Saturday, 2 June 2007
Capital punishment in the US these days is invariably carried out by injection, often administered by a medical professional. But what makes doctors and nurses, trained to save lives, get involved? Atul Gawande, an American surgeon, asked them
Doctor A and his family have lived in their small town for 30 years. He is well respected. Almost everyone of local standing comes to see him as their primary-care physician - the bankers, his fellow doctors, the mayor. Among his patients is the warden of the maximum-security prison that happens to be in his town. One day, several years ago, the two of them got talking during an appointment. The warden complained of difficulties staffing the prison clinic and asked Dr A if he would be willing to see prisoners there occasionally. Dr A said he would.
Then, a year or two later, the warden asked him for help with a different problem. The state had the death penalty, and the legislature had voted to use lethal injection exclusively. The executions were to be carried out in the warden's prison. He needed doctors, he said. Would Dr A help? He would not have to deliver the lethal injection. He would just help with cardiac monitoring.
'My wife didn't like it,' Dr A told me. But he felt torn. 'I knew something about the past of these killers.' One of them had killed a mother of three during a convenience-store robbery and then, while getting away, shot a man who was standing at his car pumping gas. Another convict had kidnapped, raped and strangled to death an 11-year-old girl. 'I do not have a very strong conviction about the death penalty, but I don't feel anything negative about it for such people either. The execution order was given legally by the court. And morally, if you think about the animal behaviour of some of these people...' Ultimately, he decided to participate, he said, because he was only helping with monitoring, because he was needed by the warden and his community, because the sentence was society's order and because the punishment did not seem wrong.
At the first execution, he was instructed to stand behind a curtain watching the inmate's heart rhythm on a cardiac monitor. Neither the witnesses on the other side of the glass nor the prisoner could see him. A technician placed two IV lines. Someone he could not see pushed the three drugs, one right after another. Watching the monitor, he saw the normal rhythm slow, then the waveforms widen. He recognised the tall peaks of potassium toxicity, followed by the fine spikes of ventricular fibrillation and finally the flat, unwavering line of an asystolic cardiac arrest. He waited half a minute, then signalled to another physician, who went out before the witnesses to place his stethoscope on the prisoner's chest. The doctor listened for 30 seconds and then told the warden the inmate was dead. Half an hour later, Dr A was released. He made his way through a side door, past the crowd gathered outside, to his parked car and headed home.
In three subsequent executions there were difficulties, though, all with finding a vein for an IV. The prisoners were either obese or past intravenous drug users, or both. The technicians would stick and stick and, after half an hour, give up. This was a possibility the warden had not prepared for. Dr A had placed numerous lines. Could he give it a try?
OK, Dr A decided. Let me take a look.
This was a turning point, though he didn't recognise it at the time. He was there to help, they had a problem and so he would help. It did not occur to him to do otherwise.
In two of the prisoners, he told me, he found a good vein and placed the IV. In one, however, he could not find a vein. All eyes were on him. He felt responsible for the situation. The prisoner was calm. Dr A remembered the prisoner saying to him, almost to comfort him, 'No, they can never get the vein.' The doctor decided to place a central line, an intravenous line that goes directly into the chest. People scrambled to find a kit.
He opened the kit for the triple-lumen catheter and explained to the prisoner everything he was going to do. I asked him if he was afraid of the prisoner. 'No,' he said. The man was perfectly co-operative. Dr A put on sterile gloves, gown and mask. He swabbed the man's skin with antiseptic.
Why? I asked.
'Habit,' he said. He injected local anaesthetic. He punctured the vein with one stick. He checked to make sure he had a good, non-pulsatile flow of venous blood coming out. He threaded a guide wire through the needle, a dilator over the guide wire and finally slid the catheter in. All went smoothly. He flushed the lines with saline, secured the catheter to the skin and put a clean dressing on, just as he always does. Then he went back behind the curtain to monitor the lethal injection.
Certainly, all boundary lines had been crossed. He had agreed to take part in the executions simply to watch a monitor, but just by being present, by having expertise, he had opened himself to being called on to do steadily more, to take responsibility for the execution itself. Perhaps he was not the executioner. But he was damn close to it.
Execution has become a medical procedure in the US. That fact has forced a few doctors and nurses, asked to participate in executions, to have to choose between the ethical codes of their professions and the desires of broader society. There are vital but sometimes murky differences between acting skilfully, acting lawfully and acting ethically.
