Death Penalty Scrutinized: Court Halts Missouri Physician-Overseen Lethal Drug Execution; Ten States Suspend Executions
The death penalty has come under renewed scrutiny nationwide with nine states suspending executions by lethal injection. Serious questions have been raised both as to Eighth Amendment concerns of excessive pain during this allegedly anesthetized procedure, as well as how to administer anesthetics lawfully without employing a physician-anesthesiologist [whose professional oath disallows intentionally killing patients]. The ethical questions for physicians have merged with increasing national disaffection with the death penalty in activist movements to simply end such state-sanctioned killing. Indeed, only 114 new death sentences were handed down nationally in 2006 and only 53 executions took place. While states remain free to enact death penalty statutes, they are yet subject to federal Eighth Amendment oversight. The resulting dilemma, coupled with the bogging-down of death sentences in protracted appeals often running over 20 years, has put the issue into the national spotlight (e.g., the Washington, D.C.-based National Coalition to Abolish the Death Penalty (NCADP)).
Federal Court Intercedes In Missouri
A “secret” Missouri surgeon who has supervised 54 prisoner executions had his cover pulled and suffered immediate peer criticism, court restriction, and a media barrage. In tension were the Hippocratic Oath of doctors to sustain the life of their patients, physician oversight of the dirty work of Missouri Department of Corrections’ (MDOC) executions, and prisoners’ rights to be free from cruel and unusual punishment. The doctor unavailingly attempted to distance himself by merely setting up the lethal injection execution mechanism, while employing a non-doctor assistant to start the flow of drugs.
He defensively answered reporters’ questions, “Read my lips. I don’t do them.” But the details came out in a U.S. District Court case, in a challenge to allegedly unconscionable pain suffered during botched executions, wherein the court found the shaky process so troubling that it ordered lethal injections halted.
Dr. Alan R. Doerhoff, 62, has been a contract general surgeon with MDOC since 1969. But on the outside, his checkered career netted him at least 20 malpractice suits, and his failure to properly disclose these suits led to his loss of medical practice privileges at two Missouri hospitals. In 1989, when MDOC switched to lethal injection for its executions, Dr. Doerhoff became MDOC’s consultant. In 1995, as a permanent contractor with MDOC, he devised revised execution procedures when a bungled injection due to collapsed veins on drug-addict prisoner Emmitt Foster lasted 30 minutes.
The matter came to light during an appeal by condemned Missouri murder-rapist Michael Taylor, who had challenged the execution procedure as cruel and unusual punishment. A review of execution logs revealed that Dr. Doerhoff’s anesthesia preparations were often only half the required strength. Dr. Doerhoff was called to testify, but did so from behind a screen to protect his identity. Missouri Attorney General Jay Nixon said Doerhoff’s identity had to be kept secret for the doctor’s safety. But this ploy fell apart when facts surrounding Doerhoff’s malpractice history, his official reprimands from the Missouri Board of Healing Arts, and his loss of privileges at two Missouri hospitals -- events allegedly not truthfully reported to MDOC -- exposed his identity. Taylor’s lawyers challenged Dr. Doerhoff’s ethics by bringing up a 1995 lawsuit by a woman patient who claimed Doerhoff was having sex with her while she was under his care, whereupon he performed an operation to restore her virginity and gave her an abortion in a hotel room.
In January 2006, U.S. District Judge Fernando Gaitlan rejected Taylor’s appeal. But three months later, the U.S. Supreme Court agreed to hear such concerns in another case, landing Taylor back in Gaitlan’s court. There, the court became concerned over Dr. Doerhoff’s admitted dyslexia. Gaitlan ordered MDOC to use Board-certified anesthesiologists and to overhaul its execution procedures. In July 2006, MDOC told the court they had made the changes, but could not find a willing anesthesiologist to participate. The court found the revised procedures were “an improvement,” but said there were still “inadequacies with the personnel required to monitor and oversee” the death penalty.
As to Dr. Doerhoff’s future following the recent media blitz, he lamented, “nobody is going to hire me. It’s poisoned my career.”
