Criminal Justice

SPECIAL TOPIC ARTICLE

Dr. Death? Professionalism, Virtue, and U.S. Physician Participation in the

Death Penalty

REBECCA L. WALKER∗

In the United States at present, the death penalty is a possible sentence in 31 out of 50 states, as well as within the military and for federal cases. In the U.S., numbers of executions are declining, in part due to moratoriums in place and challenges to execution by lethal injection. Participation by physicians in lethal injection executions has been steadfastly viewed by professional medical organizations as contrary to their ethical standards. However, physicians have participated in lethal injection executions, and the morality of the death penalty itself is a matter of intense social and political debate. Medical ethics commentators and professional organizations have typically held that the prohibition on physician participation in the death penalty is independent of the ethical status of the death penalty itself. This article argues that this view is untenable, and that it is tied to a view of professional role virtue that is similarly untenable. At the same time, it argues that, given the morally uncertain status of the death penalty, it is plausible that virtuous physicians may either refuse or choose to participate in some aspects of the death penalty.

Keywords: capital punishment, physician professionalism, virtue, lethal injection, professional ethics, death penalty, humane execution

In the United States at present, the death penalty is a possible sentence in 31 out of 50 states, as well as within the military and for federal cases. The punishment is typically reserved for intentional murder with aggravating factors, but crimes in some states or in the federal

system that, according to statute, can receive the death penalty include treason, espionage, aircraft hijacking, major drug trafficking, rape of a minor, or other crimes where a death results. In practice, no one has been executed in the U.S. for a crime other than murder for more than 50 years according to the Death Penalty Information Center’s website, and in 2008 the U.S. Supreme Court rejected use of the

∗Rebecca L. Walker. Email: rlwalker@med. unc.edu

Criminal Justice Ethics, 2017 Vol. 36, No. 1, 78–96, http://dx.doi.org/10.1080/0731129X.2017.1301520

© 2017 John Jay College of Criminal Justice of The City University of New York

death penalty for crimes where a death does not result.1 Globally, the U.S. is fifth in the world for number of executions out of 28 countries that have used the death penalty in the past 10 years, while China, which does not publicize its execution numbers, ranks first.2 In the U.S., numbers of executions are declining, in part due to moratoriums in place and challenges to execution by lethal injection.

Participation by physicians in lethal injection executions has been steadfastly viewed by professional medical organizations as contrary to their ethical standards. However, physicians have participated in lethal injection executions, and the morality

of the death penalty itself is a matter of intense social and political debate. Medical ethics commentators and professional organizations have typi- cally held that the prohibition on physician participation in the death penalty is independent of the ethical status of the death penalty itself. I shall argue that this view is untenable and that it is tied to a view of pro- fessional role virtue that is similarly untenable. At the same time, I shall argue that, given the morally uncer- tain status of the death penalty, it is plausible that virtuous physicians may either refuse or choose to partici- pate in some aspects of the death penalty.

I. Lethal Injection and Medical Participation Background

Execution by lethal injection was first adopted by Oklahoma in 1977 as a method of execution perceived as more humane than previous methods regularly used in the U.S., which included hanging, firing squad, electrocution (first used in 1890), and the gas chamber (first used 1924). It is the method of execution in all states that currently have a death penalty, though some states also have other methods avail- able as back up. Unlike other forms of execution, death by lethal injection invokes, and relies on, medical exper- tise, technologies, and images. Medical knowledge is critical to correct vein location and placement of the intravenous (IV) needle(s), correct selection, mixing, and delivery of the lethal drug dose(s), monitoring of consciousness, and declaration of death. In current lethal injection pro- tocols, the prisoner is strapped to a gurney, draped with a white sheet,

and hooked up to two IV delivery systems. Thus at least the appearance of a medical procedure is in place, whether or not physicians are actually involved in the execution.

Because of the relevance of medical expertise and techniques, lethal injections carried out with medical personnel assistance are per- ceived by states as more likely to meet the evolving standards of humane killing as required by the constitutional prohibition against “cruel and unusual” punishment. Some states require (voluntary) phys- ician participation, while others allow it and often create safeguards, such as anonymity and protection of medical licensure, for individual physicians who are willing to participate.

Yet the medicalization of the death penalty has created conflict both within medicine and between the medical profession and state laws and institutions. Unlike other areas

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of potential expansion, where medi- cine has eagerly laid claim to pro- fessional jurisdiction, physician organizations have seen participation in capital punishment as a serious threat to the “healing profession.”3

All professional codes of medical ethics that address capital punish- ment claim that any direct physician involvement is unethical.4 According to the American Medical Association (AMA), the only acceptable involve- ment by physicians is prescription of sedatives before an execution at the prisoner’s request, and certification of death (after death has already been declared).5 At the same time, survey research has shown that phys- icians not only approve of some of the proscribed forms of participation, but many also claim they are willing to participate themselves.6 While ongoing controversy over lethal injec- tion has made many physicians more wary of any personal involvement, according to Ty Alper, a Berkeley Law professor who has written exten- sively on the death penalty, “[n]umerous doctors have partici- pated in hundreds of executions over the past three decades.”7

