Dr. Death? Professionalism,Virtue, and U.S. Physician Participation in the Death Penalty

In the United States at present, the death penalty is a possible sentence in 31 out of 50 states, as well as within the military and for federal cases. In the U.S., numbers of executions are declining, in part due to moratoriums in place and challenges to execution by lethal injection. Participation by physicians in lethal injection executions has been steadfastly viewed by professional medical organizations as contrary to their ethical standards. However, physicians have participated in lethal injection executions, and the morality of the death penalty itself is a matter of intense social and political debate. Medical ethics commentators and professional organizations have typically held that the prohibition on physician participation in the death penalty is independent of the ethical status of the death penalty itself. This article argues that this view is untenable, and that it is tied to a view of professional role virtue that is similarly untenable. At the same time, it argues that, given the morally uncertain status of the death penalty, it is plausible that virtuous physicians may either refuse or choose to participate in some aspects of the death penalty.     

The lethal injection quandary: how medicine has dismantled the death penalty

On February 20, 2006, Michael Morales was hours away from execution in California when two anesthesiologists declined to participate in his lethal injection procedure, thereby halting all state executions. The events brought to the surface the long-running schism between law and medicine, raising the question of whether any beneficial connection between the professions ever existed in the execution context. History shows it seldom did. Decades of botched executions prove it. This Article examines how states ended up with such constitutionally vulnerable lethal injection procedures, suggesting that physician participation in executions, though looked upon with disdain, is more prevalent--and perhaps more necessary--than many would like to believe. The Article also reports the results of this author's unique nationwide study of lethal injection protocols and medical participation. The study demonstrates that states have continued to produce grossly inadequate protocols that severely restrict sufficient understanding of how executions are performed and heighten the likelihood of unconstitutionality. The analysis emphasizes in particular the utter lack of medical or scientific testing of lethal injection despite the early and continuous involvement of doctors but ongoing detachment of medical societies. Lastly, the Article discusses the legal developments that led up to the current rush of lethal injection lawsuits as well as the strong and rapid reverberations that followed, particularly with respect to medical involvement. This Article concludes with two recommendations. First, much like what occurred in this country when the first state switched to electrocution, there should be a nationwide study of proper lethal injection protocols. An independent commission consisting of a diverse group of qualified individuals, including medical personnel, should conduct a thorough assessment of lethal injection, especially the extent of physician participation. Second, this Article recommends that states take their execution procedures out of hiding. Such visibility would increase public scrutiny, thereby enhancing the likelihood of constitutional executions. By clarifying the standards used for determining what is constitutional in Baze v. Rees, the U.S. Supreme Court can then provide the kind of Eighth Amendment guidance states need to conduct humane lethal injections.     

THE SHORT‐TERM EFFECTS OF EXECUTIONS ON HOMICIDES: DETERRENCE,DISPLACEMENT, OR BOTH?*

Does the death penalty save lives? In recent years, a new round of research has been using annual time‐series panel data from the 50 U.S. states for 25 or so years from the 1970s to the late 1990s that claims to find many lives saved through reductions in subsequent homicide rates after executions. This research, in turn, has produced a round of critiques, which concludes that these findings are not robust enough to model even small changes in specifications that yield dramatically different results. A principal reason for this sensitivity of the findings is that few state‐years exist (about 1 percent of all state‐years) in which six or more executions have occurred. To provide a different perspective, we focus on Texas, a state that has used the death penalty with sufficient frequency to make possible relatively stable estimates of the homicide response to executions. In addition, we narrow the observation intervals for recording executions and homicides from the annual calendar year to monthly intervals. Based on time‐series analyses and independent‐validation tests, our best‐fitting model shows that, from January 1994 through December 2005, evidence exists of modest, short‐term reductions in homicides in Texas in the first and fourth months that follow an execution—about 2.5 fewer homicides total. Another model suggests, however, that in addition to homicide reductions, some displacement of homicides may be possible from one month to another in the months after an execution, which reduces the total reduction in homicides after an execution to about .5 during a 12‐month period. Implications for additional research and the need for future analysis and replication are discussed.     

A deterrence study of the death penalty in Illinois, 1933–1980

The study analyzes the effect of executions and the death penalty on homicides in Illinois. A forty-eight year time series (1933–1980 inclusive) is used as the basis for this analysis. The first series of results are presented in a graph of executions and homicides by year. A second portion of the analysis compares the mean homicide rates for three time periods—years with executions, years when the death penalty was allowed but no executions were performed, and years in which the death penalty was abolished by the U.S. Supreme Court. No notable differences in homicide rates were observed for these three eras. Finally, a regression analysis was performed which included a lag structure and several relevant controls. The deterrence measure (executions) made no contribution to the variation in homicide rates. Thus, the authors conclude that there is no deterrent effect for the death penalty on homicides in Illinois.     