On February 14, 2006, a United States district court issued an unprecedented ruling concerning the California execution by lethal injection of the murderer Michael Morales. The ruling ordered the state to have a physician, specifically an anaesthetist, personally supervise the execution or else to drastically change the standard protocol for lethal injections. Under that protocol, the anaesthetic sodium thiopental is given in massive doses that are expected to stop breathing and extinguish consciousness within one minute of administration; then the paralytic agent pancuronium is given, followed by a fatal dose of potassium chloride.
The judge found, however, that evidence from execution logs showed that six of the previous eight prisoners executed in California had not stopped breathing before technicians gave the paralytic agent; the findings raised a serious possibility that the prisoners had experienced suffocation from the paralytic, a feeling much like being buried alive, and felt intense pain from the potassium bolus. This experience would be unacceptable under the US constitution's Eighth Amendment protections against cruel and unusual punishment. So the judge ordered the state to have an anaesthetist present in the death chamber to determine when the prisoner was unconscious enough for the second and third injections to be given - or to have a general physician supervise an execution performed with sodium thiopental alone.
The California Medical Association, the American Medical Association (AMA) and the American Society of Anesthesiologists (ASA) immediately opposed such physician participation as a clear violation of their medical ethics codes. 'Physicians are healers, not executioners,' the ASA's president said. The execution was then postponed (Morales remains on death row), but federal courts have since continued to require that medical professionals assist with the administration of any execution by lethal injection.
The Morales ruling is the culmination of a steady evolution in methods of execution in the United States. On July 2, 1976, in deciding the case of Gregg v Georgia, the Supreme Court legalised capital punishment after a decade-long moratorium on executions. Executions resumed six months later, on January 17, 1977, in Utah, with the death by firing squad of Gary Gilmore for the killing of Ben Bushnell, a motel manager.
Death by firing squad, however, came to be regarded as a method too bloody and uncontrolled. (Gilmore's heart, for example, did not stop until two minutes after he was shot, and shooters have sometimes weakened at the trigger, as famously happened in 1951 in Utah when the five riflemen fired away from the target over Elisio Mares's heart, only to hit his right chest and cause him to bleed slowly to death.)
Hanging came to be regarded as even more inhumane. Under the best of circumstances, the cervical spine is broken at the second vertebra, the diaphragm is paralysed and the prisoner suffocates to death, a minutes-long process.
Gas chambers proved no better: asphyxiation from cyanide gas, which prevents cells from using oxygen by inactivating a vital enzyme known as cytochrome oxidase, took even longer than death by hanging, and the public revolted at the vision of suffocating prisoners fighting for air and then seizing as the ability to use oxygen shut down. In Arizona in 1992, for example, the asphyxiation of triple murderer Donald Harding took 11 minutes, and the sight was so horrifying that reporters began crying, the attorney general vomited and the prison warden announced he would resign if forced to conduct another such execution. Since 1976, only two prisoners have been executed by firing squad, three by hanging and 11 by gas chamber.
Many more executions, 74 of the first hundred after Gregg and 153 in all, were by electrocution, which was thought to cause a swifter death. But the electrical flow frequently arced, cooking flesh and sometimes igniting prisoners - postmortem examinations often had to be delayed for the bodies to cool - and yet in the case of some prisoners, it took repeated jolts to kill them. In Alabama in 1979, John Louis Evans III was still alive after two cycles of 2,600 volts; the warden called Governor George Wallace, who told him to keep going, and only after a third cycle, with witnesses screaming in the gallery, and almost 20 minutes of suffering, did Evans finally die. Only Florida, Virginia and Alabama persisted with electrocutions with any frequency, and under threat of Supreme Court review they too abandoned the method.
Lethal injection now appears to be the sole method of execution accepted by courts as humane enough to satisfy Eighth Amendment requirements - largely because it medicalises the process. The prisoner is laid supine on a hospital gurney. A white bedsheet is drawn to his chest. An intravenous line flows into his arm. Under the protocol devised in 1977 by Dr Stanley Deutsch, the chairman of anaesthetics at the University of Oklahoma, prisoners are first given 2,500 to 5,000mg of sodium thiopental (five to 10 times the recommended maximum for therapeutic use), which can produce death all by itself by causing complete cessation of the brain's electrical activity, followed by respiratory arrest and circulatory collapse. Death, however, can take 15 minutes or longer with thiopental alone, and the prisoner may appear to gasp, struggle or convulse. So 60 to 100mg of pancuronium (10 times the usual dose) is injected one minute or so after the thiopental to paralyse the muscles. Finally 120 to 240 milliequivalents of potassium is given to produce rapid cardiac arrest.