Indeed, historically, physicians have been involved in helping to push forwardmethods of killing condemned prisoners perceived as humane. In 1789, during the French Revolution, Dr. Guillotin, who himself opposed the death penalty, urged the French National Assembly to adopt equally swift and painless methods of

execution for the commoner as for nobility and proposed a decapitation machine. In 1887, Dr. Southwick, a dentist who was part of a commission appointed by New York State to rec- ommend humane methods of execution, promoted the use of the electric chair as an alternative to hanging. 8 Lethal injection as an execution method in the U.S. was developed by Oklahoma’s medical examiner with advice from an anesthe- siologist. Physicians were reportedly also present and advised at the first electrocution death and the first lethal injection death in the U.S.9

Currently, executions are declining in the U.S. due to a shortage of drugs for lethal injection, litigation of specific state methods, a rash of botched executions, and the contin- ued stand-off between medical pro- fessional societies and state interests in a method of death meeting consti- tutional standards. While execution by lethal injection was developed to meet evolving standards of humane killing, serious adverse events leading to likely extreme suffering for the inmate as he is killed have occurred.10 Misplaced IV lines or insufficient dosing of the anesthetic agent used in the traditional three- drug cocktail have caused lengthy death times and likely the experience of progressive suffocation from the paralytic drug and an internal burning sensation from the potassium chloride injected to cause cardiac arrest.11

II. Medical Professionalism Perspective

Medical expertise is critical in avoid- ing these errors in the administration of lethal injection and even in the

correct identification of the lethal drug(s).12 States have been eager to enlist medical assistance in carrying

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out their most severe penalty, and prisoners themselves have litigated that physician involvement is necess- ary to avoid violation of the prohibi- tion on cruel and unusual punishment in light of multiple botched executions.13 Physician and other medical professional organiz- ations, and multiple medical ethics commentators, however, have insisted that any physician involve- ment in executions is unethical. Pro- hibited involvement according to the AMA includes selection or preparation of veins, starting intravenous lines, either prescribing or administering lethal drugs, monitoring conscious- ness, and declaring death (though physicians may certify death). Further prohibited is any equipment assistance and any consultation or supervision of the execution.14

While the AMA and other pro- fessional organizations have been clear that physician and allied health care professional participation in the death penalty is unethical, they have remained agnostic about the morality of the death penalty itself. The AMA ethics position states that opinions about capital punishment are “the personal moral decision of the indi- vidual” but that 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.”15

Physician commentators have also explicitly stated that their ethical opposition to participation in the death penalty is independent of moral condemnation of the death penalty itself. Atul Gawande writes, in a widely read article in the New England Journal of Medicine, “I have personally been in favor of the death penalty.… I believe there are some

human beings who do such evil as to deserve to die.… Still, I have always regarded involvements in executions by physicians and nurses as wrong.”16 In a recent commentary in the Journal of the American Medical Association, Robert Troug and col- leagues write: “If capital punishment is warranted—and it is important to acknowledge the arguments that favor this view—then it should be done without the involvement of medical professionals.”17

There is obviously something appealing in this line of thought. After all, it is clear that medical pro- fessionals have special obligations by virtue of their social role, and it is also appealing to clarify these obli- gations independently of controver- sial moral issues in society. Is it plausible, however, to remain neutral on a controversial social moral question and yet dictate with certainty related professional obli- gations? In what follows I shall argue that, if the death penalty is required as a matter of justice (as Gawande seems to claim), the most common arguments prohibiting physician involvement on ethical grounds are weakened.18 Thus it is not the case that prohibitions on phys- ician participation are independent of the moral status of the death penalty.19 Further, I investigate the supposition of an independent medical ethic that must underlie the claim that moral prohibitions on physician involvement hold regard- less of the moral valence of the death penalty. I argue that even though physicians do have special ethical obligations by virtue of their social role and special knowledge, these obligations are more plausibly contextual specifications of broader

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moral virtues of particular salience to medicine than evidence of an internal ethic.20 At the same time, given the uncertain ethical standing of the death penalty at the social level, I also argue that it is not implausible

that a virtuous physician could either choose to participate or not to participate if they do so for the right reasons, in the right way, at the right time, and with the other requirements for virtuous action.

III. Medical Professionalism Arguments Against Physician Involvement

In this section I review what I take to be the two most promising, and common, professionalism arguments purporting to show that physicians are ethically prohibited from partici- pating in the death penalty regard- less of the broader morality of execution. I point out that these argu- ments are weakened if the death penalty is required as a matter of justice. Because the professionalism position aims to show that medical professionals should be prohibited from participating in the death penalty, I leave aside mere claims that such participation is prohibited by various medical codes, such as that of the AMA. Medical oaths, such as the Hippocratic oath, are more complex, as physicians who take these oaths make specific prom- ises regarding their future behavior. At the same time, while the Hippo- cratic oath has been interpreted as prohibiting physician participation in the death penalty, others have argued that the matter is not so clear.21 In either case, contrary to popular belief, many physicians never take a version of the Hippo- cratic oath.22 Further, it would be surprising if the ethics of physician involvement in the death penalty were decided by the correct interpretation of the Hippocratic oath alone.

i. The Ends of Medicine An argument widely used by pro- fessional organizations and medical commentators supporting the ban on physician participation in the death penalty is that such involvement con- tradicts the purpose or ends of medi- cine, which are to heal and to help the sick and suffering. According to the AMA,

[p]hysician participation in executions contradicts the dictates of the medical profession by causing harm rather than alleviating pain and suffering.… Using medical devices and methods for execution distorts the life-saving purposes of medical technology.… Physician participation … further distorts the purpose and role of medicine and its professionals in the preservation of life.23

Edmund Pellegrino writes that phys- ician participation in capital punish- ment “produces harm by sanitizing the act of medical killing, which, in turn, is a violation of the primary healing purpose of medicine.”24

Another commentator writes that “[m]edicine is at heart a profession of care, compassion, and healing. Physician-assisted capital punish- ment fails to encompass these virtues.”25 The idea appears to be that medicine has a set of ends that guide its practice and that it is wrong for individual medical

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practitioners to undermine (or contra- dict) these ends. Acceptable ends include healing, preserving or saving life, and alleviating pain and suffer- ing. Contrary to these promoted ends, participation in executions harms through killing.

