capital punishment and physician involvement in capital punishment

The issues of capital punishment and physician involvement in capital punishment have long raised much ethical debate. This essay reviews the arguments in the context of utilitarian  and deontological ethical theories and the medical ethical principles of non-maleficence, beneficence and autonomy.

Utilitarianism is the ethical theory which asserts that no action is intrinsically wrong, but that the right action to be taken in any given instance is that action with the best consequences for the majority of individuals. Act utilitarianism proposes that an act may be ethically justifiable if it has at least as good a consequence as any other course of action available, while rule utilitarianism suggests that all individuals should act in accordance with general rules which, if followed by everyone, would produce the greatest good. 

Presumably, the state could assert that the benefit of capital punishment is solely to prevent criminals from further harming the public. Act utilitarians would refute this claim, as the benefit could be achieved less controversially by providing life imprisonment without parole. Rule utilitarians would also dispute the ethical reasoning behind this idea, as it would break a common rule, do not kill. If no-one were to murder anybody else, this would provide the greatest benefit to the greatest number of people. In the rare case of execution, the murder of an individual, which would break the rule, would not provide a strong enough reason to change the rule for all cases. Thus, on the grounds that the execution of a criminal would prevent this criminal from further harming the public, both the act and  rule utilitarian would have to oppose capital punishment on ethical grounds.

Act and rule utilitarians would be faced with the same arguments if the state were to assert that the execution of it’s prisoners was ethically justified as it acted as a deterrent to crime. It cannot be disputed that an effective deterrent to crime would result in the best consequences for all members of the state. However, there is currently no evidence that capital punishment in itself deters other potential criminals (1), thereby eliminating the basis for act utilitarian ethical justification, as the action does not result in the best consequences for the majority of individuals.

Rule utilitarians would again have to consider the rule, do not kill. While the benefit to society would theoretically be great if an effective deterrent were found, the evidence does not support this. Regardless, if capital punishment were found to be an effective deterrent in the future, the benefit in itself does not provide a compelling enough argument to completely disregard the rule. Therefore, regardless of the benefits that may be suggested by the state, both act and rule utilitarianism, from current evidence, would reject any ethical justification for capital punishment.

The ethical theory of deontology maintains that an individual will be acting in an ethical manner if they adhere to the rules and obligations placed upon them by their societal role or by their profession. Rights-based deontology argues that an individual who is competent and autonomous has an inherent right not to have that autonomy infringed. Duty-based deontology would argue the inherent wrong in defying certain rules and obligations imposed either by the society or the profession of the individual.

In the case of capital punishment, a rights based deontologist would acknowledge the infringement of autonomy perpetrated by the criminal in question, but would not be able to ethically justify a similar transgression by the state in the name of punishment. The emphasis here is on the autonomy that another individual intrinsically holds, which, in no circumstance, can be breached by others. The duty based deontologists would hold utmost their obligation to society to refrain from involving themselves in any manner with the death of another human being. The basic rule or obligation not to kill another would remain paramount. Hence, for both rights-based and duty-based deontology, the basic nature of the death penalty, that of killing an individual, can not be reconciled and would be ethically opposed.

The issue of the ethical basis of capital punishment is further complicated when one attempts to justify the involvement of physicians in the practice. To examine the ethics of physician involvement, the framework by which the actions of medical professionals are judged must be considered. The four ethical principles which are regarded central to the practice of  medicine, outlined by Beauchamp and Childress (2), are that of non-maleficence, beneficence, autonomy and justice. These principles represent a compromise between the major ethical theories of utilitarianism and deontology. In this discussion, the former three principles will be addressed; the latter will not be dealt with, merely for the benefit of brevity.  It will be shown that each of these principles oppose physician involvement in capital punishment.

