Amicus Curiae Brief — Russell Bucklew, Petitioner v. Anne L. Precythe, Director, Missouri Department of Corrections, et al.

Supreme Court briefJul 23, 2018

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NO. 17-8151

In the Supreme Court of the United States

RUSSELL BUCKLEW,

Petitioner,

ANNE L. PRECYTHE, DIRECTOR,

MISSOURI DEPARTMENT OF CORRECTIONS, et al.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Eighth Circuit

BRIEF OF AMERICAN MEDICAL ASSOCIATION,

AMICUS CURIAE, IN SUPPORT OF NEITHER PARTY

Leonard A. Nelson

Counsel of Record

Erin G. Sutton

AMERICAN MEDICAL ASSOCIATION

Office of General Counsel

330 N. Wabash Ave.

Suite 39300

Chicago, Illinois 60611

312/464-5532

Leonard.nelson@ama-assn.org

Counsel for Amicus Curiae

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

TABLE OF CONTENTS

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . ii

INTEREST OF AMICUS . . . . . . . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . 3

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

I. It Would Be Unethical for a Physician to Assist

a Court or Executioner in Devising a Method of

Capital Punishment by Testifying About the

Comparative Levels of Pain a Condemned

Prisoner Would Likely Suffer Under Alternative

Execution Scenarios. . . . . . . . . . . . . . . . . . . . . . . 4

A. Physicians Are Ethically Prohibited from

Participating in Execution by the Historic

and Prevailing Standards of the Medical

Profession. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

B. Physician Assistance in the Design of

Executions Would Undermine the PhysicianPatient Relationship. . . . . . . . . . . . . . . . . . . . 9

C. Physician Participation in Executions Would

Falsely Suggest that Capital Punishment can

be Effectuated Humanely, with the

Endorsement of the Medical Profession. . . . 12

II. Amicus Takes No Position on the Substantive

Issues, Including the Medical Questions that

Underlie this Case. . . . . . . . . . . . . . . . . . . . . . . 17

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

TABLE OF AUTHORITIES

CASES

Bates v. State Bar of Ariz.,

433 U.S. 350 (1977) . . . . . . . . . . . . . . . . . . . . . . . 6

Baze v. Rees,

553 U.S. 35 (2008) . . . . . . . . . . . . . . . . 6, 8, 15, 16

Cruzan v. Dir., Mo. Dep’t of Health,

497 U.S. 261 (1990) . . . . . . . . . . . . . . . . . . . . . . . 6

Ferguson v. City of Charleston,

532 U.S. 67 (2001) . . . . . . . . . . . . . . . . . . . . . . . . 6

Glossip v. Gross,

135 S. Ct. 2726 (2015) . . . . . . . . . . . . . . . . . . . . 15

Lilly v. Commissioner,

343 U.S. 90 (1952) . . . . . . . . . . . . . . . . . . . . . . . . 6

Nat’l Fed’n of Indep. Bus. v. Sebelius,

567 U.S. 519 (2012) . . . . . . . . . . . . . . . . . . . . . . . 6

NIFLA v. Becerra,

No. 16-1140, slip op. (U.S. Jun. 26, 2018) . . 10, 11

N. Carolina Dep’t of Correction v. N. Carolina Med.

Bd.,

675 S.E.2d 641 (2009) . . . . . . . . . . . . . . . . . . . . 15

Roe v. Wade,

410 U.S. 113 (1973) . . . . . . . . . . . . . . . . . . . . . . . 6

Rust v. Sullivan,

500 U.S. 173 (1991) . . . . . . . . . . . . . . . . . . . . . . . 6

Vacco v. Quill,

521 U.S. 793 (1997) . . . . . . . . . . . . . . . . . . . . . . . 6

iii

Washington v. Glucksberg,

521 U.S. 702 (1997) . . . . . . . . . . . . . . . . . . . . . . . 6

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. VIII . . . . . . . . . . . . . . . . . . . . . 17

