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The Executioners
By ERIC LYTTLE
On Oct. 14, the state of Ohio is scheduled to execute Death Row inmate Richard Cooey by injecting a lethal three-drug combination through several feet of tubing into a hollow IV needle inserted directly into his vein. The state mandates that the killing be done “quickly and painlessly.”
There’s one problem, though. The medical professionals best suited to carry out the process want no part of it.
There’s a confounding contradiction in the Ohio Revised Code.
On the one hand, the state courts and legislature support the death penalty as an apparent public good, a deterrent to society’s most heinous crimes. Courts at both the state and federal levels have consistently ruled in favor of capital punishment in Ohio and the 37 other states that allow the death penalty.
What’s more, Ohio has deemed lethal injection the only humane way to kill a Death Row inmate since 2001, when Gov. Bob Taft signed House Bill 362, eliminating the electric chair as a form of punishment. Section 2949.22 of the Ohio Revised Code states, “a death sentence shall be executed by causing the application to the person, upon whom the sentence was imposed, of a lethal injection of a drug or combination of drugs of sufficient dosage to quickly and painlessly cause death.”
In Ohio, that lethal combination of drugs includes two 40 cc syringes of sodium thiopental, an anesthetic that is intended to render the victim unconscious, followed by two 25 cc syringes of pancuronium bromide, which paralyzes the condemned person, preventing him from breathing, moving, communicating or even making a facial expression. The third drug administered is a 50 cc syringe full of potassium chloride, which stops the heart.
The process is, for all intents and purposes, a medical procedure, and state law dictates that only certain qualified and licensed members of society can receive, prepare and deliver the controlled substances. The Ohio Department of Rehabilitation and Correction execution protocol states, “Medical personnel, first and foremost, must be qualified under Ohio law to be able to prepare and administer intravenous drugs and/or be qualified to start an IV.”
The drugs, the syringes, the IV lines all are identical to those used in hospitals daily.
Yet strangely, another part of the Ohio Revised Code makes it all but illegal for any member of the medical profession to take part in the state’s execution procedure.
Section 4731.22 permits the state medical board to “limit, revoke, or suspend an individual’s certificate to practice, refuse to register an individual, refuse to reinstate a certificate, or reprimand or place on probation” a licensed medical professional for a number of infractions, including a “violation of any provision of a code of ethics of the American medical association, the American osteopathic association, the American podiatric medical association, or any other national professional organizations that the board specifies by rule.”
And, almost without exception, every medical association in the country specifically decries its members’ participation in state-sponsored executions as a direct violation of the profession’s guiding “first do no harm” principle of the Hippocratic Oath.
The largest of these, the American Medical Association, resolves, “A physician, as a member of a profession dedicated to preserving life when there is hope of doing so, should not be a participant in a legally authorized execution.” It further defines participation as “prescribing or administering” drugs used in an execution, “monitoring vital signs,” “attending or observing an execution” or “rendering technical advice regarding execution.”
Most others have followed suit, including the American Nurses Association, the American Public Health Association, the American Society of Anesthesiologist and the American Osteopathic Association. Curiously, even the Society of Correctional Physicians, which represents physicians who provide health care to prisoners, states in its code of ethics that “the correctional health professional shall…not be involved in any aspect of execution of the death penalty.”
But laws are little more than black words on white pages unless they’re enforced and, to date, no member of the medical profession has ever been subject to discipline by the Ohio Medical Board for participating in a state-sponsored execution. In fact, the Ohio Medical Board has seemingly taken a head-in-the-sand approach to the issue.
“We don’t have an opinion on state-sponsored execution,” said Joan Wehrle, the board’s executive staff coordinator. “The topic just hasn’t come up for discussion before the board.”
In practice, however, the apparent legal paradox has made life tough for the Ohio Department of Rehabilitation and Correction.
The ODRC’s execution team consists of 12 to 15 members, of which “three to four” make up the team’s medical staff, according to department spokesperson Andrea Carson. None of those three to four are physicians or nurses; instead, they’re certified Emergency Medical Technicians, Carson said, and all are ODRC employees.