I shall discuss below whether it is plausible to appeal to a shared end of medicine in delineating internal medical moral norms. Here I note that it is not clear that participation in the death penalty contravenes all of the ends recognized above. If medical participation in a killing that will go forward independently is likely to allow for a less painful (or even torturous) death, then does such participation fail to promote the alleviation of suffering? On the con- trary, insistence on non-participation appears instead to undermine the alleviation of suffering that partici- pation could offer. Note, in particular, that the morality of the death penalty itself seems critical to this argument. If the death penalty is required by justice, as Gawande implies it some- times is, then it seems implausible that physician participation that could alleviate a torturous experience is nevertheless disallowed by the medical goals of alleviating pain and suffering. In fact, the contrary appears to be the case.

Further, where participation clearly does undermine and contra- dict purported medical goals, such as those of preserving and saving life, the morality of capital punish- ment seems particularly significant. Physician aid in dying that includes prescribing lethal doses of drugs or euthanasia also clearly undermines the medical goals of preserving and saving life. However, in this case, if it is morally permissible or even obli- gatory to allow physicians to carry

out these types of aid in dying, then we will want to rethink these medical ends.26 Of course, in an execution, a relatively healthy person is put to death against his will. Morally, this situation is very different from that of a terminally ill person requesting assistance in achieving a peaceful death. My point is not to argue for a moral similarity between these cases. It is instead to say that the moral valence of the activity in both cases seems significant for what we should understand about the proper ends of medicine, which do not necessarily impose restrictions regardless of the morality of the issue. Put another way, it is not the nature of the medical engagement that determines the ethicality of the actions, but the ethical (or unethical) nature of the actions that prescribes the approach medicine should take.

Regarding the issue of the prison- er’s will, Gerald Dworkin suggests that the non-consensual nature of the death is the critical point in disallow- ing physician participation in the death penalty. In other words, the essential violation of the ends of medicine is infliction of death against the will of the condemned.27

But what if, as seems plausible, pris- oners themselves request medical par- ticipation to avoid unnecessary suffering? In that case the AMA (and other commentators) state that the physician still cannot participate because the death itself is against the prisoner’s will. Yet medical expertise appears most significant in alleviating potential suffering in matters other than pushing the death drugs (e.g., in proper placement of the IV and in monitoring and maintaining a surgi- cal plane of anesthesia). Thus, if the point is to ban the use of medical expertise to directly cause death

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against someone’s will, which I agree is both narrowly tailored and signifi- cant, then the AMA ban on partici- pation is far too wide in scope.

ii. Independence from State Goals A second argument that is commonly presented in rejecting physician par- ticipation in the death penalty is closely tied to the first. The argument is that, given that participation in lethal injection contravenes the ends of medicine, it is paramount for the profession to avoid capitulation to state or social ends.28 Robert Truog and colleagues write: “the fundamen- tal reason for regarding the involve- ment of medical professionals as unethical is grounded in the proper relationship between the state and the medical profession.”29 Further, they point out that states have often tried to co-opt the power and status of medicine for purposes “not aligned with the goals of medicine.”30

Pellegrino writes that if the physician were involved in the execution, he or she would be “the agent of direct and intentional killing, a non-benefi- cent act, that is in the state’s, and not the patient’s, interest.”31 Gawande states:

The public has granted us extraordinary and exclusive dispensation to administer drugs to people, even to the point of unconsciousness, to put needles and tubes into their bodies, to do what would otherwise be considered assault, because we do so on their behalf—to save lives and provide them comfort. To have the state take control of these skills for its purposes against a human being—for punishment— seems a dangerous perversion.32

Richard Bonnie even goes so far as to grant that the argument against par- ticipation on the basis of violating an oath to “first do no harm” is specious

since participation can help the pris- oner. Yet he still insists that partici- pation is impermissible because “serving as an agent of the state’s punitive apparatus is an unacceptable social role for a doctor.”33 His reason- ing is simply that “[d]octors hold their medical knowledge in trust for the collective wellbeing of mankind, and they must guard against the exploita- tion of that knowledge in ways that compromise the supreme aspirations of the profession.”34 Gregory Curfman and colleagues offer a kind of throw-down to the legal system, stating that “[t]he future of capital punishment in the United States will be up to the justices, but the involve- ment of physicians in executions will be up to the medical profession.”35

It is not surprising that physicians would feel especially protective of their professional autonomy in setting medical ethics standards with respect to participation in capital pun- ishment. While professional medical ethics has been quite clearly and con- sistently opposed to physician partici- pation, states have allowed for, or even required, voluntary physician participation and have created safe- guards for those physicians who do participate. In so doing, they have ignored state medical boards’ purview over licensure, which includes abidance by professional ethics standards. While professional resentment of state usurpation of the power to enforce professional ethics standards is understandable, the moral argument for why the pro- fession must protect its autonomy against incursion of state interests must lie elsewhere. Of course, if it is correct that medical ethics prohibits physician participation in the death penalty independently of the moral

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status of capital punishment, the insistence that the profession be able to avoid buckling to the state is well justified. However, if that claim is not persuasive, as I have suggested above, is there a separate argument for the power to enforce professional medical codes of ethics over and against state interests? Bonnie seems to think that medicine’s serving as an instrument of the state is unacceptable on its face, while Gawande is con- cerned about the “dangerous perver- sion” of using medicine’s special permissions and knowledge of how to invade bodies for state interests in harming prisoners.