OTHER AUTHORITIES

63rd Gen. Assembly of the World Med. Ass’n, in

WMA Resolution to Reaffirm the WMA’s

Prohibition of Physician Participation in Capital

Punishment (Oct. 2012) . . . . . . . . . . . . . . . . . . . . 8

ACCP CODE OF ETHICS, https://goo.gl/DVjkD5

(last visited Jul. 18, 2018) . . . . . . . . . . . . . . . . . . 7

AMERICAN COLLEGE OF PHYSICIANS: POLICY

COMPENDIUM, https://goo.gl/e7ckDx

(last visited Jul. 18, 2018) . . . . . . . . . . . . . . . . 7, 8

AMA Code of Medical Ethics (2018) . . . . . . 2, 4, 6, 17

Opinion 1.1.1—Patient-Physician Relationships,

available at https://goo.gl/qKXwA6 . . . . . . . . . . . 9

Opinion 9.7.3—Capital Punishment,

available at https://goo.gl/VDB4t8 . . . . . . . . . . . 6

Preamble and Principles of Medical Ethics,

available at https://goo.gl/rcEZ9u . . . . . . . . . . 4, 9

Am. Psychiatric Ass’n Principles of Med. Ethics

(2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Am. Public Health Ass’n, Participation of Health

Professionals in Capital Punishment, Policy

Number 200125 (Jan. 2001) . . . . . . . . . . . . . . . . 8

Atul Gawande, When Law and Ethics Collide: Why

Physicians Participate in Executions, 354 N.

ENG. J. MED. 1222 (2006) . . . . . . . . . . . . . . . . . . 10

Brief of amicus curiae American Society of

Anesthesiologists Supporting Neither Party,

Baze v. Rees, 553 U.S. 35 (2008) . . . . . . . . . . . . . 8

Christopher J. Levy, Conflict of Duty: Capital

Punishment Regulations and AMA Medical

Ethics, 26 J. LEGAL MED. 261 (2005) . . . . . . . . . 13

Dora B. Weiner, The Real Doctor Guillotin, 220

JAMA 85 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . 12

Francis W. Peabody, The Care of the Patient, 88

JAMA 877 (1927) . . . . . . . . . . . . . . . . . . . . . . 9, 13

HIPPOCRATIC OATH, https://goo.gl/3k4CMc

(last visited Jul. 18, 2018) . . . . . . . . . . . . . . . . . . 5

Joan M. LeGraw & Michael A. Grodin, Health

Professionals in Lethal Injection in the United

States, 24 HUMAN RIGHTS Q. 382 (2002) . . . . . . 14

Joel B. Zivot, Lethal Injection: States

Medicalize Execution, 49 U. RICH. L. REV. 711

(2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15, 17

Mahmoud Rayes et al., Hangman’s Fracture: A

Historical and Biomechanical Perspective, 14 J.

NEUROSURG. SPINE 198 (2011) . . . . . . . . . . . . . 13

Meghan S. Skelton, Lethal Injection in the Wake of

Fierro v. Gomez, 19 T. JEFFERSON L. REV. 1

(1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Melissa Bailey, So Long, Hippocrates. Medical

Students Choose Their Own Oaths, STAT

(Sep. 21, 2016), https://goo.gl/YMF3Ls . . . . . . . . 6

Peter Tyson, The Hippocratic Oath Today, NOVA

(Mar.

27,

2001),

available

https://goo.gl/V2X7Up . . . . . . . . . . . . . . . . . . . . . 6

Robert D. Troung & Troyan A. Brennan, Sounding

Board: Participation of Physicians in

Capital Punishment, 329 N. ENG. J. MED. 1346

(1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

State by State Lethal Injection, DEATH PENALTY

INFORMATION CENTER, https://goo.gl/ZxhVS7

(last visited Jul. 18, 2018) . . . . . . . . . . . . . . . . . 15

States With and Without the Death Penalty, DEATH

PENALTY INFORMATION CENTER,

https://goo.gl/ogXhC1 (last visited Jul. 18, 2018)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Sylvia R. Cruess et al., “Profession”: A Working

Definition for Medical Educators, 16 TEACH.

LEARN. MED. 74 (2004) . . . . . . . . . . . . . . . . . . . . . 4

Thomas Tung & Claude H. Organ, Jr., Ethics in

Surgery: Historical Perspective, 135 JAMA 10

(2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6

Timothy F. Murphy, Physicians, Medical Ethics,

and Capital Punishment, 16 J. CLIN. ETHICS 160

(2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

INTEREST OF AMICUS1

The American Medical Association (AMA) is the

largest professional association of physicians, residents

and medical students in the United States.