The National Association of Emergency Medical Technicians, by the way, has an ethics code as well, which states: “(NAEMT) is strongly opposed to participation in capital punishment by an EMT, Paramedic or other emergency medical professional. Participation in executions is viewed as contrary to the fundamental goals and ethical obligations of emergency medical services.
With all the legal and ethical paradoxes they face, it should come as no surprise that the identities of the ODRC execution-team members are closely guarded.
“These folks, in my opinion, perform one of the most difficult tasks of any public servant,” said Greg Trout, chief legal adviser for the DRC. “Capital punishment is part of the law of the state of Ohio, and the Ohio Department of Rehabilitation and Correction is charged with carrying that out. At some point or other, these volunteers became aware of the need to fulfill our legal obligation, and they do so to demonstrate a measure of compassion and dignity with respect to the man who is about to lose his life, as well as to the witnesses and the families of the victims.”
Maintaining their anonymity, Trout said, is a necessary part of being able to carry out the process effectively.
“The concern is that if we turned the spotlight on them, the negative publicity that could come to them could impact the role they take,” Trout said.
“Their anonymity extends even throughout the institution. The inmates and some employees at Lucasville don’t know who they are. In one case, the spouse does not even know this individual is a member of the team.”
The medical preparations, including inserting the IV lines into the inmate as well as delivering the series of lethal injections, take place in a room adjacent to the death chamber, outside the view of the witnesses.
Though no MDs, DOs or registered nurses take part in Ohio’s execution process, Trout suggested their presence would be welcome, even as he defended the execution team’s current makeup.
“We use people who are qualified to prepare and administer intravenous drugs,” Trout said, “and we feel comfortable with the competence of our team members. But we’re always looking for ways to improve and learn. And if, at some point, we came across a physician who was willing to participate and is not suspected of having an agenda that is at odds with what we’re trying to accomplish, we’d certainly consider them. But they’re not exactly filling out applications and sending in resumés.”
The obvious concern is that the state is relegated to using EMTs, whose medical training and expertise fall decidedly below that of physicians and nurses, to oversee a most stressful and difficult procedure, wrought with controversy and possible pitfalls. In addition to the intensity of the moment—involving the death of a fellow human being—Death Row inmates present a number of unique difficulties as well, such as longtime IV drug use, or obesity from years of inactivity in a cell, both of which make vascular access more problematic. And most aren’t cooperative patients.
Twice in the past two years, that medley of circumstance has conspired to cause problems in the execution process in Ohio.
In May 2006, medical technicians struggled to find a usable vein to execute convicted killer Joseph Clark. Then, once the IV was inserted and the drugs began to be administered, it quickly became apparent something was wrong. Clark lifted his head and said, “It don’t work,” five times, according to witnesses, before prison officials temporarily halted the execution and closed the curtain. Apparently, the chosen vein had collapsed, and the drugs were being injected into his skin.
Medical staff struggled for more than 30 minutes behind the curtain to find another vein, and witnesses reported hearing “moaning, crying out and guttural noises” in the interval. Reports say Clark even requested that the poison be administered orally rather than continue suffering as staff searched for other IV locations. Eventually, the curtain was reopened—with Clark unconscious—and the execution was completed.
Then, in May 2007, prison EMTs took more than 70 minutes to find a usable vein in Christopher Newton, whose obesity complicated matters. Newton, who reportedly laughed through the struggle, was even given a bathroom break during the search for a vein. The process, which typically should take little more than 15 minutes, took nearly two hours from start to finish.
Both cases arguably stretched Ohio’s legal definition of “quickly and painlessly.”
And now, attorneys for Richard Cooey—scheduled to become Ohio’s 27th person to be executed in Ohio since Wilford Berry, “The Volunteer,” was killed in 1999—have fired a warning shot across the state’s bow that this, too, may be a problematic case. Cooey, through the Ohio Public Defender’s office, filed suit against the state Aug. 4, stating that, with his particular medical circumstances, being executed under Ohio’s current protocol would violate his rights to humane treatment.
Cooey, convicted in 1986 of raping and murdering two University of Akron coeds, claims his “morbid obesity” (he’s 5 feet, 7 inches tall and weighs 267 pounds) increases the risk that IV access will be problematic. In addition, the suit claims Cooey has been receiving the drug Topamax for migraines for years, which, in the opinion of a sworn medical expert, may cause a resistance to the barbiturate that is the first drug administered in the lethal injection process.
