On Tuesday, California governor Arnold Schwarzenegger released a revised lethal injection protocol in hopes of reversing a moratorium on capital punishment in the state put in place by a February 2006 federal court ruling. From the LA Times:
On Tuesday, Gov. Arnold Schwarzenegger’s legal affairs secretary, Andrea L. Hoch, and James Tilton, director of the California Department of Corrections and Rehabilitation, said the new protocol addressed all the issues U.S. District Judge Jeremy Fogel raised in finding that the state’s previous procedures violated the constitutional ban on cruel and unusual punishment….
Fogel ruled in December that the state’s application of its death penalty law was broken, but said it could be fixed. He urged the governor to propose remedial action. California and three dozen other states use a three-drug cocktail. Opponents argue that officials often fail to properly sedate inmates with a barbiturate against the searing pain of the final heart-stopping chemical. The inmate’s reaction to the pain is masked by the intermediate drug, a paralytic, they say.
A national study published in the Public Library of Science journal PloS Medicine in April found that two of the three drugs used in lethal injection are not administered properly to reliably ensure a humane death.
State officials said Tuesday that they had considered switching to a single-chemical protocol. But they instead proposed to “substantially revise” the three-drug protocol.
The new plan appears to address the superficial concerns detailed in Fogel’s ruling, but it doesn’t get at the underlying problems that are intrinsic to capital punishment. A practice so outdated and vengeful as the death penalty arguably has no place in a modern democracy. In May of last year, I discussed a Nature editorial (subscription required) that laid out the role that physicians should play in ending this practice. Already, the AMA prohibits physicians from participating directly in executions, as it is seen as a violation of the Hippocratic Oath. Nature took this a step further, calling for physicians to abstain from any participation in developing California’s new lethal injection guidelines:
Earlier this year, a California court told state authorities that they must persuade an anaesthetist to oversee an execution, come up with a new protocol for lethal injections–or face a hearing on whether the punishment is inhumane. The last option now looks likely.
If suitably qualified individuals refuse to help prepare a new protocol, the state will face the prospect of continuing to use amateurs to kill people with arbitrary and outmoded technology.
Scientists often abjure political activity, and could in this case argue that they are merely providing a basis from which policy-makers can make decisions. But this decision must be taken by the physicians and scientists themselves. All that is required is a refusal to participate. Men and women of science and medicine should stand shoulder to shoulder on this. Don’t advise, don’t prescribe, don’t inject. Let the death penalty die a natural death.
Unfortunately, though, when perusing the California Department of Corrections and Rehabilitation’s (CDCR) report on its new protocol, I found this:
The CDCR also obtained the services of a nationally renowned anesthesiology. The consultant reviewed several proposed revisions to the Lethal Injection Protocol and provided comments to the CDCR.
Due to the typo in the document (and the strange lack of any additional documentation or reference to this shady figure), it was unclear to me what was meant by “a nationally renowned anesthesiology.” To clear this up, I gave the CDCR a call, and I talked to Deputy Press Secretary Bill Sessa (who was very helpful). He informed me that the person in question was in fact an anesthesiologist (i.e. a physician) and that the lack of documentation here was for privacy concerns. When asked whether it had been difficult to procure physician participation in formulating the policy, he told me that he would not be able to comment on that.
This is a major disappointment to find out that a physician gave expert consultation to assist in developing California’s new lethal injection protocol. Although it may seem natural to expect physicians to offer relevant advice when the potential for so much pain and suffering exists in this procedure. However, this only enables the state to perpetuate its death penalty practices. If all physicians were to fully abstain from any consultation regarding capital punishment, the practice would lose the last remaining shreds of credibility that it still desperately clings to, bringing about its timely and justified end.