Should Physicians Participate In Capital Punishment?

It was the height of fashion in 2005 to campaign to save the life of convicted quadruple murderer, Tookie Williams. Think of those elegant Brentwood galas where women come and go, talking of Michelangelo.  

Celebrity, Mike Farrell, never one to restrain those ostentatious displays of his own goodness, boasted of his efforts in this campaign to "raise the level of civility in this society."  When asked by Dennis Prager if he ever spent time in the homes of the victims, Farrell intemperately accused Dennis Prager of indifference to the guilt or innocence of the condemned.  A revealing triumph of the non sequitur

Dennis Prager's concern for victims is an important one, and it dared disturb Ferrell's universe. This disturbance and Farrell's incoherence are symptoms of a much deeper problem.  The debate over the legitimacy of capital punishment focuses entirely too much on the criminal and its effect on him.  Far too little concern has been paid to the victims and their loved ones.  For the sake of brevity, we will call them "co-victims."

This same lack of concern for the welfare of co-victims of capital crimes is evident in the position taken by the American Medical Association (AMA) on physician participation in capital punishment.  The AMA's Code of Medical Ethics explicitly prohibits physicians from participating in legally sanctioned executions (Opinion 2.06).  This prohibition is broad, and it includes not only the injection of a lethal dose, but also related activities such as monitoring vital signs and inspecting the equipment.

The primary thrust of the AMA's Code of Ethics (as it is for the Hippocratic Oath) is to do no harm.  However, just as the likes Mike Farrell would never spend a penny of celebrity capital for ordinary co-victims of murder, so the position of the AMA ignores its likely deleterious effects on co-victims. The endless obstruction of capital punishment, the AMA's contribution to that obstruction, and the relative leniency of imprisonment may be doing serious harm to the co-victims. 

A 2007 study (Vollum & Longmire, Violence Victims, Volume 22, Number 5, 2007 , pp. 601-619) examined statements by co-victims after the executions were completed.  Few expressed dissatisfaction with the fact that the murderer was executed, but large numbers were dissatisfied with the long delays or the relatively low level of suffering by the criminal.  Many co-victims were relieved that this chapter of their lives had ended.  Was this an end to their suffering and perfect closure?  No, but better for co-victims than the seemingly endless legal procedures and the non-capital alternatives.

If an execution of a convicted murderer brings some benefit to co-victims, does the obstruction of capital punishment cause corresponding harm?  In one study (Cornell Law Review), the responses of co-victims were measured when the accused was legally exonerated.  Even in cases where there was definitive, exculpatory DNA evidence, co-victims often demonstrated significant psychological trauma due to the fact that there would be no execution and seemingly no justice. It seems to us a reasonable inference that if co-victims suffer from a justified exoneration, then co-victims would certainly suffer from unwarranted and politically motivated delays of capital punishment.

Absent definitive studies, there is room for reasonable conjecture on the nature of the suffering of co-victims when justice is delayed or denied. To explore better the possibly damaging effects on co-victims caused by the obstruction of capital punishment, let us use established medical terminology to describe the sufferings of co-victims that can be reasonably inferred. 

When a guilty murderer receives a reprieve on flimsy grounds, can we call the reaction in co-victims an"Axis 1" (ie. major psychiatric disorder) "adjustment disorder" or "anxiety disorder" that would otherwise be taken seriously by the AMA?  When a co-victim suffers life-long debilitating and obsessive thoughts about the incongruity of the murderer being supported by society while the victim is entombed, can we call this obsessive compulsive disorder? 

Should any resulting depression caused by the delay or denial of justice suffered by co-victims be ignored?  Why would the AMA presumably support treatment and benefits for those co-victims diagnosed with any of these disorders, and then take an official position that may contribute to these disorders?

With these potential disorders in mind, studies should be undertaken with another concept in mind.  Whether we call it a sense of injustice or a desire for vengeance, or whether we use psychiatric terminology, there is little dispute that these negative experiences of co-victims are manifest in physical changes in the brain. Some neurons sprout different "buds;" some parts of neurons die; new connections are formed; the chemical milieu at the junctions (synapses) change.  These phenomena demonstrate that the brain is a living, ever-changing, constantly updating organ within which the micro anatomy is ever-growing and retracting and the chemical balance changing.

Obviously both victims and co-victims suffer from the crime itself. But when there is an injustice or seemingly endless delay of justice, there is a profoundly negative experience for the co-victims that will be manifest in additional physical changes in the brain. Biologically, this further injury can be as disabling as that caused by a blow to the head. Thus, suffering, which the AMA purportedly wants to mitigate, could very well be exacerbated by its position on capital punishment.