A moral reason for insisting on medicine’s autonomy from state goals could be that medicine ought to always protect the health needs of the individuals it treats regardless of the interests of the state or the broader society. Yet this claim is highly implausible. As other com- mentators have pointed out, biomedi- cal research presents an obvious example where the medical needs and interests of the individual research subject are secondary to social goods to be achieved through generating generalizable knowl- edge.36 Institutionally embedded physicians in military medicine, the prison system generally, or hired by schools or workplaces face tensions between protecting and furthering the health of individuals in their care and promoting institutional goals. Public health medicine has frequently faced the tension between meeting individual health needs and protect- ing the health of the broader commu- nity. And even the need to allocate medical interventions or supplies places individual patients at risk for the sake of larger social goals of

efficient or just distribution. In all of these cases, it is the moral permissibil- ity (or even requirement) of the social goal that allows medical professionals to use their special permissions and knowledge in pursuit of these goals even sometimes to the detriment of the individuals they treat.

As with the claims about the ends of medicine, then, the argument for professional independence from state interests also appears subject to broader questions about the morality of the death penalty itself. Medicine and state and social interests have been, and will continue to be, closely entangled. The question, then, is whether the particular state interest in a relativelymore humane execution is one that may be pursued in conflict with some of the traditional ends of medicine. Clearly, medicine must strongly resist state arguments for the “necessity” of medical collusion in immoral activities such as torture. If the death penalty is itself an immoral practice, then it may be criti- cal for physicians to avoid involve- ment that would allow that practice to continue even if their involvement provided the alleviation of prisoner suffering. If, on the other hand, the death penalty is required as a matter of justice, then the argument against any physician participation appears relatively weaker. At the same time, in none of the other cases of plausibly permissible incur- sion of state interests do medical pro- fessionals put people to death against their will for the sake of social ends even if, in some cases, people are harmed or put at risk of harm for the sake of social goals (for example, in quarantine, or in new drug studies using healthy vol- unteers). Thus we might agree, as

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with the ends-of-medicine argument, with the narrower professional claim

that physicians should not themselves put people to death.

IV. An Internal Morality for Medicine?

Both the ends-of-medicine and the professional-independence-from- state-interests arguments rely on the idea that medicine has an internal morality.37 According to Truog and colleagues, part of what it means for medicine to be a profession is that “it both defines and enforces its own ethical standards.”38 Pellegrino warns that “[i]f medical ethics does not have moral independence, then it will become subservient to cultural or political interpretation.”39 In this section, I consider the plausibility of the claim to an internal morality for medicine. I give some reason to think that, while physicians do have special moral obligations, these are more plausibly contextual appli- cations of broader moral virtues, par- ticularly those that are significant in the practice of medicine, rather than evidence of a separate medical morality.

It is clear that at the level of morally admissible (and even required) actions, there is a discon- nect between what the good clinician may do and what others not in this role may do. Good clinicians may sometimes cause physical pain, touch us as strangers in places nor- mally reserved for sexual intimates, cut into our bodies, prescribe that we take “potions” that with the wrong usage can kill us, demand of us our most intimate health-related secrets, and sometimes fail to warn others when our secrets may put them at risk. Without further con- sideration, it may appear that these activities give prima facie reason to

believe medicine has an internal morality.

Importantly, however, these beha- viors within the medical role are not necessarily enactments of divergent virtues but may instead be practical specification of the broader human virtues within a particular social role.40 For example, for a surgeon who is both authorized by the patient to do so, and is medically qua- lified to undertake this action, cutting into a body may be an act of compas- sionate care in a way it could not possibly be for an unqualified or unauthorized individual. In other words, the surgeon’s actions are in keeping with a broader moral virtue of particular salience to medicine even though the specific actions are at odds with what an ordinary person could do. Other examples may lead to somewhat more complex specifications of broader moral virtues. For example, the requirement for confidentiality in medicine is more stringent than the broader virtue associated with confi- dence-keeping because of the signifi- cance of such practices for the integrity of the patient–doctor relationship. At the same time, there are multiple “exceptions” to this requirement based in risk of serious harm to the patient or others from failure to disclose particular types of information. While there are particu- lar professional (and legal) rules gov- erning these exceptions, there is always room for interpretation and nuance in the clinical context, thus making practical experience and

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wisdom salient. While a virtuous physician must appropriately mediate between the competing inter- ests and obligations relevant to the social role of the medical professional, it does not follow that they promote or act in accordance with values that are substantively different from those of a broader morality.