Additionally, through state and specialty medical

societies and other physician groups seated in its

House of Delegates, substantially all physicians,

residents, and medical students in the United States

are represented in the AMA’s policy making process.

The AMA was founded in 1847 to promote the art and

science of medicine and the betterment of public

health, and these remain its core purposes. AMA

members practice in every state and in every medical

specialty.

The petitioner in this case, Mr. Russell Bucklew,

asserts that he suffers from a rare and severe medical

condition that will make his death by execution under

the State of Missouri’s standing execution

protocol—death by lethal injection—cruel and

inhumane. Instead, he asks the State to execute him by

lethal gas. The State contends that in order to succeed

on this claim he must show that the alternative method

is readily available and will “substantially reduce the

risk of severe pain,” and that he has not done so

because he has failed to offer sufficient evidence that

one method is preferable over another. Brief in

Opposition to Petition for Writ of Certiorari and in

The parties have consented to the filing of this brief. No party’s

counsel authored this brief in whole or in part. No party or counsel

for a party made a monetary contribution intended to fund the

preparation or submission of the brief. No person other than the

AMA made a monetary contribution.

Opposition to Application for Stay of Execution at 2836. Dr. Joel Zivot, an expert witness for Mr. Bucklew,

felt ethically unable to compare the medical

consequences of the alternative forms of execution

allowed under Missouri law, and thus, according to the

State, Mr. Bucklew failed to carry his burden of proof.

Petition for Writ of Certiorari at 15.

This brief, submitted in support of neither party, is

intended to lend context to Dr. Zivot’s ethical stance.

Physicians are members of a profession dedicated to

preserving life, even when the hope of doing so is

slight. Although state-mandated death is not a medical

procedure, society continually attempts to medicalize

this action in a self-deceiving effort to mitigate its

barbarity.

The AMA uses this opportunity to restate the

prohibition against physician participation in

executions and explain the historic and modern

rationales behind its position. Furthermore, as the

publisher of the AMA Code of Medical Ethics,2 the AMA

has an interest in supporting physicians who behave

ethically and in explaining the rationale behind the

ethical positions of the medical profession.

Most importantly, though, the AMA believes the

public should appreciate, on an important topic like

capital punishment, what medical science knows and

what it does not know. The decision to authorize

execution should be based on a frank evaluation of that

The AMA Code of Medical Ethics is available from the AMA in

print form and also through the AMA website at https://www.amaassn.org/delivering-care/ama-code-medical-ethics.

uncertainty, rather than on a mistaken notion of what

may be unduly characterized as “humane” or

“dignified.”

SUMMARY OF ARGUMENT

Starting with its origins at the time of Hippocrates,

the medical profession has staunchly opposed physician

assistance in state-mandated executions.

This

prohibition is based on more than happenstance or

arbitrary tradition. Physician participation in capital

punishment undermines the trust patients must accord

their physicians in order for physicians to practice

effectively. Furthermore, physician participation in

executions falsely suggests to society that capital

punishment can be carried out humanely, with the

endorsement of the medical profession. Physicians

should not further such a charade. Accordingly, Dr.

Zivot is correct—testimony used to determine which

method of execution would reduce physical suffering

would constitute physician participation in capital

punishment and would be unethical.

In addition, notwithstanding that technical medical

issues may well underlie this Court’s ultimate decision,

the AMA declines to comment on those issues or to

advocate for either party as to which method of death

may be constitutionally preferred. The reasons for this

“no position” stance are the same as those which

underlay Dr. Zivot’s prohibition: the AMA, being an

organization of physicians, cannot ethically support or

facilitate either method of capital punishment.

ARGUMENT

I. It Would Be Unethical for a Physician to Assist

a Court or Executioner in Devising a Method

of Capital Punishment by Testifying About the

Comparative Levels of Pain a Condemned

Prisoner Would Likely Suffer Under

Alternative Execution Scenarios.

