and Judicial Affairs.

REFERENCES
1. Denno DW. When leg­is­la­tures del­e­gate death: the trou­bling para­dox behind state uses of elec­tro­cu­tion and lethal injec­tion and what is says about us. Ohio St L J. 2002;63:63 – 260. 
2. Taylor v Crawford, 487 F3d 1072 (8th Cir 2007). 
3. Brown v Beck, No. 5:06-CT-3078‑H (ND NC April 7, 2006). 
4. Gawande A. When law and ethics col­lide: why physi­cians par­tic­i­pate in exe­cu­tions. N Engl J Med. 2006;354(12):1221 – 1229. 
5. Kohler J. Behind the mask of the exe­cu­tion doc­tor: rev­e­la­tions about Dr. Alan Doerhoff fol­low­ing judge’s halt of lethal injec­tion. St Louis Post Dispatch. July 30, 2006:A1.
6. Weinstein H. N.C. is the 11th state to halt lethal injec­tions: a judge blocks two exe­cu­tions until pro­ce­dures are changed. Los Angeles Times. January 26, 2007: A16. 
7. Ga Code Ann §17 – 10-42.1 (2006).
8. Amended Joint Pre-Hearing Statement, Morales v Woodford, No. 5:06-CV-00219-JF (ND CAL November 27, 2006). https://​www​.law​.berke​ley​.edu/​e​x​p​e​r​i​e​n​t​i​a​l​/​c​l​i​n​i​c​s​/​d​e​a​t​h​-​p​e​n​a​l​t​y​-​c​l​inic/. Accessibility ver­i­fied November 16, 2007. 
9. Kohler J. Diagnosis: death — Georgia doc­tor is will­ing to help with exe­cu­tions— but won’t be an exe­cu­tion­er. St Louis Post Dispatch. August 13, 2006:B1.
10. NC Gen Stat §15 – 190 (2004).
11. Capital pun­ish­ment. North Carolina Medical Board posi­tion state­ment. http://​www​.ncmed​board​.org/Clie…. Accessibility ver­i­fied November 16, 2007. 
12. Complaint. North Carolina Department of Corrections v North Carolina Board of Medicine, No. 07-CV-003574 (Sup Ct NC Wake March 6, 2007). 
13. Amended order grant­i­ng plaintiff’s request for declara­to­ry relief and deny­ing defendant’s motion to dis­miss. North Carolina Department of Corrections v North Carolina Medical Board, No. 07-CV-003574 (Sup Ct NC Wake October 1, 2007). 
14. LeGraw JM, Grodin MA. Health pro­fes­sion­als and lethal injec­tion exe­cu­tion in the United States. Hum Rights Q. 2002;24(2):382 – 423. 
15. American Medical Association. Ethical Opinion E‑2.06: Capital pun­ish­ment. In: Code of Medical Ethics of the American Medical Association. 2006 – 2007 ed. Chicago, IL: American Medical Association; 2006:19 – 20. 
16. Zitrin v Georgia Composite Board of Medical Examiners, No. 2005-CV-103905 (Sup Ct GA Fulton July 31, 2006). 
17. Council on Ethical and Judicial Affairs of the American Medical Association. Physicians in admin­is­tra­tive or oth­er non-clin­i­cal roles. https://​www​.ama​-assn​.org/​a​m​a​1​/​p​u​b​/​u​p​l​o​a​d​/​m​m​/​3​6​9​/​c​e​j​a​_​1​0​a​0​7.pdf. Accessibility ver­i­fied November 16, 2007. 
18. HB 820, 94th General Assembly, 1st Reg Sess (Mo 2007). 
19. Weigl A. Doctor details exe­cu­tion pro­ce­dure; med­ical ethics, state rules clash. News and Observer. May 22, 2007:B5.
20. Fooled him? a depo­si­tion indi­cates a fed­er­al judge’s order wasn’t fol­lowed dur­ing two exe­cu­tions last year: the muck grows deep­er. News and Observer. March 31, 2007:A24.
21. American Society of Anesthesiologists Web site. Message from the pres­i­dent: obser­va­tions regard­ing lethal injec­tion. https://​www​.asahq​.org/​a​b​o​u​t​-​a​s​a​/​n​e​w​s​room/. Accessibility ver­i­fied November 16, 2007. 
22. Council on Ethical and Judicial Affairs of the American Medical Association. Rules for review of mem­ber­ship. https://​www​.ama​-assn​.org/​a​m​a​/​p​u​b​/​c​a​t​e​g​o​r​y​/​1​6​8​4​8​.html. Accessibility ver­i­fied November 16, 2007. 
23. Washington v Glucksberg, 521 US 702,731 (1997).
24. Mohanty v St. John Heart Clinic, 225 Ill 2d 52,67 – 68 (2006).
 — — — — — — — —
Author Affiliations: Ethics Group, American Medical Association, Chicago, Illinois (Mr Black); and Institute of Human Values in Health Care, Medical University of South Carolina, Charleston (Dr Sade). Dr Sade is a for­mer chair of the AMA Council on Ethical and Judicial Affairs.

Corresponding Author: Lee Black, JD, LLM, Ethics Group, American Medical Association, 
515 N State St, Chicago, IL 60610 (lee.​black@​ama-​assn.​org).