This Article addresses an aspect of Baze v. Rees (the Court’s recent lethal injection decision out of Kentucky) that has received little attention but threatens to have a significant impact on the way in which the holding of Baze is implemented in other states. In short, several of the Justices’ opinions in Baze were premised on the faulty notion that doctors cannot and will not participate in executions. As a result, several Justices appeared to rule out the feasibility of a remedy requiring physician participation, and openly expressed suspicion of the motives of lawyers who would propose such a remedy.
This Article seeks to expose two myths that have come to dominate the capital punishment discourse: first, that requiring physician participation would grind the administration of the death penalty to a halt; and second, that advocacy for such a requirement is a disingenuous abolitionist strategy as opposed to a principled remedial argument. As the Article demonstrates through a review of available research and recent litigation, doctors can, are willing to, and in fact do regularly participate in executions. States, however, have strategically emphasized the positions of national medical associations (the ethical guidelines of which are not binding on doctors) and exaggerated their inability to find willing doctors. They have also exploited the activism of the death penalty abolitionist movement, which has long decried physician participation in executions. Lawyers for death row inmates – many of whom consider themselves abolitionists – have argued in litigation that skilled anesthetic monitoring by trained medical professionals is a necessary component of a constitutional three-drug lethal injection protocol. Abolitionist calls for discipline of medical professionals who participate in such executions directly undermine the credibility of this position, and feed the perception that death penalty lawyers are talking out of both sides of their mouths.
Lower courts now grappling with how to implement Baze should know the truth about physician participation. The requirement that trained medical personnel monitor lethal injection executions to ensure that inmates do not suffer excruciating pain should remain on the table as a plausible remedy. Courts should recognize the discussion in Baze on this issue for what it is: dicta, unaided by the record, and based on unfounded assumptions.