“One of the pieces,” said Cooey’s lead attorney, Kelly Schneider, “is questioning whether the people who administer the protocol are trained, experienced and qualified to warrant them proficient to deal with this situation.”
“We’re not arguing that he’s too fat to be executed,” Schneider said. “We’re saying there need to changes to the current protocol. We’re trying to avoid what’s happened to Joe Clark and Christopher Newton.”
The case is pending. Cooey’s clemency hearing is scheduled for Aug. 25.
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The following are comments from the readers. In no way do they represent the view of theotherpaper.com.
Dudley Sharp wrote on Aug 15, 2008 1:18 PM:
THE MEDICAL/ETHICAL DILEMMA: Solved
Medical groups cite that there is an ethical conflict for participation in the lethal injection process, because medical professionals have a requirement to "do no harm".
Those ethical codes pertain to the medical profession, only, and to patients, only. Judicial execution is not part of the medical profession and death row inmates are not patients.
Doctors and nurses can be police and soldiers and can kill, when deemed appropriate, within those lines of duty and without violating the ethical codes of their medical profession. Similarly, medical professionals do not violate their codes of ethics, when acting as technical experts, for executions, in a criminal justice procedure.
Physicians are often part of double or triple blind studies where there is hope that the tested drugs may, someday, prove beneficial. The physicians and other researchers know that many patients, taking placebos or less effective drugs, will suffer more additional harm or death because they are not taking the subject drug or that the subject drug will actually harm or kill more patients than the placebo of other drugs used in the study.
Physicians knowingly harm individual patients, in direct contradiction to their "do no harm" oath.
For the greater good, those physicians sacrifice innocent, willing and brave patients. Of course, there have been medical experiments without consent and, even, today, they continue ("Critical Care Without Consent", Washington Post, May 27, 2007; Page A01).
The greater good is irrelevant, from an ethical standpoint, if "Do no harm" means "do no harm". Physicians knowingly make exceptions to their "do no harm" requirement, every day, within their profession, where that code actually does apply. And, they should. There are obvious moral and ethical nuances and we should consider and pay attention to them, as is done within the medical profession.
The "do no harm" has no ethical effect in a non medical context, because this ethical requirement is for medical treatments, only, and for patients, only.
For those who distort the Hippocratic oath, I would suggest they read the original, classic versions, which only prohibits abortion and euthanasia., two practices commonly accepted by many physicians.
The acknowledged anti death penalty editors of The Public Library of Science (PLoS) Medicine agree. They write:
"Execution by lethal injection, even if it uses tools of intensive care such as intravenous tubing and beeping heart monitors, has the same relationship to medicine that an executioner's axe has to surgery." ("Lethal Injection Is Not Humane", PLoS, 4/24/07)
The PLoS Medicine editors have made the same point many of us have been making - similar acts and similar equipment do not establish any equivalence or connection.
There is no ethical connection between medicine and lethal injection. Therefore, there is no ethical prohibition for medical professionals to participate in executions.
To put it clearly: The execution of death row inmates is not equivalent or connected to the treatment of patients.
Is this a mystery?
Obviously, execution is not a medical treatment, but a criminal justice sanction. The basis for medical treatment is to improve the plight of the patient, for which the medical profession provides obvious and daily exceptions. The basis for execution is to carry out a criminal justice sentence where death is the sanction.
Justice, deterrence, retribution, just punishments, upholding the social contract, saving innocent life, etc., are all recognized as aspects of the death penalty, all dealing with the greater good.
Are murderers on death row willing participants? Of course. They willingly committed the crime and, therefore, willingly exposed themselves to the social contract of that jurisdiction.
Lethal injection is not a medical procedure. It is a criminal justice sanction authorized by law. Therefore, there is no ethical conflict with medical codes of conduct and medical personal participating in executions.
Any participation in executions by medical professionals should be a matter for their own personal conscience. In fact, 20-40% of doctors surveyed would participate in the execution process.
A side note:
40,000 to 100,000 innocents die, every year, in the US because of medical misadventure or improper medical treatment. (2)
Do no harm? The doctor doth protest too much, methinks.
There is no proof of an innocent executed in the US since 1900. "