当代美国的死刑制度

美国最高法院在1972年曾经宣布暂停死刑执行,但是在1976年又恢复了死刑的执行,目前美国是唯一仍然保留并适用死刑的所谓西方文明国家。美国联邦系统和38个州的刑法都规定了死刑,可以适用死刑的罪行还比较多,但是罪名相对比较集中;死刑诉讼程序严格且复杂;相对于美国庞大的犯罪数字,尤其是暴力犯罪而言,其死刑判决和实际执行死刑数量仍属较低;美国死刑执行方式呈现为以注射方式为主多种执行方法并存的特点。美国死刑程序复杂但是死刑错判率仍然较高。     

Capital punishment politics and policies in the States, 1977–1997

Since the U.S. Supreme Court ruled the death penalty constitutionalin 1976, thirty-eight states have readopted new capital punishmentstatutes consistent with Supreme Court decisions on procedural guidelines. While much of the literature about capital punishmentaddresses the legal aspects of the issue, this essay examines thepolitics of the major institutions of state government in the formulation of capital punishment policies. In some states, thereis agreement between key officials in the institutions on the desirability of, or opposition to, capital punishment. However, inmost other states, the debate over the appropriateness of deathpenalty policies is vigorously waged between the executive, legislative and judicial branches. Overall, 432 felons were executedin 30 states between 1977 and 1997. However, no executions haveoccurred in nine of these states. Twelve states have no provisionsfor the death penalty. The majority of executions since 1977 havetaken place in just six states. In addition to the abolitioniststates, the others can be categorized as (1) aggressive executioners,(2) occasional executioners, (3) reluctant executioners, and (4)nonusers where the death penalty has been restored for politicalpurposes but no executions have been carried out in over two decadesand none are likely to be in the immediate future given the minisculenumber of inmates on death row.     

CONGRESS AND CAPITAL PUNISHMENT: An Exercise in Symbolic Politics

Even when federal authorities were legally empowered to impose a death sentence, the sanction was rarely carried out. Between 1930 and 1976, there were only 33 such executions. During the past decade, bills, both imposing and abolishing capital punishment, have been introduced repeatedly in the U.S. Congress. Furthermore, certain members of Congress have demonstrated intense interest in such efforts. The continued debate and interest is better explained by the symbolic rather than tangible components of such legislation. This article examines four aspects of the symbolic component of federal death penalty legislation: reassurance function, moral-educative function, model for the states, and the deterrence debate.     

Executions and Apologies: The U.S., International Law and Right to Consular Notification

Following the execution of two German nationals in the United States in 2001, the International Court of Justice (ICJ) found the U.S. in violation of international law stating that foreign nationals must be notified of their right to contact their embassy. When they learned of this right ten years after their arrest, they were barred from raising the claim; and after exhausting available avenues in American courts, the German consulate took the case to the International Court of Justice. The U.S. executed the two men while the case was still before the ICJ, in spite of its request to stay the execution and German objections that “violations of Article 36 followed by death sentences and executions cannot be remedied by apologies or the distribution of leaflets”. This paper discusses the importance of consular notification to the fairness of prosecutions. Cases reviewed indicate the U.S. still frequently does not provide notification and is at times oblivious to the ICJ's ruling. The paper discusses reasons the U.S. should honor notification, including reciprocity for Americans traveling abroad and the larger development of international law. A final section provides several mechanisms for bringing U.S. practices into compliance that could be easily implemented. This revised version was published online in July 2006 with corrections to the Cover Date.     

Death penalty views in China, Japan and the U.S.: An empirical comparison

Many nations impose the death penalty, yet most of the literature on capital punishment has focused on Western nations, particularly the U.S. China and Japan are two retentionist nations. Based on the data collected in 2005, this study examined the level of death penalty support and views on capital punishment among college students from China, Japan, and the U.S. It was found that Chinese respondents reported the highest level of death penalty support, followed by Japanese and U.S. students. Respondents from China and Japan were more likely to believe in the deterrence value of capital punishment than their U.S. counterparts. Views on retribution differed among the respondents. U.S. students were most likely to feel that innocent people are sentenced to death. In multivariate analyses, deterrence was the strongest correlate of death penalty views among Chinese and Japanese respondents, followed closely by retribution. For both Chinese and Japanese students, the barbarity of government taking the life of a person was the strongest predictor for opposing the death penalty. For U.S. respondents, retribution was the strongest reason for supporting capital punishment and the barbarity of executions was the strongest reason for opposing the death penalty.     