A major argument that is raised against physician participation in capital punishment is the Hippocratic dictum primum non nocere - first do no harm. The utilitarian would only support non-maleficence if this would result in the best outcome for the greatest number of people. It is submitted that the act utilitarian would adhere to this principle for two reasons. Firstly, a doctor who does no harm to their patients provides a good outcome for the patients. However, a lack of physical harm does not equate with overall good, so an act utilitarian may not consider this a reasonable enough explanation to accept the first do no harm dictum. If the act utilitarian were to consider the outcome if the principle of non-maleficence were broken, a different picture emerges. Where the physician does harm to their patients, it is not only physical; the trust in the physician and the profession is also damaged. This disadvantages the greatest number of people. For this reason, the act utilitarian would support the concept of first do no harm. The rule utilitarian would support the existence of a rule in accordance with non-maleficence and take this at  face value. Under both systems of utilitarianism, the principle of non-maleficence is justified.

Both rights and duty based theories of deontology support the medical ethical principle of non-maleficence. A rights-based deontologist would argue that if the physician were to break the Hippocratic dictum and proceed to harm his patient, he would infringe upon the patients autonomy and thus behave in an ethically unacceptable manner. A duty-based theorist would suggest that the professional obligation of the physician to do no harm, constitutes an duty strong enough that, if violated, amounts to unethical behavior. The duty here is held paramount. Thus, both interpretations of deontological theory lend credibility to the medical principle of non-maleficence.

While the binding nature of the principle of non-maleficence is assumed, it is contended that this is not equal to a ban on physician participation in executions. Some argue "that an execution itself may not be a harm, that participation by a doctor does not cause harm to the condemned but is in his interests and that the doctor may owe a duty to society, that is morally more important than the principle of ‘do no harm’ (3, page 135).

Some may consider that death is not always harmful. Execution by its nature as a punishment must constitute harm. In contrast, cases where a patient is afflicted with immense suffering as the result of a terminal disease, a doctor who aids in their death is seen to ultimately be preventing harm by allowing a dignified death. In such cases, death is the least harmful of all possible consequences. Any assistance given by a physician is merely as an adherence to the principle of patient autonomy. Physicians cannot use the same reasoning with respect to an execution, as death is clearly not a lesser harm. If we reason that the execution should not be seen as a murder, but as a punishment, and thus not constituting harm, we encounter a simple problem of definition; punishment by it’s nature is "the loss or suffering inflicted in the name of discipline (4, page 871)". Unlike the suffering of a terminally ill patient an execution, where there is no previous significant harm or suffering of the condemned, death can only result in the greatest harm. Therefore, the execution of a criminal can be regarded as harmful to that individual and physician participation in such an act is prohibited by the medical ethical principle - first do no harm.  

Beneficence is the ethical principle which asserts that one should seek to benefit others by preventing harm and promoting good (5, page 283). In the case of beneficence, the act utilitarian cannot argue that the absence of harm does not necessarily constitute the greatest good; the basis of beneficence is not only to prevent harm but also to promote good. If all physicians, were acting in accordance with this principle, it is obvious that the greatest good would eventuate for everyone, thus the principle must be supported. Again, the rule-based utilitarian could not deny that a rule, where harm is prevented and good is promoted, if followed by all physicians, would lead to the greatest good for the greatest number of individuals, fulfilling their criteria for ethical justification. Hence, both act and rule utilitarians would support the principle of beneficence.

The two understandings of deontological theory allow ethical justification of the principle of beneficence. The rights-based deontologist states that an individual has an intrinsic right to be prevented from any harm which would encroach on their autonomy, and at the same time is entitled to benefits which promote their autonomy, thus supporting the principle of beneficence. The duty-based deontologist would regard the societal role of the physician as ‘healer’ as an ethical obligation unto itself. The physician is bound not only by their professional ethics but by their duty to society to promote good. Thus, beneficence as a medical ethical principle is justified by the theory of deontology.

In the context of capital punishment, some suggest that physician participation benefits the condemned. These individuals argue that "physicians have a responsibility to ensure the patient receives proper care and a quick and merciful death. [They maintain] that if a life must be taken, it should be done in the most humane way possible" (6, page 18). Therefore, physician participation is seen as a compassionate act. In support of their arguments, many articles (3,7) cite examples where, due to a lack of medical expertise, the first attempt is aborted, necessitating painful ‘ second attempts’ to ensure that the execution is successful. This pain, say advocates, is not in the best interests of the patient and can be prevented by physician involvement. Sikora and Fleischmann (8) suggest that because physicians possess the technical skills to provide a less painful death, it cannot then automatically be assumed an ethical pursuit. It is submitted that these skills could be acquired by individuals who are not physicians, thus eliminating the basis of  ethical debate. In any case, the infliction of direct harm or mutilation of healthy persons without medical benefit, regardless of intent and societal goals, is not part of the ethical practice of medicine and should not be condoned by the medical practitioner (9).