Officials liked this method. Because it borrowed from established anaesthesia techniques, it made execution more like familiar medical procedures than the grisly, backlash-inducing spectacle it had become. (In Missouri executions were even moved to a prison-hospital procedure room.) The drugs were cheap and routinely available. (Cyanide gas and 30,000-watt electrical generators, by comparison, were awfully hard to find.) And officials could turn to doctors and nurses to help with technical difficulties, attest to the painlessness and trustworthiness of the technique and lend a more professional air to the proceedings.
But in 1980, when the first execution was planned using Deutsch's technique, the AMA passed a -resolution against physician participation as a violation of core medical ethics. The resolution was quite general. It did not address, for example, whether pronouncing death at the scene - something doctors had done at previous executions - was acceptable or not. So the AMA further clarified the ban in its 1992 Code of Medical Ethics. Article 2.06 states, 'A physician, as a member of a profession dedicated to preserving life when there is hope of doing so, should not be a participant in a legally authorised execution,' although a physician's opinion about capital punishment remains 'the personal moral decision of the individual'.
It stipulates that unacceptable participation includes prescribing or administering medications as part of the execution procedure, monitoring vital signs, rendering technical advice, selecting injection sites, starting or supervising placement of intravenous lines or simply being present as a physician. Pronouncing death is also considered unaccept-able, because the physician is not permitted to revive the prisoner if he is found to be alive. Only two actions are acceptable: provision at the prisoner's request of a sedative to calm anxiety beforehand and signing a death certificate after another person has pronounced death.
Today all 38 death-penalty states rely on lethal injection. Of 1,045 murderers executed since 1976, 876 were executed by injection. Against vigorous opposition from the AMA and state medical societies, 35 of the 38 states allow physician participation in executions. Indeed, 17 require it. To protect participating physicians from licence challenges for violating ethics codes, states commonly promise anonymity and provide legal immunity from such challenges. None the less, despite the promised anonymity, several states have produced the physicians in court to vouch publicly for the legitimacy and painlessness of the procedure. And despite the immunity, several physicians have faced licence challenges, though none has lost as yet.
States have affirmed that physicians and nurses - including those who are prison employees - have a right to refuse to participate in any way in executions. Yet they have found physicians and nurses who are willing to participate. Why do these -people do it?
It is not easy to find answers. Among the 15 medical professionals I was able to locate who have helped with executions, only five agreed to speak with me. None was a zealot for the death penalty, and none had a simple explanation for why they did this work.
Dr A has helped with about eight executions in his state. I asked him whether he had known that his actions violated the AMA's ethics code. 'I never had any inkling,' he said. The humaneness of a lethal injection Dr A was involved in was challenged in court, however. The state summoned him for a public deposition on the process, including the particulars of the execution in which the prisoner required a central line. His local newspaper printed the story. Word spread through his town. Not long after, he arrived at work to find a sign pasted to his clinic door reading 'the killer doctor'. A challenge to his medical licence was filed with the state. If he wasn't aware earlier that there was an ethical issue at stake, he was now.
Ninety per cent of his patients supported him, he said, and the state medical board upheld his licence under a law that defined participation in executions as acceptable activity for a physician. But he decided that he wanted no part of the controversy any more and quit. He still defends what he did. Had he known of the AMA's position, though, 'I never would have gotten involved,' he said.
Dr B spoke to me between clinic appointments. He is a family physician, and he has participated in some 30 executions. He became involved long ago, when electrocution was the primary method, and then continued through the transition to lethal injections. He remains a participant to this day. Dr B, too, had first been approached by a patient. 'One of my patients was a prison investigator,' he said. 'I never quite understood his role, but he was an intermediary between the state and the inmates. He was hired to monitor whether the state was taking care of them. They had the first two executions after the death penalty was reinstated, and there was a problem with the second one, where the physicians were going in a minute or so after the event and still hearing heartbeats. The two physicians were doing this out of courtesy, because the facility was in their area. But the case unnerved them to the point that they quit. The officials had a lot of trouble finding another doctor after that. So that was when my patient talked to me.'
Dr B did not really want to get involved. He was in his forties. He'd gone to a top medical school. He'd protested the Vietnam War in the 1960s. 'I've gone from radical hippie to middle-class American over the years,' he said. 'I wasn't on any band-wagons any more.' But his patient said the team needed a physician only to pronounce death. Dr B had no personal objection to capital punishment. So in the moment - 'it was a quick judgement' - he agreed, 'but only to do the pronouncement'.