A new test for evaluating Eighth Amendment challenges to lethal injections

An explosion of Eighth Amendment challenges to lethal injection protocols has struck the federal courts. The Supreme Court's recent decision in Hill v. McDonough,1 which empowered prisoners to bring challenges to lethal injection procedures under 42 U.S.C. para. 1983, has facilitated a flood of new lethal injection cases. In response, several courts have ordered states to alter their protocols, spurring other capital inmates to litigate such challenges. Distressingly, the courts evaluating these claims have almost no law to guide them. The last Supreme Court decision applying the Eighth Amendment to a method of execution was written in 1947; that case, Louisiana ex rel. Francis v. Resweber,2 occurred before the Eighth Amendment was applied to the states and resulted in a 4-1-4 split. Although lower courts have heard numerous challenges to execution methods, few have analyzed the constitutional validity of a method of execution in detail. Making matters worse, courts that find Eighth Amendment violations must craft equitable remedies that often amount to entirely new execution protocols. No clear precedent exists to guide courts in formulating such remedies. This Note proposes a legal standard for the administration of Eighth Amendment method-of-execution claims, focusing on lethal injection cases. Part I describes lethal injection procedures and summarizes recent litigation. Part II discusses the difficulty of evaluating lethal injection claims, analyzing both general difficulties in interpreting the Eighth Amendment and specific difficulties associated with lethal injection cases. Part III proposes a standard for addressing method-of-execution claims that attempts to balance a prisoner's interest in a painless execution with a state's interest in conducting executions efficiently. Part IV discusses remedies for unconstitutional procedures. Part V concludes.     

FELONY MURDER AND CAPITAL PUNISHMENT: AN EXAMINATION OF THE DETERRENCE QUESTION

A proper test of the deterrent effect of the death penalty must consider capital homicides. However, the criterion variable in most investigations has been total homicides—most of which bear no legal or theoretical relationship to capital punishment. To address this fundamental data problem, this investigation used Federal Bureau of Investigation data for 1976–1987 to examine the relationship between capital punishment and felony murder, the most common type of capital homicide. We conducted time series analyses of monthly felony murder rates, the frequency of executions, and the amount and type of television coverage of executions over the period. The analyses revealed occasional departures (for vehicle theft and narcotics killings) from the null hypotheses. However, on balance, and in line with the vast majority of capital punishment studies, this investigation found no consistent evidence that executions and the television coverage they receive are associated significantly with rates for total, index, or different types of felony murder.     

The death penalty for juveniles: Bridging the gap between an evolving standard of decency and legislative policy

In Stanford v. Kentucky (1989), the U.S. Supreme Court held that the practice of executing juveniles who were age 16 or 17 at the time of their crime(s) did not violate the “evolving standards of decency” (ESD) of American society. This ESD determination was based on legislative authorization of this punishment. Although this interpretation of what constitutes an ESD has been controlling in death penalty cases since Gregg v. Georgia (1976), the high court's original conception of an ESD stressed the importance of other factors in its determination (e.g., historical review and empirical knowledge about executions). Because the ESD is a Court-created measure, legislatures are under no constitutional obligation to acknowledge the scope of concerns embodied in the historical genesis of this concept. Nevertheless, in this paper we oppose a juvenile death penalty and argue that legislatures should consider the importance of historical and research utilization components of the ESD concept when debating the validity of a policy regarding the death penalty for juveniles.     

Execution publicity and homicide in Georgia

A requisite of both general deterrence and brutalization theories of capital punishment is citizen awareness of executions. Yet this dimension is frequently left unmeasured in the literature on executions and homicide. Further, the current literature utilizes nationwide data, which introduces aggregation bias. The present study deals with these issues, testing the brutalization theory with data on publicized executions in the state of Georgia. Monthly data are used in order to capture any short-term brutalization effect. The results of a multivariate time-series model find that a publicized execution is associated with an increase of 2.6 homicides, or 6.8%, in the month of the publicized execution. Publicized executions were associated with an increase of 55 homicides during the time period analyzed. The results provide no support for the deterrence, victim mobilization, and normative validation perspectives on homicide. The findings can be interpreted, however, from several different varieties of brutalization theory.     

