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Monday, September 08, 2014

"Compassionate Capital Punishment" Oxymoronic doublethink

The Ethicist column of The New York Times recently contained the following question under the headline “Compassionate Capital Punishment.”

Is it ethical for a physician to participate in capital punishment in order to provide a less painful execution than would otherwise be performed? 

A physician who oversees a state’s lethal injection program argues that these “patients” are going to be executed anyway. His professional responsibility is to see that it is done humanely.

Chuck Klosterman, who writes the column, had some trouble with the issue. He opined that if the doctor believed capital punishment as a principle was ethical, then it was arguably acceptable for him to feel ethically bound to help make its conduct more humane.

However, if the doctor’s position is that he believes capital punishment is ethically wrong, but he knows it will still happen regardless of his involvement, the issue remains whether his participation might then be justified because if these people will die anyway, isn’t it ethical to use your medical ability to make the inevitable less painful?

Klosterman concludes, with some equivocation, that participation in an unethical practice on the grounds that it will happen anyway over your objection is wrong. 

He never mentions similar ethical situations physicians have historically faced. 

The most common is assisted suicide and the closely associated compromise of allowing a terminally ill patient to expire without “heroic” medical interference with the natural progression of death. 

While the traditional strict view was that a physician was bound to make every effort to preserve any and all living human beings, the modern view is that when the “quality of life” has so diminished,  at some point — and the consensus at least considers the clearly terminal crisis to be that point — ethics permit, and indeed may require the cessation of measures to preserve life. 

The doctor’s duty then is to provide relief from pain, even if that relief through increasing doses of powerful drugs, shortens “life.” 

For most contemporary medical ethicists, this issue is separate from that of assisted suicide.  But for many others, the additional question of assisted suicide, which is the next short step, is also entering the mainstream as an arguably permissible ethical choice. 

Capital punishment is dissimilar from the plight of a “terminal” patient in at least one important way. From a medical standpoint, the subject is not “terminal.” There is no illness or injury that would lead to an imminent or even an inevitable death. In fact, the “patient” for whom the physician is providing the “humane” death is not ill or injured. He or she is an otherwise healthy person who, if not executed by order of the state, might live many more years without physical pain. 

The emotional pain of guilt and remorse is another issue entirely. Some may believe that it is merciful to relieve criminals from the angst of living with such guilt by terminating their lives in a “humane” manner. Considering the large number of suicides on death rows there may be some merit to this argument, but it is certainly not the law’s purpose nor is it at the mainstream of the arguments supporting physician assisted executions. 

Another example from history is the role of medical personnel in the Holocaust. Many of those who participated in the mass executions of millions in the gas chambers argued (at least retroactively) that they were assisting already doomed people to die “peacefully” — that is, without “excessive violence” or “anxiety.” Physicians, scientists, guards, and collaborators within the camps later made this argument when confronted with their culpability. 

Physicians who performed gruesome experiments on prisoners rationalized their actions by saying that these people were doomed and their “sacrifice” might save future lives. 

My question is whether the “Ethicist” would consider the actions of these doctors acceptable as long as they really believed that the genocide was ethical “in principle.” In other words, a committed Nazi such as Dr. Mengele might be, under this reasoning, acting ethically, by “euthanizing” the disabled, mentally ill, or others condemned as “subhumans” according to Nazi medical theory that doing so was beneficial to the “race.” As long as their terminating was done in a “humane” way, of course.

When it comes to the issue of doctors participating in capital punishment today, my next question is whether, by using their skills to reduce the pain of the execution for the condemned prisoner, they are deceiving themselves into believing that their actions are “humane.” 

It brings into question the whole concept of the “painless” execution. A judge recently wrote that the search for the mixture of lethal drugs that will kill without pain is wrongheaded. The goal of  the death penalty is to punish, and to deter. 

It is by nature a brutal act which the society decrees is in its best interest to commit because of the brutality of the crime for which it is designed to punish. 

Thus, why shouldn’t it be painful? The Eighth Amendment’s ban on “cruel and unusual punishments” was clearly intended by the Enlightenment Era Founders to include traditional unenlightened practices of torture and other forms of execution (drawing and quartering, keelhauling, disemboweling, etc.) which intentionally prolonged agony as a punishment to the condemned and a lesson to others. 

Hanging was the commonly accepted “humane” form of the time and was followed by the technological advance of electrocution and later the gas chamber and now, lethal injection. The appellate courts have pointed to those changes as efforts to spare the condemned from cruelty which they equated with prolonged infliction of pain, even if unintended. 

In reality, the pain of the condemned, though it is the constitutional rationale, is really less critical for many than the squeamish sensibilities of witnesses, the media, and the public. 

When public hangings were a form of mass entertainment, frequent miscalculations regarding physics principles regarding the weight vs distance of fall resulted in bodies writhing for ages before suffocating or the more gruesome alternative: the loud snap of the spinal cord and complete or partial decapitation. Either event turned stomachs in crowds so that they could not enjoy the treats that were being sold. Hangings were thus moved into the enclosed yards of jails and conducted at dawn — to reduce the embarrassment of officials. 

Electrocutions were always performed in relative privacy, behind the walls of prisons, and before a select group of witnesses who were banned from photographing the often grisly event. Popping eyeballs, bleeding orifices, steam and smoke rising, the smell of burning flesh, the writhing of dying bodies, all were commonly reported by the appalled witnesses. 

Death in the gas chamber was described often in terms that might have pleased Edgar Allen Poe or Alfred Hitchcock. The gas pellet dropped into the acid, the fumes rise, the condemned tries to hold his breath, but eventually inhales, writhes, turns green, shudders, faints, awakens, moans, stops. 

And now lethal injection is proven to be no less gruesome — for the witness as much as for the condemned. 

European pharmaceutical companies have balked at providing their products to be used for this purpose. Whether their ethics or business senses are offended by it is a separate question. Some might consider the association of the concept of ethics with drug companies as foreign. 

My concern is with the doctors who deem it their ethical duty to administer the lethal doses in such a system. How many would agree to be state executioner if they discovered afterward that the person they killed was shown to have been innocent. 

This has now happened often enough that it is not merely hypothetical.