The execution was a few days later by electric chair. It was an awful sight, he said. 'They say an electrocution is not an issue. But when someone comes up out of that chair six inches, it's not for nothing.' He waited a long while before going out to the prisoner. When he did, he performed a systematic examination. He checked for a carotid pulse. He listened to the man's heart three times. He looked for a pupil response with his penlight. Only then did he pronounce the man dead.
He thought harder about whether to stay involved after that, and drew thicker boundaries around his participation. During the first lethal injections, he and another physician 'were in the room when they were giving the drugs,' he said. 'We could see the telemetry [the cardiac monitor]. We could see a lot of things. But I had them remove us from that area. I said, I do not want any access to the monitor or the EKGs [electrocardiograms]... A couple of times they asked me about recommendations in cases in which there were venous access problems. I said, "No. I'm not going to assist in any way." They would ask about amounts of medicines. They had problems getting the medicines. But I said I had no interest in getting involved in any of that.'
Dr B kept himself at some remove from the execution process, but he would be the first to admit that his is not an ethically pristine position. When he refused to provide additional assistance, the execution team simply found others who would.
'I agonise over the ethics of this every time they call me to go down there,' he said. His wife knew about his involvement from early on, but he could not bring himself to tell his children until they were grown. He has let almost no one else know. Even his medical staff is unaware.
The trouble is not that the lethal injections seem cruel to him. 'Mostly, they are very peaceful,' he said. The agonising comes instead from his doubts about whether anything is accomplished. 'The whole system doesn't seem right,' he told me. 'I see more and more executions, and I really wonder... It just seems like the justice system is going down a dead-end street. I can't say that [lethal injection] lessens the incidence of anything. The real depressing thing is that if you don't get to these people before the age of three or four or five, it's not going to make any difference in what they do. I don't see [executions] as saying anything about that.'
The medical people most wary of speaking to me were those who worked as full-time employees in state prison systems. None the less, a nurse, who had worked in a prison out west, agreed to talk.
Nurse C had fought as a marine in Vietnam. As an army reservist, he served with a surgical unit in Bosnia and in Iraq. He worked for many years on critical-care units and, for almost a decade, as nurse manager for a busy emergency department. He then took a job as the nurse in charge for his state penitentiary, where he helped with one execution by lethal injection.
It was the state's first execution by this method, and 'at the time, there was great naivety about it,' he said. 'No one in that state had any idea what was involved.' The warden had a protocol from Texas and thought it looked pretty simple. What did he need medical personnel for? The warden told the nurse that he would start the IVs himself, though he had never started one before.
'Are you, as a doctor, going to let this person stab the inmate for half an hour because of his inexperience?' Nurse C asked me. 'I wasn't.' He said, 'I had no qualms. If this is to be done correctly, if it is to be done at all, then I am the person to do it.'
This is not to say that he felt easy about it, - however. 'As a marine and as a nurse, I hope I will never become someone who has no problem taking another person's life.' But society had decided the punishment and had done so carefully with multiple judicial reviews, he said. The convict had killed four people even while in prison. He had arranged for an accomplice to blow up the home of a county attorney he was angry with while the attorney, his wife and their child were inside. The nurse did not disagree with the final judgment that this man should be put to death, and took his involvement seriously. 'As the leader of the healthcare team,' he said, 'it was my responsibility to make sure that everything was done in a way that was professional and respectful to the inmate as a human being.' He spoke to an official at the state nursing board about the process, and although involvement is against nursing's ethics code, the board said that under state law he was permitted to do everything except push the drugs.
On the day of the execution, the nurse dressed as if for an operation, in scrubs, mask, hat, gown and gloves. He explained to the prisoner exactly what was going to happen. He placed two IVs and taped them down. The warden read the final order to the prisoner and allowed him his last words. 'He didn't say anything about his guilt or his innocence,' the nurse said. 'He just said that the execution made all of us involved killers just like him.'
I have personally been in favour of the death penalty. I was a senior official in the 1992 Clinton presidential campaign and in the administration, and in that role I defended the president's stance in support of capital punishment. I have no illusions that the death penalty deters anyone from murder. I also have great concern about the ability of our justice system to avoid putting someone innocent to death. However, I believe there are some human beings who do such evil as to deserve to die. I am not troubled that Timothy McVeigh was executed for the 168 people he killed in the Oklahoma City bombing or that John Wayne Gacy was for committing 33 murders.
Still, I hadn't thought much about exactly how the executions are done. And I have always instinctively regarded involvement in executions by physicians and nurses as wrong. The public has granted us extraordinary and exclusive dispensation to administer drugs to people, to cut them open, to do what would otherwise be considered assault, because we do so on their behalf - to save their lives and provide them comfort. To have the state take control of these skills for its purposes against a human being - for punishment - seems a dangerous perversion.