So while particular actions that are authorized or required for medical professionals may at first blush appear to support an internal medical morality, there must be a further argument given in order to claim these requirements are not simply contextual role specifications of broader moral virtues. A view of medical ethics that gives a wholly internal justification for the virtues of the medical professional is, in con- trast, compatible with deep variances between “ordinary” virtues and medical professional virtues. This type of variance, in turn, can support a problematic relativism between what a doctor may do simply by being a member of the profession and what “ordinary” people may do. Pellegrino gives an internal justifica- tion of medical morality that could in principle allow for such a relativistic conclusion (though he himself does not draw it). Pellegrino despairs of locating the sort of agreement on the good life for humans that he thinks necessary to restore the underlying philosophical views required for a revitalization of a broader virtue ethic.41 However, he is optimistic that we can agree on the goal of medicine as “the cultivation and restoration of health and the containment or cure of disease”42 and, following Alasdair MacIntyre, argues for a reinterpreta- tion of virtue “as a trait of character that disposes its possessor habitually to excellence of intent and

performance with respect to the telos specific to a human activity,”43 where the human activity at issue is medicine and the telos, or end goal, is health.

Moral relativism aside, a further worry about this kind of approach to medical virtue is that it promotes con- servatism. If the virtues of a particular activity are internally defined by the goals of that activity, then the resources for external critique of that activity and those goals are lacking. For example, by most historical accounts medicine was, until recently, a decidedly paternalistic affair. In the 1920s, Dr. Joseph Collins was able to publish in a popular magazine his view that withholding the truth from patients is often the best way to heal them44 and not disclosing a diagnosis of cancer was normative in medicine until the 1960s.45 Moreover, if the goal of medicine is healing in particu- lar and medical virtues are defined internally to the practice relative to that goal, it is not entirely clear that Dr. Collins was wrong. Perhaps some people’s health will fare better if they are kept in the dark about their medical condition. In either case, the most effective critiques of paternalism have not been from within the practice of medicine regarding its effectiveness in achiev- ing medicine’s ends (though surely those are available), but from outside these practices in noting tensions with our other human (and personal or community) ends and values.

Yet if it is correct to say that an internal medical morality is the best we can hope for, then perhaps such conservatism is inevitable. Arguably, however, it is no more nor less likely that we could agree on the goal of medicine than that we could agree on the good human life. From Aristo- tle on, many writers in virtue ethics

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have assumed that the goal of medi- cine is health.46 In truth, however, the proper goals of medicine have been in debate since the Hippocratic writings,47 and in contemporary times, if we only scratch the surface of health care provider “conscience” debates, we can see divergent goals emerging. For those who support physician-assisted suicide, medicine’s goal may be best understood as alle- viating suffering. A similar claim is not implausible for those physicians who agree to participate in executions. For those who disagree with a physician’s role in abortion, the goal may be better understood as preservation of life. In fact, both alle- viating suffering and preserving life have their place as ends of medicine.

In short, it is unrealistic to think we can agree on a single goal of medi- cine any more than we could agree on a single form of human flourishing. However, if insisting on an internal morality for medicine is not necessary to support the virtues of the medical professional, or to ground those virtues in the “ends of medicine,” it

is unclear what further benefits the view offers.48 Contrary to Pellegrino’s concern that without an internal mor- ality medical ethics will be subject to unpalatable social and political influ- ence, I think no reasonable view of morality can do away with the funda- mental sources of value disagreement that arise from social, cultural, and individual human diversity. More to the point, the goal of virtue consider- ations in medicine cannot be to provide positive solutions to entrenched moral disagreement, but rather, as Eric Beresford points out, “phronesis [practical wisdom] would have us be alert to the presence of the ambiguous, the incomplete, the uncertain which are ineliminable elements of all moral decision making.”49 Of course, that does not mean that wise medical practitioners can choose actions willy-nilly or simply according to their personal value preferences, but rather that there is room for divergent virtuous approaches to an entrenched social problem about which reasonable people disagree.

V. Virtuous Physicians and the Death Penalty

Let us return, then, to those individ- ual physicians who do decide to par- ticipate in lethal injection executions, as well as those who refuse to do so. As noted earlier, despite widespread professional condemnation of partici- pation in executions, many physicians at least appear to be willing to partici- pate, and, in either case, many have in fact done so. Is it possible that a virtu- ous physician could make either choice? Dr. Guillotin, who himself did not participate in executions using the decapitation machine that would later carry his name,

reportedly became horrified and dis- mayed with the extent of efficient bloodshed made possible through its use. While promoting more humane executions of the common man, he was also opposed to the death penalty. What shall we make of modern-day examples of physicians who choose to participate in lethal injections while personally opposing the death penalty?

Gawande describes one such indi- vidual who, unlike the other medical personnel he interviewed, agreed to share his name publicly. Dr. Carlo

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Musso is a middle-aged emergency department physician who also works in the local jail, where, as he describes, “you can make a tremen- dous impact on people and on public health.”50 This is because jail populations, unlike prison popu- lations, are transient as people await trial. Drug addiction and related co- morbidities, are highly prevalent. Despite personal opposition to the death penalty, and full awareness of the AMA position on physician par- ticipation,51 Dr. Musso agreed when he was asked to take over the phys- ician role in the death penalty at the nearby prison. His reasoning com- pares a death row inmate to a termin- ally ill patient who will die independently of what interventions he might make. As he stated, “the cure for this cancer” is abolition of the death penalty; however, “if the people and the government won’t let you provide it, and a patient then dies, are you not going to comfort him?”52 Dr. Musso’s participation includes helping find access for an IV line if necessary, monitoring the prisoner’s vital signs, and declaring death. He does not administer the lethal drugs. He donates the proceeds he receives from this service to the children’s shelter where he volun- teers. As a result of openly sharing his identity with Gawande, Dr. Musso faced activist condemnation and challenges to his AMA member- ship. He says, however, that “[i]t just seems wrong for us to walk away.”53

