Returning to our first sphere of inquiry, is the death penalty justified -- does it violate a prisoner’s human right to health? Traditionally, two main explanations for the death penalty have been offered - deterrence and vengeance. The evidence on deterrence is doubtful at best. On the one hand, statistics do not indicate the existence of a significant deterrent effect. A United Nations committee studying capital punishment found that "the data which now exist show no correlation between the existence of capital punishment and lower rates of capital crime." On the other hand, however, there is significant question as to whether statistics can be expected to show the deterrent effects of the death penalty. "We partly know who those are whom it has not deterred; but who is there who knows whom it has deterred, or how many human beings it has saved who would have [without the threat of the death penalty] lived to be murderers?" For reasons such as these, it is difficult to use the efficacy (or lack thereof) of the death penalty to either support or oppose its application. Basing the permissibility of the death penalty is similar to gambling; its proponents gamble with the lives of criminals that it does, in fact, have a deterrence effect; it’s opponents gamble with the lives of potential victim that it does not.

Whether the motive of vengeance, or retribution — which some would actually call justice -- is a moral reason for using the death penalty is similarly debatable. Aristotle defined justice as "giving each his due." This type of justice is interpreted by some to be supportive of the lex talionis philosophy — "that the worst crime be punished with society’s worst penalty." Opponents of the death penalty feel that it is barbaric and savage; an advanced society such as ours should not participate in it. Once again, however, it is merely a matter of opinion. To argue that "capital punishment is inconsistent with the advancement of civilization, is to rely on arbitrary definitions of ‘advancement’ and ‘civilization’ for a circular argument."

Thus, whether the death penalty is justified, on these or other grounds, cannot be conclusively demonstrated one way or the other; it must necessarily remain in the realm of personal opinion. Because it is not patently unjustifiable, we cannot yet dismiss the possibility of physician involvement in the death penalty.

We will therefore proceed to the second area of analysis - whether there is a right to health that the death penalty violates.

The existence of human rights is, in today’s world, widely acknowledged. The most basic of these widely documented rights is the right to life. The Universal Declaration of Human Rights contains the provision, "Everyone has the right to life, liberty, and security of person." The right to life seems to be a necessary precondition for having any rights to health; thus, when I refer to the "right to life" throughout this paper, I am implicitly making reference to the broader right to health as well.

Although the phrase "right to life" seems pretty clear, there are two important concerns that can allow such a right and the death penalty to coexist together. First, no rights are absolute. "Human rights are sometimes designated as prima facie rights. And it makes little or no sense to think or talk of them in absolutist terms." Thus, it is possible for people, through voluntary actions on their part, to surrender some of their rights. For example, although the Universal Declaration of Human Rights guarantees "liberty" to everyone, we have no qualms about confining felons to small prison cells. As Mill writes, "Does fining a criminal show want of respect for property, or imprisoning him, for personal freedom? Just as unreasonable is it to think that to take the life of a man who has taken that of another is to show want of regard for human life."

Secondly, many of the documents guaranteeing the right to life either implicitly or explicitly make allowances for the death penalty. An example of a subtle allowance for the death penalty can be found in the American Convention on Human Rights, which states, "Every person has the right to have his life respected…. No one shall be arbitrarily deprived of life [emphasis added]." The instrument does not prohibit all taking of human life by the government, merely that which is arbitrary. Thus, under this document, it is not an abuse of human rights to execute a guilty party after he has exercised his right to a fair trial, with all the procedural requirements of due process, and has exhausted his appeals. Other agreements are even more explicit in their allowance for the death penalty. For instance, the International Covenant on Civil and Political Rights declares, "No one shall be arbitrarily deprived of his life. In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes." Were the death penalty inconsistent with the right to life explicitly protected by the document, there would be no exceptions for countries which have not abolished the death penalty — they would necessarily be directed to do so.

Despite these weighty arguments that the death penalty and the right to life may coexist, there are those who maintain that the death penalty violates the right to be protected from barbarous punishments. The Universal Declaration of Human Rights directs that "no one shall be subjected to torture or to cruel, inhuman, or degrading treatment or punishment." The death penalty, its opponents argue, necessarily falls into the realm of proscribed sanctions and is therefore a human rights violation.

There are two responses to such a charge. First, the death penalty does not inherently "involve so much physical pain and suffering that civilized people cannot tolerate them - e. g., use of the rack, the thumbscrew, or other modes of torture."

Aside from such patently impermissible punishments, the perceived barbarity of a particular form of punishment is necessarily a function of the society in which it is administered. Punishments that were not "cruel and unusual" two hundred years ago would be unthinkable today. Emphasizing the flexibility inherent in the words "cruel and unusual," United States Supreme Court Chief Justice Warren Burger wrote, "The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." The American public enthusiastically endorses the death penalty; given the wide amount of support execution enjoys, it cannot be said that it violates the standards of decency of our society.

Opponents of the death penalty make much of the fact that the Supreme Court once struck it down as unconstitutional on Eighth Amendment grounds. They neglect the fact that the court, in ruling it was "cruel and unusual" was not referring to execution itself; in reality, the court held it to be in violation of the Eighth Amendment because it discriminated against poor minorities. "It would seem to be incontestable that the death penalty inflicted on one defendant is ‘unusual’ if it discriminates against him by reason of his race, religion, wealth, social position, or class, or if it is imposed under a procedure that gives room for the play of such prejudices." Indeed, less than five years later the Court was to reinstate it, on the grounds that states made discriminatory application of the death penalty less likely. The Court has held for over one hundred years: "Punishments are cruel when they involve torture or a lingering death; but the punishment of death is not cruel within the meaning of that word as used in the constitution. It implies there something inhuman and barbarous, something more than the mere extinguishment of life."