Federal Court Orders Improved California Procedure
Separately, California corrections officials have suffered a similar conundrum. When trying to execute condemned murder-rapist Michael Morales, the state was stopped by an order from U.S. District Judge Jeremy Fogel, who while announcing he was not ruling on cruelty of the death penalty per se, nonetheless put California on notice that it had to come up with procedures that passed constitutional muster of not causing unusual pain. In Judge Fogel’s court, state witnesses are having their identities strictly protected. The identity of just which member of California’s execution team actually starts the flow of lethal drugs is kept secret.
California has 650 condemned prisoners in various stages of waiting their fate, a protracted process lasting over 20 years because of the slow appellate process. In fact, only about half even have attorneys because of a dearth of “death-qualified” counsel available for appointment. Another bottleneck is the California State Supreme Court. Since all death penalty appeals are made directly to that court, and because it can only handle about a dozen cases per year, a newly arrived Row prisoner may have to wait over 30 years just to get to the first judicial review of his conviction. Collateral attacks and federal writs may tack another decade onto the state delay. Dane Gillette, the California Attorney General’s lead death penalty counsel (nicknamed “Dr. Death” by his colleagues), finds reward in his work because it brings “closure” to the victims’ families. But given the present logjam in California, it may only be Gillette’s grandchildren who bring closure to the victims’ grandchildren.
Ignominious Nazi Germany Connection
Death by lethal injection began its sordid history in Nazi Germany, where Hitler instituted his Euthanasie Programme T-4 in 1934 to “humanely” eliminate whomsoever he deemed “inferior” in his zeal to create an Übermensch society. Twelve million convicts, gypsies, homosexuals, the mentally ill, handicapped, incurably ill, Jews, Poles, Catholics (and others) later, his “mercy killing” state-sanctioned execution legacy left a bitter memory in world history. Dr. Jonathan Groner, a Jewish associate professor of surgery at Ohio State University, stated that he was struck by the parallels between Nazi and U.S. executions because they both use “healing [i.e., physician-assisted] imagery” to justify killing. Today, besides the U.S. [beginning in 1982 in Texas], only China, Guatemala, the Philippines and the United Arab Emirates utilize lethal injection.
The NCADP has investigated the three-drug process, finding that “botched” executions have often come from incorrect dosages or poor manufacturing control of the drugs used. Texas buys its injection drugs on a per-use basis from a distant pharmacy to avoid legal responsibility of the prison health facility in use. The NCADP has put pressure on drug manufacturers to refuse to deliver such products unless ordered by a physician. Political pressure on drug manufacturers is being mounted as well by the business community to invoke moral standards acceptable to stockholders and company directors.
Ten States Suspend Executions
With pending U.S. Supreme Court and district court cases, California, Maryland and Missouri are staying all executions. Florida’s Governor Jeb Bush has done so as well, following a recent highly publicized agonizing 34-minute injection death. Ohio, with 195 condemned prisoners, is awaiting direction from the Sixth Circuit U.S. Court of Appeals, after the May 2, 2005 execution of Joseph Clark took 90 minutes. Clark raised his head from the gurney five times to tell his executioners, “It didn’t work.” New Jersey has proposed eliminating its death penalty. Of 38 states with death penalties on the books, only Nebraska does not offer lethal injection (it uses electrocution). Texas seems to have mastered its injection process, using secret teams. Its success is so vaunted that New Mexico recently, when conducting its first execution in 41 years, hired a Texas-trained contractor for $6,300 to do the job. Even the Bureau of Prisons consulted Texas when they executed Oklahoma City bomber Timothy McVeigh.
While other states grapple with the Hippocratic Oath / doctor-assisted lethal injection execution dilemma, critics suggest going back to hanging, firing squads, electrocution or poison gas.
But the intersection of interminable legal appellate delays, cruelly painful executions, and physicians’ abstention from what must be medically attended procedures may well augur an eventual end to the states’ fervor favoring death penalties. The total number of condemned state prisoners dropped last year to 3,344, down from 3,593 in 2000.
However, a counter-trend is visible in the rise of federal death penalties handed down.
Today’s 47 federal condemned prisoners are double the number from six years ago. In fact, the federal death penalty (by lethal injection) is being sought often within states whose voters have outlawed state-sanctioned killing.
Sources: St. Louis Post-Dispatch, San Francisco Chronicle, Reuters, USA Today, Athens News, San Jose Mercury News, ABC News, Wall St. Journal, NCADP.
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