HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Sunday, January 16, 2005

Ethics Complaint Sides with Kentucky Governor on Death Penalty

Kydeathrow The AMA prohibits physicians from direct participation in administering the death penalty.  (See Ethics Op. E-2.06.)  So, when Kentucky governor Ernie Fletcher, M.D., signed the death warrant on inmate Thomas Clyde Bowling, did he violate this tenet of medical ethics?  Four Kentucky inmates petitioned the state's Board of Medical Licensure for an answer to that question.  The Jan. 13 Louisville Courier-Journal reports that the medical board

decided that Gov. Ernie Fletcher did not violate medical ethics by ordering the execution of a death row inmate.

With no public discussion, a state Medical Licensure Board committee unanimously agreed that Fletcher, a physician, did not violate guidelines that bar doctors from participating in executions.

The committee, which examined the issue at the request of four death-penalty opponents, said Fletcher was acting as governor, not as a doctor, when he signed a Nov. 8 death warrant for Thomas Clyde Bowling.

Although it is probably politically predictable, the board's decision takes a curiously legalistic slant on this ethical problem.

But medical ethics experts questioned whether a doctor who becomes a governor can separate his two roles.

"I would hold the view that as long as he continues to call himself a physician, he's bound to the ethics of that position," said Dr. Clarence Braddock, a professor of medicine at Stanford University.

Paul Lombardo, a law and medical ethics professor at the University of Virginia, said drafters of the AMA guidelines probably meant to ban physicians from activities such as administering drugs during an execution by injection.

"I don't believe the medical association rules generated to stand in the way of physician participation in an execution really contemplated this situation," he said.

That may be, but the text of the AMA's prohibition on physician participation is quite broad:

Physician participation in execution is defined generally as actions which would fall into one or more of the following categories: (1) an action which would directly cause the death of the condemned; (2) an action which would assist, supervise, or contribute to the ability of another individual to directly cause the death of the condemned; (3) an action which could automatically cause an execution to be carried out on a condemned prisoner.

It isn't much of a stretch to equate the governor's signing of a death warrant with (3), would it?  [tm]

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