Dr. Gawande holds the opposite position of Dr. Musso. He claims the death penalty is sometimes required by justice,54 yet he refuses to partici- pate and moreover supports a legal ban on all physician participation. Further, he actively supports his pos- ition in his published work and is

willing to forgo the justice sometimes delivered by the death penalty if that is the cost of banning physician par- ticipation. As he states, if no death penalty that is consistent with the constitutional ban on cruel and unusual punishment is possible without physician participation, then it is better to forgo the penalty, because “a society in which the gov- ernment actively subverts core ethical principles of medical practice is patently worse off for it.”55

Is it possible that both physicians act virtuously despite their opposing actions and perspectives? While I make no claims about whether each of these individual physicians is or is not virtuous, I think it is not implausi- ble that both could be. Further, I think it is neither surprising nor necessarily problematic if virtuous physicians behave in contrary ways in the context of a morally unsettled social issue where there are reasonable arguments supporting each side. While a general account of the virtues can specify the relevant domains of human activity for each virtue (courage in response to fearful situations, temperance with respect to pleasures of food and sex, com- passion in the face of suffering others, and so on), as well as human tendencies in those domains, it cannot specify in advance the actions called for in each particular circum- stance or in light of each personal ten- dency. Such determinations are best made by the practically wise person able to accurately perceive both the moral contours of each situation and what action is called for. While it is not the case that dishonest actions such as lying could be virtuous, it is plausible that opposing actions might each be virtuous where moral norms are unsettled and multiple

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reasonable moral positions exist. Thus, while a paternalistic physician who does not inform her patients of their prognosis could no longer count as virtuous except under truly extraordinary circumstances, phys- icians who participate in executions out of beneficence for the condemned may be as virtuous as those who reject such participation.

There is much more to unpack here that I will ignore. Is it plausible to say that Dr. Gawande could be acting virtuously, given my previous argument regarding the intellectual weakness of his position?56 Shouldn’t Dr. Musso refuse to participate if his participation continues to make poss- ible the imposition of the death

penalty?57 What about physicians who support the death penalty and participate on those grounds, or phys- icians who oppose the death penalty and reject participation on those grounds? Can they also do so wisely? While I leave all these ques- tions unsettled here, I would like to emphasize that my argument is not that either Dr. Gawande or Dr. Musso are virtuous in particular, only that it is plausible to allow that they both could be virtuous actors. At the same time, even if it is plausible that virtuous physicians could make opposite choices regarding partici- pation in the death penalty, it is also the case that moral rules are needed to guide most of us.

VI. What Should Be the Medical Professional Position?

It is not implausible that virtue is a quality rarely manifested and not available to the average medical pro- fessionals. If that is the case, how are we to morally manage the “masses” of medical professionals? It is impor- tant in this regard that both discretion in judgment and autonomy are central to medicine as a profession. Thus in so far as professionalism itself flourishes, medicine will con- tinue to be organized in ways that do not so tightly monitor the choices of the medical professional as to be able to control the behavior of those with problematic motivational sets. This is part of the problem for partici- pation in the death penalty. It is one thing to say that virtuous physicians might participate out of compassion even if they disagree with the penalty, but quite another for phys- icians to participate out of a motive of vengeance that is completely out of place in medicine.

Rules and policies are rather like virtues in that every moral system needs them. Within a virtue ethical framework, rules and policies may manage moral shortcomings by pro- moting behaviors that may then help in the acquisition of virtue (for the young or the ethically naive) or even in controlling the behavior of those who may never be virtuous. The vir- tuous person also ought to follow the rules and policies that apply to other people, since she cannot typi- cally take exceptions for herself (though she has the facility to recog- nize and respond appropriately when rules and policies are unjust or otherwise ethically problematic). At the same time, practical wisdom helps the virtuous person to interpret and apply rules and policies in a con- textually appropriate, rather than rote, fashion. So while acting in accordance with rules and policies cannot be a measure of virtue for the

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practically wise, these tools can help get physicians (and others) on the right path, constrain those unable or unwilling to otherwise follow such a path, and apply as tools of social organization and cohesion to the vir- tuous physician as well.

In this case, what should be the rule guiding physician participation in the death penalty? Arguably, medical ethics codes should provide guidance that is specific enough to help shape action, but not so specific as to take a stand on an open moral question where a significant portion of the profession may disagree. Does that mean that medical ethics codes addressing participation in the death penalty ought to note the moral con- troversy and allow for such partici- pation? Perhaps. However, in that case, it should be very clear that not all participation is ethically in line with the social role of physicians. It seems only participation aimed directly at easing suffering and in line with the will of the condemned could be allowed. Injecting the drugs that cause death against the will of the condemned is most assuredly con- trary to the ends of medicine whether understood as the preservation of life or the alleviation of suffering.