A. Physicians Are Ethically Prohibited from

Participating in Execution by the Historic

and Prevailing Standards of the Medical

Profession.

The practice of medicine is a skilled profession

anchored in the core ethical precept of beneficence to

the patient. Thus, the Preamble to the Principles of

Medical Ethics states: “The medical profession has long

subscribed to a body of ethical statements developed

primarily for the benefit of the patient.”3 One of the

defining characteristics of any profession is the ability

to self-regulate.4 In return, members of the profession

are committed to using their skills in a manner that

upholds the integrity of their profession. Therefore,

The Principles of Medical Ethics and their Preamble are part of

the AMA Code of Medical Ethics.

“[Physicians] are governed by codes of ethics and profess a

commitment to competence, integrity and morality, altruism, and the

promotion of the public good within their domain. These

commitments form the basis of a social contract between a profession

and society, which in return grants the profession a monopoly over

the use of its knowledge base, the right to considerable autonomy in

practice and the privilege of self-regulation.” Sylvia R. Cruess et al.,

“Profession”: A Working Definition for Medical Educators, 16 TEACH.

LEARN. MED. 74, 74-76 (2004).

unsurprisingly, medical ethics are as old as the practice

of medicine itself, passed to future generations through

medical training, and predating and prevailing

regardless of government-sponsored licensure. Ethics

codes in medicine have developed across “virtually all”

ancient civilizations, time periods, and independently

of one another,5 and resurged as reminders to the

profession of medicine’s core responsibility when

physician conduct falls below its contract to society.

In the 5th Century BCE, early practitioners of

medicine swore an oath to the gods of the day to ground

their practice in service to the best interest of their

patients. HIPPOCRATIC OATH, https://goo.gl/3k4CMc

(last visited Jul. 18, 2018) (“I will. . .benefit my patients

according to my greatest ability and judgement, and I

will do no harm or injustice to them”). The Hippocratic

Oath included this vow: “I will not give a lethal drug to

anyone if I am asked, nor will I advise such a plan.” Id.

Modern versions of the oath no longer make

promises to the gods of antiquity, but they keep to the

same principles of duty to humanity as a whole and to

the individual patient—not to a government edict or a

political doctrine. The oath serves as an important

reminder that physicians wield a potent skill, and they

must do so humanely and not as technicians: “I will

remember that there is art to medicine as well as

Although less famous than the Hippocratic oath, the medical

fraternities of ancient India, seventh-century China, and early

Hebrew society each had medical oaths or codes that medical

apprentices swore to on professional initiation. Thomas Tung &

Claude H. Organ, Jr., Ethics in Surgery: Historical Perspective, 135

JAMA 10, 10 (2000).

science, and that warmth, sympathy, and

understanding may outweigh the surgeon’s knife or the

chemist’s drug. . .that I do not treat a fever chart, a

cancerous growth, but a sick human being.” See Peter

Tyson, The Hippocratic Oath Today, NOVA (Mar. 27,

2001), available at https://goo.gl/V2X7Up.6

The AMA Code of Medical Ethics was the first

modern national medical ethics code in the world. See

TUNG & ORGAN, JR., supra note 5. It is today the most

comprehensive and well respected ethical code for

physicians anywhere.7 Ethical Opinion 9.7.3 Capital

Punishment,8 which sets forth the ethical position on

The modern version of the Hippocratic Oath was written in 1964

by Dr. Louis Lasagna while serving as Academic Dean of the School

of Medicine at Tufts University. Id. Dr. Lasagna’s oath is used by

approximately one-third of US and Canadian medical schools.

Melissa Bailey, So Long, Hippocrates. Medical Students Choose

Their Own Oaths, STAT (Sep. 21, 2016), https://goo.gl/YMF3Ls.

This Court and its individual justices have repeatedly relied on

and cited to the AMA Code of Medical Ethics as guidance. Lilly v.

Commissioner, 343 U.S. 90, 97 n.9 (1952); Roe v. Wade, 410 U.S.

