# Amicus Curiae Brief — Bucklew v. Precythe, 139 S. Ct. 306 (2018) (No. 17-8151)

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0842%3A13

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2018

## Text

No. 17-8151
3n the Supreme Court of the United States

RUSSELL BUCKLEW,
Petitioner,

Vv.

ANNE L. PRECYTHE, DIRECTOR,
MISSOURI DEPARTMENT OF CORRECTIONS, et ai.,
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 ...........-202005: ii
URE GA GUE ccc ccccccesccccceson 1
SUMMARY OF ARGUMENT .................. 3
SE 660606. 6u6o00 6d ceeded ecdoucs as 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
ev aca ceGeuscdecctévesiss 4

A. Physicians Are Ethically Prohibited from
Participating in Execution by the Historic
and Prevailing Standards of the Medical
DE 6 ccdUend de bbw see baccauseeves 4

B. Physician Assistance in the Design of
Executions Would Undermine the Physician-
POE, nc oncbevessdsed0e6s 9

C. Physician Participation in Executions Would
Falsely Suggest that Capital Punishment can
be Effectuated Humanely, with the
Endorsement of the Medical Profession. ... 12

Il. Amicus Takes No Position on the Substantive
Issues, Including the Medical Questions that
ee ee ene a 17

PEE ‘evvaccnveanewadavasenaseceds 18

ii
TABLE OF AUTHORITIES

CASES

Bates v. State Bar of Ariz.,
Ls ccdcbeseuewscebetasee 6

Baze v. Rees,
ee PGES. ovcecccocvecesecs 6, 8, 15, 16

Cruzan v. Dir., Mo. Dep’t of Health,
I i a ose ekeesé 6

Ferguson v. City of Charleston,
EE ae oi Geos nee nese dices 6

Glossip v. Grogs,
os cle od gawd b vba’ s 15

Lilly v. Commissioner,
ES 6 eo inc cui ub i ¥< nekaeewes 6

Nat'l Fed’n of Indep. Bus. v. Sebelius,
Se EET vicvebvbeccrececseceove 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.

SRAGNRUED .. |... ss. vens conse 15
Roe v. Wade,

a Eh 6
Rust v. Sullivan,

i a eee alae 6
Vacco v. Quill,

es EE cbx cob concscusncesvsenns 6

iil

Washington v. Glucksberg,

Se ET oc) ces wedcecedcececesess 6
CONSTITUTIONAL PROVISIONS
I OED once csebvsrosdvccenee 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

PU GE, CIEE ccc cwccccccccecccess 8
ACCP CopbE OF ETHICS, https://goo.gl/DVjkD5
Ss CB, END oc we cic cccccescces 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.gV/qKXwA6 ........... 9

Opinion 9.7.3—Capital Punishment,

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

Preamble and Principles of Medical Ethics,

available at https://goo.gi/rcEZ9u .......... 4,9
Am. Psychiatric Ass’n Principles of Med. Ethics

cvadh eh dee tat REReEOMS Car dtee¥epea 8

Am. Public Health Ass’n, Participation of Health
Professionals in Capital Punishment, Policy
Number 200125 (Jan. 2001) ................ 8

iv

Atul Gawande, When Law and Ethics Collide: Why
Physicians Participate in Executions, 354 N.
ENG. J. MED. 1222 (2006) ............5004-- 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

GSE 9 cc vvccdinncescéshanaies 12
Francis W. Peabody, The Care of the Patient, 88

SD Se CUED 6b 6 been bes coneeekbewha 9,13
HIPPOCRATIC OATH, https://goo.g/3k4C Mc

(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
GENE és deveciévsseeedccsceeensue 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

CEST) ccvcccccnccosnecessbeearecsesaves 13

Vv

Melissa Bailey, So Long, Hippocrates. Medical
Students Choose Their Own Oaths, STAT
(Sep. 21, 2016), https://goo.g/YMF3Ls ........

Peter Tyson, The Hippocratic Oath Today, NOVA
(Mar. 27, 2001), available at

ne vccncceéeeasetscececs

Robert D. Troung & Troyan A. Brennan, Sounding
Board: Participation of Physicians in
Capital Punishment, 329 N. ENG. J. MED. 1346
Dt cis wah We w6s ob b0s 60 beeesectecess

State by State Lethal Injection, DEATH PENALTY
INFORMATION CENTER, https://goo.gl/ZxhVS7
(last visited Jul. 18, 2018) .................

States With and Without the Death Penalty, DEATH
PENALTY INFORMATION CENTER,
https://goo.gl/ogXhC 1 (last visited Jul. 18, 2018)

Sylvia R. Cruess et al., “Profession”: A Working
Definition for Medical Educators, 16 TEACH.
ee ed be ceed pebeceseeces

Thomas Tung & Claude H. Organ, Jr., Ethics in
Surgery: Historical Perspective, 135 JAMA 10

11

15

17

DE GGGnewenccceeceescecsecccescocss 5, 6

Timothy F. Murphy, Physicians, Medical Ethics,
and Capital Punishment, 16 J.CLIN. ETHICS 160
Die weed baeaeeeesdseoceretenees

1

INTEREST OF AMICUS'

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 counse!
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.

2

Opposition to Application for Stay of Execution at 28-
36. 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-mzndated 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
rationales behind its position. Furthermore, as the
publisher of the AMA Code of Medical Ethics,’ 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_ ama-

3

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
pumshment 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.

4

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.” One of the
defining characteristics of any profession is the ability
to self-regulate.* 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

* “(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.” Syivia R. Cruess et al.,
“Profession”: A Working Definition for Medical Educators, 16 TEACH.
LEARN. MED. 74, 74-76 (2004).

5

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,’ 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.” Jd.

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 medica!
apprentices swore to on professional initiation. Thomas Tung &
Claude H. Organ, Jr., Ethics in Surgery: Historical Perspective, 135
JAMA 10, 10 (2000).

6

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.*®

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.’ Ethical Opinion 9.7.3 Capital
Punishment,* 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. Jd. 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.gi//YMF3Lz.

' 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.

7

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 “[plarticipation by physicians in the
execution of prisoners except to certify death is
unethical.” AMERICAN COLLEGE OF PHYSICIANS: POLICY
COMPENDIUM, https://goo.gi/e7ckDx (last visited

8

Jul. 18, 2018). The American Public Health Association
has formally announced its policy position that “health
professional participation in executions or pre-
execution 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 “[ijt 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 “la] 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).

9

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-regu ating
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,

10

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 tr sted us
with powerful abilities, and the more wiiling we
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

1]

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.

12

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.’
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. Jd. 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.”/d. at 89.

i3

whose “essential quality” is an interest in humanity’®
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 so-
called 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.

14

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
retin sare. Nomeomere-s {very Zivot, Lethal Injection:
States Medicalize Execution, 49 U. Ricn. L. REv. 711,
719 (2015)."’ 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.” Jd. 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

15

executions are not practicing medicine. /d.'* 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. Jd. 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). Jd. 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.gV/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 protoco!
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).

16

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

today’s decision will be any different.
553 U.S. at 62 (citation omitted).

In his concurrence, Justice Stevens saw tie 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 US. at 71-77 (Stevens, J., concurring). The
likelihood of either outcome cannot be known within

(and offer simjlar comfort to the society that has
ordered the execution), but it might well have the
opposite effeet 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

17

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/ogXhC 1 (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.”

IL. 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.

18

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
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,

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

Date: July 23, 2018

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0842%3A13. Public record. Not legal advice.