Court orders demanding death row inmates to provide "specific, detailed and concrete alternatives" to a state's lethal injection protocol compel those inmates to produce evidence that is impossible to obtain without forcing physicians and other clinicians to violate their medical ethics, according to Harvard bioethicists and legal experts.
Such orders, therefore, the experts argue, pose an insurmountable hurdle for inmates seeking alternative methods of execution.
These are two of the central arguments outlined in a recent amicus brief (or "friend of the court") submitted to the United States Court of Appeals for the Eleventh Circuit by a group of scholars from the Harvard Medical School (HMS) Center for Bioethics, the Harvard Petrie-Flom Center for Health Law Policy, Biotechnology and Bioethics (the Petrie-Flom Center) at Harvard Law School, and other institutions.
To offer an alternative drug regimen for a lethal injection, an inmate's lawyers would have to solicit input from medical professionals. Such involvement, however, would clash with the basic principles of medicine and violate medical ethics, the experts argue in their brief. Such orders, they add, would also have a chilling effect on physicians' willingness to serve as experts in capital punishment cases.
"In the face of such orders and the ethical dilemmas to which they give rise, medical professionals likely would decline to serve as expert witnesses in lethal injection cases in the first place, robbing the parties and the courts of appropriate expert testimony that would assist them in accurately adjudicating the important constitutional issues this and similar cases present," the authors write in the brief.
The case in question involves Alabama death row inmate Thomas D. Arthur, whose execution is scheduled to take place on Nov. 3.
Arthur, who maintains his innocence, is scheduled to die by lethal injection. He claims that the State of Alabama's current lethal injection protocol would cause agonizing pain because it does not provide adequate sedation, and also because the medication would induce a heart attack due to a preexisting cardiac condition.
Arthur's lawyers have argued that this method of execution would violate the Eighth Amendment of the U.S. Constitution, which protects against cruel and unusual punishment.
In July, the district court judge ruled that Arthur had failed to comply with a court order requiring him to provide "specific, detailed, and concrete alternatives or modifications" to Alabama's lethal injection protocol that included "precise procedures, amounts, times and frequencies."
Robert Truog, director of the HMS Center for Bioethics, and I. Glenn Cohen, professor of law at Harvard Law School and faculty director of the Petrie-Flom Center, two of the brief's authors, have been at the forefront of this issue for several years.
"To our knowledge, no code of ethics for any health care profession anywhere in the world condones the participation of its members in executions," Truog and Cohen wrote in a 2014 article published in JAMA.
The American Medical Association contends that physician participation in state-sponsored execution violates physicians' oaths to protect human life and erodes public confidence in the medical profession. According to the AMA, participation in an execution is defined by actions that would directly cause the death of the condemned; would assist, supervise, or contribute to the ability of another individual to directly cause the death of the condemned; or could automatically cause an execution to be carried out on a condemned prisoner.
The brief further makes it clear that even suggesting an alternative to a lethal injection protocol would go contrary to medical ethics. Requiring such evidence from inmates poses an impossible burden on them, the experts conclude.
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