In June 2015,
the Supreme Court of the United States upheld lethal injection as a means of
execution for death row inmates. Glossip v. Gross, 135 S.Ct. 2726 (2015).
In the 5-4 decision of Glossip v. Gross, several death row
inmates in Oklahoma challenged the constitutionality of the three-drug
combination used in lethal injection executions. The plaintiffs claimed that
the lethal injection method violates the Eighth Amendment of the Constitution,
because it creates an unacceptable risk of severe pain, and therefore
constitutes cruel and unusual punishment. The District Court, the Tenth Circuit, and the
Supreme Court, all rejected plaintiff’s claim for two reasons. First, in challenging the method of execution,
the plaintiffs were required to identify a known and available alternative
method of execution that entails a lesser risk of pain. However, the Court found
that the plaintiffs failed to meet this requirement. Second, the Court found that
the plaintiffs failed to establish that the challenged drug, midazolam, entails
a substantial risk of severe pain. Therefore, the Court found the three-drug
combination used in lethal injections in Oklahoma constitutional.
Even though the Court held that
lethal injection executions do not present constitutional issues, there is no
doubt that lethal injections raise several ethical concerns. One principal ethical concern is the conflict
between physician involvement in executions and the American Medical
Association’s Code of Medical Ethics.
The death penalty currently exists
in 38 states, 35 of which require or permit physician participation in
executions. However, the AMA’s Code of Medical Ethics
says that physicians have a duty to heal the sick, eliminate suffering, and help,
not harm people. It is clear that the direct result of an
execution is harm to a person. So, it seems that physician participation
in executions is manifestly unethical. This creates a challenging dilemma for
physicians who would be willing to participate in the execution.
Pharmacists are also faced with a difficult
situation as a result of lethal injection executions and the decreasing
availability of the drugs used. Much of
the drugs used previously came from various European countries, however, in
2011, the European Commission imposed tight restrictions on the export of
certain drugs used in executions, citing ethical issues with the death penalty. As
a result, pharmacists must now decide whether or not to fill and dispense the
drugs. While the AMA, the American Public Health Association, the American
Board of Anesthesiology, and the American Nurses Association codes of ethics
all explicitly prohibit participation in executions, the American Pharmacists
Association’s Code of Ethics makes no mention of executions. This leaves pharmacists with no
guidance as to whether or not to participate in executions by dispensing the
necessary drugs.
Another ethical issue presented by
lethal injection is whether it is really as humane as it seems. The method was originally adopted because it
seemed more humane than past methods of execution, such as
hanging, gas chamber, firing squad, and electrocution. However, some recent instances of “botched”
executions have raised questions as to whether lethal injection is really as
humane as it originally seemed.
An alternative method of execution
that was prevalent in the past, but has since taken a back seat to lethal
injection, is death by firing squad. This
method of execution has recently seen revival in two states, Utah and Oklahoma.
In March of 2015, Utah Governor Gary
Herbert signed a bill that allows the use of a firing squad
for execution, if the State is unable to
obtain the drugs necessary to carry out a lethal injection execution. Until 2004, death row inmates were given a
choice of how to die, and among those choices was death by firing squad. Utah eliminated this method in 2004, but since
the signing of the March 2015 bill, it has again become a viable option for
execution of death row inmates in the state. Also, Oklahoma allows death by firing squad if both
lethal injection and electrocution are found to be unconstitutional. But, as seen in Glossip, the lethal injection method used in Oklahoma has been
upheld as constitutional.
While death by firing squad is
definitely less palatable to the general public than lethal injection and may
have its own ethical issues, it may solve the ethical problems posed by lethal injection executions. First, physician and pharmacist participation
is not required, thus solving the medical ethics issue. Second, studies have shown
that the bullets used in firing squad executions typically cause death within
one minute, while lethal injections can take up to nine or ten minutes to cause
death. This lends to the argument that death by
firing squad could be considered more humane than death by lethal injection.
Surely both lethal injection
executions and firing squad executions host a multitude of ethical issues. However, the Supreme Court has found lethal
injection executions to be constitutional, allowing corrections departments to
continue using this controversial method, at least for the time being.
Lacey Rogers is pursuing a J.D. at DePaul
University College of Law in Chicago. Ms. Rogers received her B.A. in
Philosophy, with a Psychology minor, from the University of Toledo in 2014. Ms.
Rogers wishes to pursue a career in Health Law after graduating in May of
2017.