THE ROLE OF STATE MEDICAL BOARDS IN REGULATING PHYSICIAN PARTICIPATION IN EXECUTIONS Ty Alper ABSTRACT tributed to an increased call for the involvement in execu- The recent increase in calls for physician participation in tions of trained medical professionals, namely physicians. lethal injection executions is likely to place a spotlight on state medical boards, the only entities empowered to dis- Indeed, lawyers for death row inmates routinely argue that cipline doctors for ethical violations. This article begins skilled anesthetic-monitoring is an essential component of by recounting the history of physician participation in a constitutional three-drug execution protocol, particular- lethal injection executions, as well as the opposition of ly where one of the three drugs is a neuromuscular block- most medical professional organizations to the practice. ing agent that paralyzes the condemned inmate during the The current state of the law suggests, however, that the execution. Doctors are also necessary when peripheral ve- role of state medical boards is quite circumscribed, at nous access is too difficult to achieve; gaining intravenous least in the majority of states with death penalty statutes access through a central line in most instances requires that appear to contemplate some level of physician par- a physician. Many states do employ doctors in various ticipation in executions. In order to further determine capacities, though few, if any, rely on doctors to perform the legality of medical board action, a comprehensive the kind of anesthetic monitoring requested by lawyers for study was conducted of the statutes and regulations gov- death row inmates. Other states, however, resist calls for erning state medical boards in all 50 states. The study physician participation, claiming that doctors are unable reveals that only a handful of states – and only seven to participate and any court order that they do so will lead death-penalty states – explicitly incorporate the AMA’s to a de facto moratorium on the death penalty. ethical guidelines into their own state ethical codes. The study concludes by suggesting that, where doctors who State medical boards find themselves in the middle of this participate in executions are doing so in order to relieve political and legal debate, yet the boards have thus far fa- pain and suffering, it is not clear that a state medical vored a decidedly hands-off approach. The vast majority board should intervene even in the rare instance when it have declined to take an explicit public position on the would be legally possible to do so. right of doctors to participate in executions and few, if any, have seriously investigated complaints of physician partici- INTRODUCTION pation that have been brought to their attention. In recent years, two related phenomena have contributed to the growing debate about physician participation in Recent events, however, suggest that calls for medical executions in the United States. First, legal challenges to board action may increase. Earlier this year, for example, a states’ lethal injection practices have raised serious ques- national abolitionist organization founded by Sister Helen tions about the qualifications of execution team members Prejean launched a campaign to persuade medical licens- to perform lethal injections using medical equipment and ing boards in each state to declare it unethical for doctors dangerous controlled substances. Second, a series of high- to participate in executions. The stated goal of the cam- profile botched executions and one botched execution at- paign is to “make it impossible for states to carry out their tempt have further exposed lethal injections as far more own protocols for capital punishment.”1 problematic and prone to error than most people had pre- viously assumed them to be. These phenomena have con- As calls for medical board involvement increase, the need page 16 journal of medical licensure and discipline vol 95 number 3 2009 for legal clarity on the medical boards’ role is apparent. States generally do not dispute that an un-anesthetized ex- This article begins by recounting the history of physician ecution – using these particular drugs – would constitute participation in lethal injection executions, as well as the cruel and unusual punishment under the Eighth Amend- opposition of most medical professional organizations to ment.6 Lawyers defending states’ lethal injection proce- the practice. The ethical guidelines of those membership dures do dispute, however, how likely it is that the delivery organizations, however, are not themselves enforceable. of the first drug, the anesthetic, will somehow go awry, and Only the state medical boards have the power to discipline this is typically where the question of the participation of doctors for alleged ethical violations. The article next stud- medical professionals enters the equation. ies the current legal landscape with respect to the role of state medical boards in disciplining doctors who partici- Lawyers for death row inmates have generally taken the pate in executions. The current state of the law suggests position that, given the degree of skill needed to adequate- that, in most instances, the role of state medical boards is ly deliver, monitor, and maintain anesthesia, as well as the quite circumscribed, at least in the majority of states with widely publicized problems with the administration of an- death penalty statutes that appear to contemplate some esthesia in the lethal injection setting, states that insist on level of physician participation in executions. In those using the three-drug formula must employ the services of states, courts are likely to conclude that the medical board highly-trained medical personnel – often, but not always, does not have legal authority to discipline doctors who par- doctors – in order to ensure that the risk of severe pain to ticipate in lawful, state-sanctioned executions. Moreover, the person being executed does not become “substantial.”7 a comprehensive study of the statutes and regulations gov- If the states do not want to employ medical professionals, erning state medical boards in all 50 states reveals that only the argument goes, they should switch to a different proto- a handful of states – and only seven death-penalty states col for lethal injections that would not require skilled anes- – explicitly incorporate the AMA’s ethical guidelines into thetic monitoring.8 However, as long as states insist on the their own state ethical codes. Finally, despite the positions three-drug formula, the litigation position taken by lawyers of most national medical associations, there are compel- for death row inmates is that only the supervision of quali- ling reasons for medical boards to refrain from intervening fied medical personnel can reduce the risk of severe pain in this debate. Where doctors who participate in execu- to a constitutional level.9 tions are doing so in order to relieve pain and suffering, it is not clear that a state medical board should intervene Lawyers representing states and defending the lethal in- even in the rare instance when it would be legally possible jection status quo, however, have resisted mandated physi- to do so. cian participation on the grounds that doctors are unable to participate. “The goal of death penalty opponents,” BACKGROUND claimed a spokesman for the California Attorney General States that employ lethal injection typically use a three- in 2006, “is to get a court order that says that lethal injec- drug formula to carry out executions. The first drug in the tions can only be administered by licensed professionals, formula is intended to anesthetize the inmate; the second because the ethics of medical professionals prohibit them one paralyzes the inmate; and the third drug stops the in- from participating.”10 mate’s heart, killing him or her.2 One primary legal chal- lenge to this method rests on the allegation that most states The argument that a physician participation requirement do not employ adequate safeguards to ensure that the per- would lead to abolition of the death penalty has surface son being executed is properly anesthetized before the sec- appeal because several national medical associations have ond and third drugs are administered.3 Because the second expressed their belief that physicians should not partici- drug in the three-drug formula paralyzes the inmate, the pate in executions. The American Medical Association concern is that an inadequately anesthetized person “may (AMA) has, since 1980, declared the participation of doc- have the sensation of paralysis without anesthesia . and tors in executions to be a clear violation of medical eth- may feel the burning of the highly concentrated” third ics. The AMA’s policy, last updated in 2005, defines “par- drug, potassium chloride.4 In such a state, the paralyzed ticipation” broadly, to include even “consulting with or inmate is unable to indicate to correctional staff that he or supervising lethal injection personnel.”11 The American she is experiencing the suffocating effects of the paralyzing Society of Anesthesiologists (ASA) adopted the AMA po- drug and the excruciatingly painful effects of the potas- sition, and its then-president advised members to “steer sium chloride.5 clear” of participation in lethal injections.12 The So- journal of medical licensure and discipline vol 95 number 3 2009 page 17 ciety of Correctional Physicians has for years dictated that cause of state laws that shield the identities of doctors and the “correctional health professional shall . not be in- restrict public access to lethal injection protocols.20 As a re- volved in any aspect of execution of the death penalty.”13 sult of these laws, it is very likely that doctors participate in The media has well documented the positions of these executions to a far greater extent than is currently known. national organizations.14 However, in addition to the anonymous participating doc- tors interviewed for a New England Journal of Medicine The AMA’s position on physician participation is not, how- article in 2006,21 recent litigation challenging lethal injec- ever, legally enforceable.