113, 144 n.39 (1973); Bates v. State Bar of Ariz., 433 U.S. 350, 369

n.20 (1977); Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 288

& 308 (1990) (O’Connor, J., concurring & Brennan, J., dissenting);

Rust v. Sullivan, 500 U.S. 173, 214 (1991) (Blackmun, J.,

dissenting); Washington v. Glucksberg, 521 U.S. 702, 731 (1997);

Vacco v. Quill, 521 U.S. 793, 800 n.6 & 801 (1997); Ferguson v. City

of Charleston, 532 U.S. 67, 81 (2001); Baze v. Rees, 553 U.S. 35, 64

& 112 (2008) (Alito, J., concurring & Breyer, J., concurring); Nat’l

Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 592-93 (2012)

(Ginsburg, J., dissenting).

Ethical Opinions are determinations by the AMA Council on

Ethical and Judicial Affairs of the AMA’s positions on specific

ethical issues. They are a part of the AMA Code of Medical Ethics.

physicians’ participation in capital punishment,

includes the following proscription:

Debate over capital punishment has occurred for

centuries and remains a volatile social, political,

and legal issue. An individual’s opinion on

capital punishment is the personal moral

decision of the individual. However, as a

member of a profession dedicated to preserving

life when there is hope of doing so, a physician

must not participate in a legally authorized

execution.

The AMA is not alone in its position. Whenever any

medical body has addressed this question, the answer

has remained the same; it is unethical to use the skills

and training developed to care for the patient in order

to kill at the request of the state. Timothy F. Murphy,

Physicians, Medical Ethics, and Capital Punishment,

16 J. CLIN. ETHICS 160, 161 (2005) (“It does not appear

that any professional medical group that has

considered the matter has ever come to a different

conclusion.”).

Thus, the American College of Correctional

Physicians, which represents physicians who provide

health care services to incarcerated patients, states in

its Code of Ethics that “[t]he correctional health

professional shall . . . not be involved in any aspect of

execution of the death penalty.” ACCP CODE OF ETHICS,

https://goo.gl/DVjkD5 (last visited Jul. 18, 2018). The

American College of Physicians states in its Ethics

Manual that “[p]articipation by physicians in the

execution of prisoners except to certify death is

unethical.” AMERICAN COLLEGE OF PHYSICIANS: POLICY

COMPENDIUM, https://goo.gl/e7ckDx (last visited

Jul. 18, 2018). The American Public Health Association

has formally announced its policy position that “health

professional participation in executions or preexecution procedures is a serious violation of ethical

codes.” Am. Public Health Ass’n, Participation of

Health Professionals in Capital Punishment, Policy

Number 200125 (Jan. 2001). The American Society of

Anesthesiologists has taken the position that “[i]t is a

fundamental and unwavering principle that

anesthesiologists, consistent with their ethical

mandates, cannot use their art and skill to participate

in an execution.” Brief of amicus curiae American

Society of Anesthesiologists Supporting Neither Party

at 10-11, Baze v. Rees, 553 U.S. 35 (2008). The

American Psychiatric Association has stated in its

Principles of Medical Ethics that “[a] psychiatrist

should not be a participant in a legally authorized

execution.” Am. Psychiatric Ass’n Principles of Med.

Ethics § 1-4 (2013). At the international level, the

World Medical Association, an organization whose

members include approximately eighty national

medical associations, asserts that “it is unethical for

physicians to participate in capital punishment, in any

way, or during any step of the execution process.” 63rd

Gen. Assembly of the World Med. Ass’n, in WMA

Resolution to Reaffirm the WMA’s Prohibition of

Physician Participation in Capital Punishment (Oct.

2012).

In fact, this Court has itself acknowledged the

ethical prohibition on physician participation (and

participation by other health care professionals) in

capital punishment. Baze v. Rees, 553 U.S. 35 (2008)

(plurality), Baze, 553 U.S. at 63 (Alito, J., concurring),

and 553 U.S. at 107 (Breyer, J., concurring).

B. Physician Assistance in the Design of

Executions Would Undermine the

Physician-Patient Relationship.

Medical ethics are not mere relics of antiquity; they

form the foundation of medicine as a self-regulating

profession. Codified ethics serve as reminders of the

contract physicians have made to their patients and

the community they serve to use their training for the

good health of humanity. Most importantly, they

demonstrate to the public that physicians can be

trusted to provide the most intimate care, since the

basis of the treating relationship is patient trust in the

physician. AMA Code of Medical Ethics Opinion 1.1.1.