Further study is needed on both the extent of and the justification for the potentially negative effects on co-victims of unwarranted delays, obstruction, and denial of capital punishment.  Both common sense and anecdotal evidence strongly suggest that real harm is caused to co-victims when this sort of justice is wantonly delayed.  Absent more formal and thorough studies of the effects on co-victims, we believe that the position of the AMA is premature and unjustified, and that AMA should suspend its categorical ban on the participation by physicians in capital punishment, at least until this issue is adequately studied. 

The AMA's own basic "Principles" provide support for this moratorium.  Laws providing for capital punishment are the result of years of experience, reflection, and debate in state legislatures.  Section III of the AMA's Principles states that a physician should "respect the law."  Should the AMA, as a legally constituted medical organization, formally prohibit physicians from respecting or acting consistently with a form of punishment that the law may mandate in extremely limited circumstances. 

Section VI states that a physician should be free to choose "whom to serve."  If a criminal has committed a murder heinous enough to justify a death sentence under the law of that jurisdiction, after being afforded all the required due process, should not a physician have the choice to serve justice and to participate in such a legal process, especially when it may alleviate the suffering of co-victims?

Section VII encourages a physician to participate in activities contributing to the improvement of the community and betterment of public health.  It seems to us consistent with this Principle to relieve the suffering of co-victims of murder and to participate in a process where a murderer can never murder again.

It is true that these governing Principles are established in the context of a physician acting for the "benefit of the patient."  Furthermore Principle VIII states that for the physician the patient is "paramount."  However, in no meaningful sense is a convicted murderer who will get a lethal injection "a patient;" getting treatment on a voluntary basis being the essence of a patient.   Therefore, these Principles, established by the AMA, seem to support a suspension of its ban on physicians' participation in capital punishment, and there seems nothing inconsistent with this suspension and the "paramount" concern for a "patient." 

The AMA should use its considerable clout to call for honest studies on the actual effects on co-victims of the obstructions and delays carrying out legally sanctioned executions. It is true that those who propose studies that may challenge the prevailing orthodoxies of our elites find it nearly impossible to get funding for these studies.  However, this unsavory fact hardly justifies the failure to call for more studies on this issue.

Upon the completion of thorough and honest studies of the effects on co-victims of both the implementation and obstruction of capital punishment, the AMA's position in its Code of Ethics, whatever it might ultimately be, will at least be a considered and an informed one. This, we believe, would be an improvement over the current AMA position on physician participation in capital punishment.

Henry P. Wickham, Jr. welcomes comments at HWickham@LNLAttorneys.com; Michael Keane welcomes comments at MikeKeane00@hotmail.com
It was the height of fashion in 2005 to campaign to save the life of convicted quadruple murderer, Tookie Williams. Think of those elegant Brentwood galas where women come and go, talking of Michelangelo.  

Celebrity, Mike Farrell, never one to restrain those ostentatious displays of his own goodness, boasted of his efforts in this campaign to "raise the level of civility in this society."  When asked by Dennis Prager if he ever spent time in the homes of the victims, Farrell intemperately accused Dennis Prager of indifference to the guilt or innocence of the condemned.  A revealing triumph of the non sequitur

Dennis Prager's concern for victims is an important one, and it dared disturb Ferrell's universe. This disturbance and Farrell's incoherence are symptoms of a much deeper problem.  The debate over the legitimacy of capital punishment focuses entirely too much on the criminal and its effect on him.  Far too little concern has been paid to the victims and their loved ones.  For the sake of brevity, we will call them "co-victims."

This same lack of concern for the welfare of co-victims of capital crimes is evident in the position taken by the American Medical Association (AMA) on physician participation in capital punishment.  The AMA's Code of Medical Ethics explicitly prohibits physicians from participating in legally sanctioned executions (Opinion 2.06).  This prohibition is broad, and it includes not only the injection of a lethal dose, but also related activities such as monitoring vital signs and inspecting the equipment.

The primary thrust of the AMA's Code of Ethics (as it is for the Hippocratic Oath) is to do no harm.  However, just as the likes Mike Farrell would never spend a penny of celebrity capital for ordinary co-victims of murder, so the position of the AMA ignores its likely deleterious effects on co-victims. The endless obstruction of capital punishment, the AMA's contribution to that obstruction, and the relative leniency of imprisonment may be doing serious harm to the co-victims. 

A 2007 study (Vollum & Longmire, Violence Victims, Volume 22, Number 5, 2007 , pp. 601-619) examined statements by co-victims after the executions were completed.  Few expressed dissatisfaction with the fact that the murderer was executed, but large numbers were dissatisfied with the long delays or the relatively low level of suffering by the criminal.  Many co-victims were relieved that this chapter of their lives had ended.  Was this an end to their suffering and perfect closure?  No, but better for co-victims than the seemingly endless legal procedures and the non-capital alternatives.