My conversations with the physicians and the nurse I tracked down, however, rattled both these views - and no conversation more so than one I had with the final doctor I spoke to. Dr D is a 45-year-old emergency physician. He is also a volunteer medical director for a shelter for abused children. He opposes the death penalty because he regards it as inhumane, immoral and pointless. And he has participated in six executions so far.
About a decade ago a new jail was built down the street from the hospital where he worked, and it had a large infirmary, 'the size of our whole emergency room'. The jail needed a doctor. So, out of curiosity as much as anything, Dr D began working there. 'I found that I loved it,' he said. 'Jails are an under-served niche of healthcare.' Jails, he pointed out, are different from prisons in that they house people who are arrested and awaiting trial. Most are housed only a few hours to days and then released. 'The substance abuse and noncompliance is high. The people have a wide variety of medical needs. It is a fascinating population. The setting is very similar to the ER. You can make a tremendous impact on people and on public health.' Over time, he shifted more and more of his work to the jail system. He built a medical group for the jails in his area and soon became an advocate for correctional medicine.
Three years ago the doctors who had been involved in executions in his state pulled out. Officials asked Dr D if he would take the contract. Before answering he went to observe an execution. 'It was a very emotional experience for me,' he said. 'I was shocked to witness something like this.' He had opposed the death penalty since college, and nothing he saw made him feel any differently. But at the same time he felt there were needs that he as a correctional physician could serve.
He read about the ethics of participating. He knew about the AMA's stance against it. Yet he also felt an obligation not to abandon inmates in their dying moments. 'We, as doctors, are not the ones deciding the fate of this individual,' he said. 'The way I saw it, this is an end-of-life issue, just as with any other terminal disease. It just happens that it involves a legal process instead of a medical process. When we have a patient who can no longer survive his illness, we as physicians must ensure he has comfort. [A death-penalty] patient is no different from a patient dying of cancer - except his cancer is a court order.' Dr D said he has 'the cure for this cancer' - abolition of the death penalty - but 'if the people and the government won't let you provide it, and a patient then dies, are you not going to comfort him?'
His group took the contract, and he has been part of the medical team for each execution since. The doctors are available to help if there are difficulties with IV access, and Dr D considers it their task to ensure that the prisoner is without pain or suffering through the process. He himself provides the cardiac monitoring and the final determination of death. Watching the changes on the two-line EKG tracing, 'I keep having that reflex as an ER doctor, wanting to treat that rhythm,' he said. Aside from that, his main reaction is to be sad for everyone involved - the prisoner whose life has led to this, the victims, the prison officials, the doctors. The team's payment is substantial - $18,000 - but he donates his portion to the children's shelter where he volunteers.
Three weeks after speaking to me, he told me to go ahead and use his name. It is Carlo Musso. He helps with executions in Georgia. He didn't want to seem as if he were hiding anything, he said. He didn't want to invite trouble either. But activists have already challenged his licence and his membership in the AMA, and he is resigned to the fight. 'It just seems wrong for us to walk away, to abdicate our responsibility to the patients,' he said.
There is little doubt that lethal injection can be painless and peaceful, but as the courts have -recognised, ensuring that it is requires significant medical assistance and judgement - for placement of intravenous lines, monitoring of consciousness and adjustments in medication timing and dosage. How, then, to reconcile the conflict between government efforts to provide a medical presence and our ethical principles forbidding it? Are our ethics what should change?
The doctors' and nurse's arguments for competence and comfort in the execution process certainly have force and they gave me pause. But however much these practitioners may wish to comfort a patient, it ultimately seems clear that the inmate is not really their patient. Unlike genuine patients, an inmate has no ability to refuse the physician's 'care' - indeed, the inmate and his family are not even permitted to know the physician's identity. And the medical assistance provided primarily serves the government's purposes - not the inmate's needs as a patient. Medicine is being made an instrument of punishment. The hand of comfort that more gently places the IV, more carefully times the bolus of potassium, is also the hand of death. We cannot escape this truth.
This truth is what convinces me that we should stand with the ethics code and legally ban the participation of physicians and nurses in executions. And if it turns out that executions cannot then be performed without, as the courts put it, 'unconstitutional pain and cruelty', the death penalty should be abolished.
· This is an edited extract from 'Better: A Surgeon's Notes on Performance' by Atul Gawande (Profile Books), available for $11.99 plus £1.25 p&p from Telegraph Books (0870-428 4112; books.telegraph.co.uk)