Patient-Physician Relationships (“[t]he relationship

between a patient and a physician is based on trust.”).

The physician has a duty to place the patient’s welfare

above other obligations, like the obligation to the state.

Id. And, physicians must consider how their decisions

reflect on the profession and upon other health care

professionals. Preamble to the Principles of Medical

Ethics. This relationship cannot be overstated. “Unless

there is complete confidence in the sympathetic

understanding of the physician as well as in his

professional skill, very little can be accomplished.”

Francis W. Peabody, The Care of the Patient, 88 JAMA

877, 882 (1927).

Patient trust must be nurtured. Physicians who

participate in executions at the expense of ethical rules

risk confusing their responsibility to the patient with

a responsibility to the state. If patients feel they cannot

trust the independent judgment of their physician, they

may avoid necessary medical care or withhold sensitive

information from the physician. Scheduling, attending,

and following up on medical care is already stressful

and time consuming for patients; the public does not

need another barrier in access to health care.

Even ancillary involvement in execution by

physicians risks jeopardizing public trust in the

profession. Dr. Atul Gawande recorded that when one

community learned that its local doctor participated in

executions, the physician found a note posted to his

clinic’s door reading, “the killer doctor.” Atul Gawande,

When Law and Ethics Collide: Why Physicians

Participate in Executions, 354 N. ENG. J. MED. 1222,

1225 (2006). He went on to state,

The public has granted us extraordinary and

exclusive dispensation to administer drugs to

people, even to the point of unconsciousness, to

put needles and tubes into their bodies, 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. Society has trusted us

with powerful abilities, and the more willing we

are to use these abilities against individual

people, the more we risk that trust. The public

may like executions, but no one likes

executioners.

Id. at 1227.

Moreover, this Court recently noted that

governments throughout history have attempted to

corrupt the physician-patient relationship to “increase

state power.” NIFLA v. Becerra, No. 16-1140, slip op. at

12-13 (U.S. Jun. 26, 2018) (“In Nazi Germany, the

Third Reich systematically violated the separation

between state ideology and medical discourse. German

physicians were taught that they owed a higher duty to

the ‘health of the Volk’ than to the health of individual

patients.”) (citation omitted). The end result was a

legal, physician-designed “killing program” credited as

the “crucial step that led to the atrocities of

Auschwitz.” Robert D. Troung & Troyan A. Brennan,

Sounding Board: Participation of Physicians in Capital

Punishment, 329 N. ENG. J. MED. 1346, 1348-49 (1993).

The AMA is acutely aware of this stain on the

medical profession. By refusing to participate in

capital punishment, even when sanctioned by a free

society, physicians are making a statement—even if

symbolically—that their role is not to serve the state as

experts in killing, but to minister to their patients as

healers.

Ethical physicians avoid any potential

blurring of these fundamentally incompatible

functions.

Thus, it is no coincidence that the Hippocratic Oath

included a prohibition on using medical skills to cause

death. Early physicians well foresaw the potential for

society to co-opt their training to perform in the best

interests of the state and not of the patient. To render

technical advice in executions would be to step down a

slippery slope. Somewhere near the bottom of that hill

would be a loss of patient trust and an undermining of

the patient-physician relationship.

C. Physician Participation in Executions

Would Falsely Suggest that Capital

Punishment can be Effectuated Humanely,

with the Endorsement of the Medical

Profession.

If the goal in performing executions were merely

getting the job done quickly, cheaply, and with minimal

pain, the problem of how to administer capital

punishment would be readily resolved. Long before Dr.

Guillotin advocated for his eponymous device, society

knew how to conduct swift and certain beheadings.9

The problem with beheadings, though, is that they are

gruesome. They force the public to confront the

enormity of the act.