The ethical dilemma of physician involvement in capital punishment is further complicated by the situation where the condemned individual requests such participation. This introduces the principle of autonomy, which states that a physician should respect the decisions of individuals, given that these decisions do not infringe on the autonomy of others. Ridley (5) asserts that the two forms of utilitarianism clearly require that autonomy be respected. The basis of utilitarian theory rests with the consequences of certain actions, whether this is determined on a case-by-case basis or by following certain rules. In either case, an action whose consequence results in the greatest good for the greatest number of people is considered ethically justifiable. To achieve this, the individual performing the action must have some idea of what will be considered the best consequences. No-one is more qualified to decide what an individual will consider the best consequences than the individual themselves. This being the case, any utilitarian theory must accept the principle of autonomy.

Deontology supports the ethical principle of autonomy in both interpretations of it’s theory. Rights-based theory supports the principle as it constitutes the basis of the theory. In the medical setting, the rights-based theorist would suggest that the doctor must support any decision the patient makes, providing that the decision does not prevent the doctor from acting autonomously. The patient cannot call on their right to autonomy to force the doctor to participate in something to which they are opposed. The duty-based deontologist gives ethical justification to the societal obligation to allow an individual to decide the outcome of their own lives. Therefore, deontological theory supports the medical ethical principle of autonomy.

A condemned individual’s request for physician involvement in their execution often draws analogies with the request made of the physician to assist in euthanasia. The nature of death facing a patient on death-row cannot be regarded as one that they can choose with their own free will. Most criminals would aim to avoid death by execution by whatever means possible. Therefore, the physician cannot accept the patient’s right to autonomy as justification for participation. Regardless, the patients request, if fulfilled by the physician, may infringe on the physician’s right to decide not to participate. While some argue that physician participation in an execution can be ethically justified by appealing to the condemned’s right to autonomy, this argument ignores the coercive nature in which this request is inevitably made.

In conclusion, it has been demonstrated that utilitarianism and deontology, the two major ethical theories, do not support capital punishment. Likewise, the medical ethical principles of non-maleficence, beneficence and autonomy, which are born of a compromise between these ethical theories, lend no justification to physician involvement in capital punishment. It follows that capital punishment can never be ethically justified, and that physician involvement in such a practice undermines the moral foundations of the medical profession, by breaching the fundamental principles which govern the practice of medicine.

REFERENCE LIST

1.    Radelet, M., Akers, R.L. Deterrence and the death penalty: the view of experts. J. Criminal Law Criminol. 1996; 87, 1-16.

2.    Beauchamp, T.L. and Childress, J.F. Principles of biomedical ethics. New York: Oxford University Press, 1994.

3.    Michalos, C. Medical ethics and the executing process in the United States of America. Med. Law. 1997; 16: 125-167.

4.    Moore, B. (ed.) The Australian Pocket Oxford Dictionary. 4^th Edition. Melbourne: Oxford University Press, 1996.

5.    Ridley, A. Beginning bioethics. A text with integrated readings. New York: St. Martin’s Press, 1998.

6.    Committee on Bioethical Issues of the Medical Society of the State of New York. Physician involvement in capital punishment. NY State J. Med. 1991; 91: 15-18.

7.    Ragon, S.A. A doctor’s dilema: resolving the conflict between physician participation in executions and the AMA’s code of medical ethics. University of Dayton Law Review. 1995; 20: 975-1007.

8.    Sikora, A. and Fleischman, A.R. Physician participation in capital punishment: a question of professional integrity. J. Urban Health. 1999; 76, 400-408.

9.    Council on Scientific Affairs, American Medical Association. Female genital mutilation. JAMA. 1995; 274: 1714-1716.