If an execution of a convicted murderer brings some benefit to co-victims, does the obstruction of capital punishment cause corresponding harm?  In one study (Cornell Law Review), the responses of co-victims were measured when the accused was legally exonerated.  Even in cases where there was definitive, exculpatory DNA evidence, co-victims often demonstrated significant psychological trauma due to the fact that there would be no execution and seemingly no justice. It seems to us a reasonable inference that if co-victims suffer from a justified exoneration, then co-victims would certainly suffer from unwarranted and politically motivated delays of capital punishment.

Absent definitive studies, there is room for reasonable conjecture on the nature of the suffering of co-victims when justice is delayed or denied. To explore better the possibly damaging effects on co-victims caused by the obstruction of capital punishment, let us use established medical terminology to describe the sufferings of co-victims that can be reasonably inferred. 

When a guilty murderer receives a reprieve on flimsy grounds, can we call the reaction in co-victims an"Axis 1" (ie. major psychiatric disorder) "adjustment disorder" or "anxiety disorder" that would otherwise be taken seriously by the AMA?  When a co-victim suffers life-long debilitating and obsessive thoughts about the incongruity of the murderer being supported by society while the victim is entombed, can we call this obsessive compulsive disorder? 

Should any resulting depression caused by the delay or denial of justice suffered by co-victims be ignored?  Why would the AMA presumably support treatment and benefits for those co-victims diagnosed with any of these disorders, and then take an official position that may contribute to these disorders?

With these potential disorders in mind, studies should be undertaken with another concept in mind.  Whether we call it a sense of injustice or a desire for vengeance, or whether we use psychiatric terminology, there is little dispute that these negative experiences of co-victims are manifest in physical changes in the brain. Some neurons sprout different "buds;" some parts of neurons die; new connections are formed; the chemical milieu at the junctions (synapses) change.  These phenomena demonstrate that the brain is a living, ever-changing, constantly updating organ within which the micro anatomy is ever-growing and retracting and the chemical balance changing.

Obviously both victims and co-victims suffer from the crime itself. But when there is an injustice or seemingly endless delay of justice, there is a profoundly negative experience for the co-victims that will be manifest in additional physical changes in the brain. Biologically, this further injury can be as disabling as that caused by a blow to the head. Thus, suffering, which the AMA purportedly wants to mitigate, could very well be exacerbated by its position on capital punishment.

Further study is needed on both the extent of and the justification for the potentially negative effects on co-victims of unwarranted delays, obstruction, and denial of capital punishment.  Both common sense and anecdotal evidence strongly suggest that real harm is caused to co-victims when this sort of justice is wantonly delayed.  Absent more formal and thorough studies of the effects on co-victims, we believe that the position of the AMA is premature and unjustified, and that AMA should suspend its categorical ban on the participation by physicians in capital punishment, at least until this issue is adequately studied. 

The AMA's own basic "Principles" provide support for this moratorium.  Laws providing for capital punishment are the result of years of experience, reflection, and debate in state legislatures.  Section III of the AMA's Principles states that a physician should "respect the law."  Should the AMA, as a legally constituted medical organization, formally prohibit physicians from respecting or acting consistently with a form of punishment that the law may mandate in extremely limited circumstances. 

Section VI states that a physician should be free to choose "whom to serve."  If a criminal has committed a murder heinous enough to justify a death sentence under the law of that jurisdiction, after being afforded all the required due process, should not a physician have the choice to serve justice and to participate in such a legal process, especially when it may alleviate the suffering of co-victims?

Section VII encourages a physician to participate in activities contributing to the improvement of the community and betterment of public health.  It seems to us consistent with this Principle to relieve the suffering of co-victims of murder and to participate in a process where a murderer can never murder again.

It is true that these governing Principles are established in the context of a physician acting for the "benefit of the patient."  Furthermore Principle VIII states that for the physician the patient is "paramount."  However, in no meaningful sense is a convicted murderer who will get a lethal injection "a patient;" getting treatment on a voluntary basis being the essence of a patient.   Therefore, these Principles, established by the AMA, seem to support a suspension of its ban on physicians' participation in capital punishment, and there seems nothing inconsistent with this suspension and the "paramount" concern for a "patient." 

The AMA should use its considerable clout to call for honest studies on the actual effects on co-victims of the obstructions and delays carrying out legally sanctioned executions. It is true that those who propose studies that may challenge the prevailing orthodoxies of our elites find it nearly impossible to get funding for these studies.  However, this unsavory fact hardly justifies the failure to call for more studies on this issue.

Upon the completion of thorough and honest studies of the effects on co-victims of both the implementation and obstruction of capital punishment, the AMA's position in its Code of Ethics, whatever it might ultimately be, will at least be a considered and an informed one. This, we believe, would be an improvement over the current AMA position on physician participation in capital punishment.

Henry P. Wickham, Jr. welcomes comments at HWickham@LNLAttorneys.com; Michael Keane welcomes comments at MikeKeane00@hotmail.com