What people much prefer is a way to accomplish the

deed while believing there is something humane about

it. Society wants to delude itself into a belief that

capital punishment no longer represents a weighted

moral choice, but is now somehow scientific—nearly

antiseptic. This delusion, however, cheapens life and

makes its extinction easier. The medical profession,

Dr. Joseph-Ignace Guillotin opposed the death penalty on

principle, but wanted all criminals executed as painlessly as

possible, and equitably, without exception for the aristocratic

classes. See Dora B. Weiner, The Real Doctor Guillotin, 220 JAMA

85 (1972). He advocated for the use of “a simple mechanism” to

replace burning alive, hanging, quartering, drowning and other

slow and agonizing methods. Id. Unfortunately for Dr. Guillotin:

“No one. . .could foresee in that winter of 1789 that the Revolution

would go beyond the creation of a constitutional monarchy, nor

that leaders of political factions would put their opponents to death

for deviating from the party line.”Id. at 89.

whose “essential quality” is an interest in humanity10

and which reveres human life, should have no part in

this charade.

In the United States, the prohibition on physician

participation in execution was not done simply to honor

the Hippocratic injunction, but more directly as the

result of this country’s century long march from

hanging toward the overt imitation of medical practice

in state sponsored execution protocols—always in

search of the most “humane” way to kill. The goal of socalled humanity in execution has infamously lured

several well-meaning physicians, even aside from Dr.

Guillotin, down the road to ethical peril. Physicians

have measured the length of rope in an effort to achieve

precision in hangings and avoid decapitation. See

Mahmoud Rayes et al., Hangman’s Fracture: A

Historical and Biomechanical Perspective, 14 J.

NEUROSURG. SPINE 198, 205 (2011). While it was a

dentist who designed the electric chair for execution, it

was physicians who advised on the “proper length of

time to apply electricity” while attending the first such

execution. Christopher J. Levy, Conflict of Duty:

Capital Punishment Regulations and AMA Medical

Ethics, 26 J. LEGAL MED. 261, 263 (2005). An army

medical corps officer invented the gas chamber in 1924

after the original plan of surprise gassing of prisoners

in their cells was deemed “impractical.” Meghan S.

Skelton, Lethal Injection in the Wake of Fierro v.

Gomez, 19 T. JEFFERSON L. REV. 1, 8 (1997).

PEABODY, supra, at 882.

Each time, the well-intentioned physician started

with the goal of reducing the barbarity of the previous

method, and each time history later deemed that

physician’s method to be outdated and unfit for a

humane society. See Joan M. LeGraw & Michael A.

Grodin, Health Professionals and Lethal Injection in

the United States, 24 HUMAN RIGHTS Q. 382, 396-97

(2002). If these attempts teach us nothing else, it is

that the physician has no place in designing death

when the purpose of the profession and the doctor’s

training is to preserve life.

Yet, states have attempted to “medicalize”

executions by “intentionally mimic[king] medical

procedure, thereby deceiving physicians who imagine

a medically necessary role, and the public which

imagines safe oversight.” Joel B. Zivot, Lethal Injection:

States Medicalize Execution, 49 U. RICH. L. REV. 711,

719 (2015).11 States have ordered condemned prisoners

to sign Do Not Resuscitate orders in anticipation of

execution, and mandated the presence of doctors

wearing white coats and stethoscopes to give an air of

“seriousness and safety.” Id. In order to sidestep this

ethical crisis, states have passed safe harbor laws to

shield physician participants who choose to violate

professional ethics from state licensure boards or have

determined that physicians who participate in

Dr. Zivot, who authored this law review article, is the same Dr.

Zivot who examined Mr. Bucklew and prognosticated on his

medical condition if he were to be executed under the present

Missouri protocol.

executions are not practicing medicine. Id.12 This Court

has itself recognized the progression from colonial

methods of killing to the modern trend of medicalized

death, supposedly in the pursuit of humanity. Baze,

553 U.S. at 41-44 (plurality); Glossip v. Gross, 135 S.

Ct. 2726, 2731-32 (2015).

A comparison between the plurality opinion in Baze

v. Rees, 553 U.S. 35 (2008), and the concurrence of

Justice Stevens in the same case may further

illuminate this issue. The plurality recounts the

history of methods of execution in the United States.