The second response to the human rights-based objection is that any alternative to the death penalty is liable to be far harsher on the prisoner (without making the death penalty’s psychological impact on society), and more liable to violate his human right against cruel punishments. Consider life imprisonment at hard labor without possibility of parole for a relatively young murderer. "Is death, then, the greatest of all earthly ills?… What comparison can there really be, in point of severity, between consigning a man to the short pang of a rapid death, and immuring him in a living tomb, there to linger out what may be a long life in the hardest and most monotonous toil, without any of its alleviations or rewards. Surely, compared to this (which is the alternative many people opposed to the death penalty advocate), death — far from being a cruel and unusual human rights violation — seems a sweet repose.

Having responded to the claim that physicians should not participate in the death penalty because it is inherently a human rights violation, we can investigate our final field of inquiry - whether physicians, despite the legitimacy of the death penalty, have special responsibilities which preclude their involvement. This question is especially pertinent in states that execute through lethal injection; the medium seems perfectly suited for physician assistance. The overwhelming majority of medical organizations seem to line up solidly against the intervention not only of physicians, but of health professionals in general, in capital punishment. For example, the International Council of Nurses "considers participation by nurses, either directly or indirectly, in the immediate preparation for and carrying out of state authorized executions to be a violation of nursing’s ethical code." The World Medical Association has made similar objections. Its Resolution on Physician Participation in Capital Punishment asserts that "regardless of the method of capital punishment the state imposes, no physician should be required to be an active participant. Physicians are dedicated to preserving life. Acting as an executioner is not the practice of medicine."

Drs. Robert Truog and Troyen Brennan, in an editorial in the New England Journal of Medicine, condemn physician involvement in capital punishment. They distinguish among six different stages in the execution process in which physician assistance is sometimes utilized. The doctors argue that the only point in the entire process in which physicians should ethically involve themselves with the execution is at the outset, to "proscribe sedatives and tranquilizers at the request of inmates who are anxious about their upcoming execution." This sentence is indicative of the attitude that Truog and Brennan take toward the condemned. Even though guilty of barbarous crimes, and about to be punished by death, the condemned are still considered to be the doctors’ patients, and so have the right to have as much of their suffering alleviated as possible (notwithstanding the fact that the suffering is supposed to be part of their punishment for their crimes). They write in their article that "the death-row inmate may be seen as a terminally ill ‘patient’ whose death is unavoidable and imminent."

Aside from intervention on the part of physicians before the actual execution begins, the authors of the editorial would ban any further doctor participation in the process. That is, they would bar doctors from procuring the materials needed for a lethal injection, preparing the solution, performing the execution, pronouncing the prisoner dead, certifying his death, and harvesting organs for donation.

Although some states — undoubtedly to keep within the boundaries of what is permissible under the Eighth Amendment — require the involvement of a physician or nurse in at least one step in the execution process, the World Medical Organization asserts that physician involvement is unnecessary. "Physician services are not required to carry out capital punishment even if the methodology utilized pharmacological agents or equipment that might otherwise be used in the practice of medicine." Unlike Truog and Brennan, however, the WMO would allow doctors to certify death.

Despite small differences such as these, the fact remains that the majority of organizations of health professionals oppose physician (or other professionals’) involvement in the death penalty. They argue that the maxim "do no harm" applies always and everywhere — that they can never apply their knowledge in such a manner as to compromise any of their patients’ health — including condemned felons. In the words of Truog and Brennan, "Medicine is at heart a profession of care, compassion, and healing. Physician-assisted capital punishment does not encompass these virtues." Though they go too far in implying a connection between the atrocities of Nazi doctors and physician-assisted capital punishment, as well as in their demands to have the licenses revoked of physicians participating in executions, they do raise an interesting theoretical point about the nature of medicine.

They argue that medicine is a special body of knowledge that should only be utilized for one very narrowly defined purpose: to help the patient. I would suggest an alternate interpretation which would allow for physician involvement in executions. Medical knowledge should be used for legitimate societal goals. One such societal goal is helping the sick to recover. However, legitimate social goals can sometimes be in direct conflict with a strictly healing approach to medical knowledge. For instance, in a world growing evermore unstable through terrorist attack and civil insurrections, as the last remaining superpower, the United States is sometimes forced to intervene militarily. In order to safeguard the safety of our sons and daughters whom we send abroad, the military sometimes applies medical knowledge, with the help of health care professionals, into its research and development program, constantly looking for more effective ways of disabling the enemy.

Although we are used to seeing medicine in everyday life as a tool which is used to heal the sick and injured, there are occasions when it can further other social goals as well. One such social goal is the achievement of an effective criminal justice system. Truog and Brennan deride this concept; they mockingly call the idea "prostituting medical knowledge and skills to serve the purposes of the state and its criminal justice system." It can instead be viewed as a healthy relationship. For those doctors who believe in the death penalty, there should be no sanctions for participating in a legal procedure, which they are doing for the best interests of society, and in the name of justice.

By examining the justifications behind the death penalty and the human rights criminals retain upon being convicted of a felony, we were unable to deduce any legitimate grounds upon which physicians, or any health personnel, should be excluded from participating in executions. While some physicians would argue that participation by doctors in administering the death penalty amounts to a betrayal of the very precepts of medicine, I have attempted to provide an alternate perspective on the situation. Just as no doctor should be compelled to assist in an execution, no doctor should be banned from doing so, either.