A radically different approach, but one that is still in keeping with my argument overall, is that medical pro- fessional organizations themselves take a stand against the death penalty. Taking a stand against the death penalty resolves the tension between insisting that physicians do not par- ticipate while remaining agnostic on the morality of the death penalty itself. I have argued that this position is untenable since the arguments put forward for prohibiting physician involvement are not plausible if the

death penalty is required as a matter of justice. Professional opposition to the death penalty instead rejects this possibility. Further, rejecting the death penalty is a reasonable specifi- cation of the broader human moral virtues as applied in the medical context. Physicians, after all, must be caring and compassionate regardless of the life history of individuals who present themselves for medical atten- tion. Retributivist visions of justice therefore should not animate a phys- ician’s approach to medicine. Thus opposition to the death penalty through the eyes of a physician’s social role is reasonable, even as it would aim at the broader social rejec- tion of the death penalty.

For medical organizations to take up a moral position against the death penalty is risky in several ways. Such a position may alienate physicians who personally agree with the death penalty and also ignores the argument that pro- fessional organizations should not take stands on socially unsettled moral issues. Further, if the death penalty is required as a matter of justice, taking a professional ethical stand against the death penalty is a moral mistake. At the same time, if the death penalty is itself immoral to impose, then taking such a pro- fessional stand may move society in the better direction. Thus, the risky move more honestly reflects what is truly at stake in physician partici- pation in the death penalty.

It is not clear to me whether pro- fessional medical organizations ought to allow physician participation in the death penalty, given the social moral uncertainty over this form pun- ishment, or whether they ought to oppose the death penalty. Either

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alternative, however, seems superior to an ethical code that prohibits

participation while remaining neutral on the moral question.

Notes

[Disclosure statement: No potential conflict of interest was reported by the author.]

[Thanks are owed to participants at the conference on The Theory and Practice of Punish- ment East and West, at the City University of Hong Kong, and to an anonymous reviewer.]

1 In Kennedy v. Louisiana (2008) and the modifying opinion of October 1, 2008, which clarified the distinction of civilian and military penalties and rejected the request for a rehearing. See Kennedy v. Louisiana, 128 S. Ct. 2641, 554 U.S. 407, 171 L. Ed. 2d 525 (2008).

2 For a discussion, see Sengupta, “Death Sentences Surge.” According to Amnesty International and other human rights groups, executions in China are in the thou- sands every year and those executed include members of many religious and ethnic minorities. In the U.S., 28 people were executed in 2015 with a high of 98 people after reinstatement of the death penalty following Gregg v. Georgia (1976) in 1999. (Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 [1976].)

3 For an interesting discussion of the medical professions’ swift rejection of invol- vement in lethal injection in the context of broader issues of social control and medica- lization, see Haines, “PrimumNon Nocere.”

4 These include the American Medical Association, the World Medical Association, the American Public Health Association, and the American Society of Anesthesiologists. Other professional associations prohibiting participation include the American Nurses Association, the American Academy of Phys- ician Assistants, and the National Association of Emergency Medical Technicians.

5 See Clarke et al., “Physician Partici- pation in Capital Punishment.” There are many other forms of “participation” in the death penalty that mental health pro- fessionals in particular must consider at the trial, sentencing, and punishment phases of the legal process. For example, examining a prisoner for fitness to stand trial when a death penalty could be sought, testifying about aggravating or

mitigating circumstances, assessing compe- tency for execution, and even restoring competency for the sake of an execution moving forward. This last activity is clearly the closest in terms of participation in the death penalty itself and brings to the fore questions of treatment over objection in the case of mental health incapacity and treatment in pursuit of state ends that do not serve the welfare of the prisoner. In this article, however, I will stick to the question of involvement in the execution itself, rather than in these phases of the crim- inal justice system leading up to the execution.

6 Farber et al., “Physicians’ Attitudes About Involvement”; Farber et al., “Phys- icians’ Willingness to Participate.”

7 Alper, “Doctors Can and Do.”

8 See Christen and Christen, “Alfred P. Southwick.” Electrocution was promoted by Thomas Edison (who also opposed the death penalty) as an “instantaneous” method of ensuring death if developed using his rival’s ac (alternating current) rather than his “safer” dc (direct current). See Moran, “Shock Treatment.”

9 See Clark, “Physician Participation in Executions.”

10 I say “he” because all prisoners affected by adverse events during lethal injection protocols have been male. This is not surprising since only 16 women have been executed out of a total of 1437 executions since 1976 (or 1%).

11 For amedical analysis of problemswith lethal injection protocols, see Zimmers et al., “Lethal injection for execution.”

12 In 2014, a doctor overseeing an execution in Oklahoma determined that the state received the wrong drug, and the

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execution was called off. It is important to note that even withmedical personnel invol- vement, the experimental use of alternative drugs has caused problematic executions, as has the lethal injection protocol itself. Because the standard method has been the introduction of a sedative, followed by a paralytic, followed by a drug to induce cardiac arrest, if the sedative is improperly dosed or maintained, then the paralytic serves only to mask extreme pain in a pro- longed execution (See Zimmers et al., “Lethal Injection for Execution”). While medical professional involvement might help to maintain a surgical plane of anesthe- sia while death is induced, there is no research to support the three-drug protocol, making clinical judgment potentially specu- lative. While the three-drug regimen was standard for many years, according to the Death Penalty Information Center’s website, at present half of the states that have adminis- tered the death penalty in 2015 or 2016 have used a single drug to both administer seda- tion and cause the prisoner’s heart to stop. Presumably the hope is to improve the possi- bility of meeting standards for humane execution by avoiding a paralytic agent.

13 See Litton, “Physician Participation in Executions.”

14 Farber et al., “Physicians’ Attitudes About Involvement”; Clarke et al., “Phys- ician Participation in Capital Punishment.”