Id. at 41-44. It characterizes that history as a

persistent progression, guided by the latest scientific

insights, toward an ever more humane and dignified

method of extinguishing human life. Id. Eventually, the

plurality notes, the vast majority of states have settled

upon death by lethal injection, involving the use of

three drugs: sodium thiopental (to anesthetize),

pancuronium bromide (to paralyze), and potassium

chloride (to stop the heart, in case the first two drugs

failed to do the job). Id. at 44. It sums up this

progression as follows:

Our society has. . .steadily moved to more

humane methods of carrying out capital

For a list of confidentiality laws by state see State by State

Lethal Injection, DEATH PENALTY INFORMATION CENTER,

https://goo.gl/ZxhVS7 (last visited Jul. 18, 2018). See also N.

Carolina Dep’t of Correction v. N. Carolina Med. Bd., 675 S.E.2d

641, 651 (2009) (holding that North Carolina’s execution protocol

required physician involvement in execution, and that the state

medical board exceeded its statutory authority when it threatened

to enforce the ethical prohibition on physician participation in

capital punishment).

punishment. The firing squad, hanging, the

electric chair, and the gas chamber have each in

turn given way to more humane methods,

culminating in today’s consensus on lethal

injection. The broad framework of the Eighth

Amendment has accommodated this progress

toward more humane methods of execution, and

our approval of a particular method in the past

has not precluded legislatures from taking the

steps they deem appropriate, in light of new

developments, to ensure humane capital

punishment. There is no reason to suppose that

today’s decision will be any different.

553 U.S. at 62 (citation omitted).

In his concurrence, Justice Stevens saw the matter

a bit differently. He suggested that the injection of

pancuronium bromide might have the effect of

hastening the execution, but it also might have the

effect of allowing the prisoner to die in horrific agony.

Baze, 553 U.S. at 71-77 (Stevens, J., concurring). The

likelihood of either outcome cannot be known within

any reasonable medical certainty. What is known,

though, is that pancuronium bromide will prevent

muscular twitching by the prisoner (whether dead or

alive). The pancuronium bromide injection, then, will

certainly preserve the executioner’s own sense of

dignity and humanity in carrying out the execution

(and offer similar comfort to the society that has

ordered the execution), but it might well have the

opposite effect for the prisoner. As Dr. Zivot stated,

“the dead can never tell us if they experienced cruelty

in their death[;] the responsibility to guard against

cruelty is entirely in the hands of the observers.”

ZIVOT, supra, at 714.

Ultimately, the morality of capital punishment is a

matter of personal judgment, beyond the

pronouncements of the medical profession and of this

Court. What is not beyond the AMA or this Court,

though, is an objective, even-handed evaluation of the

process, with a frank confession of what is knowable

and what is not. As of November 2016, 31 states and

the federal government authorized legal executions.

See States With and Without the Death Penalty,

DEATH PENALTY INFORMATION CENTER,

https://goo.gl/ogXhC1 (last visited Jul. 18, 2018). With

due respect, the AMA wonders how that number might

change if the leaders of society, including the members

of the judiciary, were less enthusiastic about labeling

the changes to execution protocols as scientific

improvements and were more discerning in their use of

terms like “humane” and “dignified.”

II. Amicus Takes No Position on the Substantive

Issues, Including the Medical Questions that

Underlie this Case.

The certified questions ask how the Eighth

Amendment constrains the allowable method of

execution for Mr. Bucklew, on account of his “rare and

severe medical condition.” Due to the prohibitions in

the AMA Code of Medical Ethics, as discussed in this

brief, the AMA is unable to provide guidance on that

medical condition. Similarly, the AMA is unable to

support either party or recommend how the Eighth

Amendment should apply in this case.

CONCLUSION

Some, at least, of the certified questions in this case

concern whether Mr. Bucklew has been able to prove,

based on the idiosyncrasies of his own medical

condition, which is the most legally suitable procedure

for his own execution. In determining whether the

prisoner has met his burden, the Court may choose to

consider the consequences of the ethical prohibition

against physicians’ rendition of technical advice

regarding the alternative possibilities for an execution.

This brief, which is submitted on behalf of neither

party, is intended only to provide background on the

applicable ethical principles and to confirm, as noted

supra, that Dr. Zivot is correct—testimony used to

determine which method of execution would reduce

physical suffering would constitute physician

participation in capital punishment and would be

unethical.

Respectfully submitted,