Time-related changes in cardiac ct images of rabbits died from four kinds of execution

Objective To explore the feasibility and appropriate parameters for estimating postmortem interval (PMI) through time-related CT imaging into dynamically monitoring the cardiac changes of rabbits died from four kinds of execution. Methods The experimental rabbits were executed with four disposals of air embolism, strangulation, drowning and hemorrhagic shock. The dead rabbits were observed of their hearts with CT scanning every 6 hours within 120h from the death moment, having the obtained time-different CT images and mean CT values examined. With the cardiac average CT values of rabbits died from discrepant execution, four relevant regression equations were established against the elapsing time (i.e. PMI). Results The CT images of post-death cardiac tissue of rabbits died from one of four executions did change regularly with the PMI elongating, showing consistent with the autopsy verification. The binomial regressive equations were established between the post-death cardiac average CT value and PMI from four executions, demonstrating statistically significant (P<0.05). Conclusion The postmortem cardiac CT imaging into PMI analysis, plus the relating regression equation, provides a new objective visual quantitative approach and reference for forensic medicine to infer the time of death. © 2021, Editorial Office of Forensic Science and Technology. All rights reserved.     

Rethinking Community Organization and Robbery: Considering Illicit Market Dynamics

In this investigation we examine the relationship between the certainty of execution and murder in the District of Columbia, 1890–1970. By examining a small political/geographic unit like the District, we avoid the aggregation problems of previous time-series analyses at the national level, and time-series and cross-sectional investigations of states as the unit of analysis. At odds with the deterrence argument, we find no evidence of a substantial and/or statistically significant inverse relationship between the certainty of execution and murder rates when multiple execution and murder rate variables are considered, when various time lags are examined, and when five time periods are examined between 1890 and 1970. In contrast, there is some suggestion that the immediate effect of executions may be to increase, not decrease, murders. This possible effect is extremely slight and short-term, however, with murder and executions being largely independent factors in the District.     

First Report of Blaesoxipha plinthopyga (Diptera: Sarcophagidae) from a Human Corpse in the U.S.A. and a New State Geographic Record Based on Specimen Genotype

Carrion flies in the taxonomic family Sarcophagidae are often recovered from a human corpse. However, because such specimens are difficult to identify, the forensic literature on this taxon is quite limited compared with that of the commonly employed Calliphoridae. Faced with a sarcophagid larva that could not be identified microscopically from a death investigation in the state of Idaho, we generated cytochrome oxidase one DNA sequence data from the specimen. Comparison to a reference data set of forensically significant sarcophagids from Canada and the U.S.A. confirmed that this was the first discovery of Blaesoxipha plinthopyga in a human corpse in the U.S.A. and the first record of this species in Idaho. Because B. plinthopyga occurs from the Northern U.S.A. to the Neotropics, it is potentially useful for estimating time since death at many locations.     

Mitigation Evidence and the Ethical Role of a Defense Attorney in a Capital Case

In 1972, the U.S. Supreme Court decided Furman v. Georgia. This landmark case changed the death penalty in the United States. In Gregg v. Georgia (1976), the Supreme Court made it clear that mitigating factors were to be heard before sentencing to ensure individualized sentencing. Every defendant has a story, a family, a childhood, trauma, and celebration—a reason their life should be spared from execution. In a capital case, a defense attorney’s ethical role is to craft that story and articulate it in a way that enables the jury to have a complete picture of the defendant’s background and character as they decide his punishment. Mitigating factors are not an excuse for the defendant’s behavior, but rather an insight into who the defendant is and what has shaped his life. A defense attorney’s ethical duty in a capital case is to argue the case on all legal points and to present a thorough investigation of mitigating evidence. A thorough investigation of all such evidence is required by case law and explained by the standards set forth by the ABA guidelines.     

Last Words, Last Meals, and Last Stands: Agency and Individuality in the Modern Execution Process

Despite the historical transformation of executions in the United States into cloistered, bureaucratic affairs, two past practices have persisted in modern executions: the opportunities for the condemned to request a special last meal and to make a speech to those assembled to witness the execution. The retention of these practices and the communication of their contents by the state and the media to the public reinforce a conception of those executed as autonomous actors, endowed with agency and individuality. Through these practices, the state and the media reflect and strengthen the oxymoronic construction of offenders in contemporary discourses as self-made monsters who are intrinsically different by choice. Presenting offenders in this way may ultimately maintain the emotional satisfaction needed to sustain the death penalty. Arguments are supported by published last meal requests and final statements in the state of Texas.