15 Clarke et al., “Physician Participation in Capital Punishment,” 365.

16 Gawande, “When Law and Ethics Collide,” 1227.

17 Truog, Cohen, and Rockoff, “Phys- icians, Medical Ethics, and Execution,” 2375.

18 In “Physician Participation in Executions,” Paul Litton also opposes the separation of the ethics of physician involve- ment from the moral valence of the death penalty. However, my specific arguments are somewhat different from his, and I focus more squarely on the question of an internal ethics of medicine and bring to bear virtue ethical considerations.

19 While I will not argue the point, I think that if the death penalty is warranted it must be as a requirement of justice, due to the weakness of deterrence arguments

supporting the death penalty. However, I also think that even if the death penalty is required as a matter of justice, it may still be prohibited because of practical limit- ations of error and prejudicial application. This point presumes that a misapplication of the death penalty is a worse travesty of justice than a failure to carry out a deserved execution.

20 In “The Impossibility of a Morality Internal to Medicine,” Robert Veatch also argues against an internal physician ethic. He claims that the ethics of physician invol- vement in various controversial social prac- tices are settled by the morality of those practices. My view is different. I do believe that physicians can have special obligations regarding their participation in the death penalty in virtue of their social role and knowledge. However, I think the morality of the death penalty influences these obli- gations and cannot be abstracted from them.

21 The relevant passage is: “I will use those dietary regimens which will benefit my patients according to my greatest ability and judgment, and Iwill do no harm or injus- tice to them. I will not give a lethal drug to anyone if I am asked, nor will I advise such a plan.” Translated by Michael North, National Library of Medicine. https://www. nlm.nih.gov/hmd/greek/greek_oath.html

22 See Veatch and MacPherson, “Medical School Oath-taking.”

23 Clarke et al., “Physician Participation in Capital Punishment,” 365–6.

24 Pellegrino, “Societal Duty and Moral Complicity,” 377.

25 Clark, “Physician Participation in Executions,” 101.

26 The AMA also rejects physician aid in dying where that means assisted suicide or euthanasia. James Rachels has a well- known discussion of this issue in “Active and Passive Euthanasia.” The AMA ethics position has not changed substantially since the time of Rachel’s discussion.

27 See Dworkin, “Patients and Prisoners.”

28 There are many other arguments that may be offered as well. These include con- cerns about public trust in, and perception of, the medical profession, the existence of

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a social contract that precludes such partici- pation, and disagreements over whether lethal injection is a medical procedure at all (and if not, what that means for physician participation). However, I take these argu- ments to be related in important ways to the two primary arguments that I address here.

29 Truog, Cohen, and Rockoff, “Phys- icians, Medical Ethics, and Execution,” 2375.

30 Ibid.

31 Pellegrino, “Societal Duty and Moral Complicity,” 376.

32 Gawande, “When Law and Ethics Collide,” 1227–8.

33 Bonnie, “Death Penalty,” 381.

34 Ibid.

35 Curfman, Morrissey, and Drazen, “Physicians and Execution,” 404.

36 See especially Litton, “Physician Par- ticipation in Executions.” Research subjects are, of course, protected by ethical standards and regulatory structures.

37 There is some overlap between this section of the article and Walker, “Virtue Ethics and Medical Ethics,” 518–19.

38 Truog, Cohen, and Rockoff, “Phys- icians, Medical Ethics, and Execution,” 2376.

39 Pellegrino, “Societal Duty and Moral Complicity,” 387.

40 I consider the issue of internal medical morality in virtue terms here, but it can be readily explored using different moral language. For example, whether medical ethics codes are specifications of broader moral rules or evidence of a unique set of moral norms.

41 See Pellegrino, “Virtue Based Norma- tive Ethic.”

42 Ibid., 267.

43 Ibid., 268.

44 See Collins, “Should Doctors Tell the Truth?”

45 See Sokol, “Doctor’s Nose has Shortened.”

46 See e.g., Pellegrino, “Virtue Based Nor- mative Ethic,” 267; Oakley and Cocking, Virtue Ethics and Professional Roles, 75–8.

47 See Lloyd, “Role of Medical and Bio- logical Analogies,” 12.

48 I do not take myself to have argued decisively against an internal medical mor- ality in this section. The issues are complex, and I have only offered a few con- siderations on the matter. However, I believe these are sufficient for the broader purposes of this article.

49 Beresford, “Can Phronesis Save Medical Ethics?” 223.

50 Gawande, “When Law and Ethics Collide,” 1228.

51 According to the poll conducted by Farber et al. in 1999 only 3% of physicians were aware of the AMA position on capital punishment participation (Farber et al., “Physicians’ Willingness to Partici- pate”). That number is likely much higher currently, given recent public attention to the matter and is also likely higher among physicians who choose to participate in lethal injections. Still, it is important to point out that many physicians are not versed on such details of professional ethics codes.

52 Gawande, “When Law and Ethics Collide,” 1228.

53 Ibid.

54 At least, that is how I take his state- ment that death is sometimes “deserved.”

55 Gawande, “When Law and Ethics Collide,” 1229.

56 As I note below, it may depend on whether he is willing to embrace a pro- fessional opposition to the death penalty as such.

57 I don’t argue this point, but I think the answer here is clearly “Yes.” If refusal to participate could end the death penalty, then physicians ought to refuse to participate on the basis of professional opposition to the death penalty itself (not mere opposition to physician participation).

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