A Prison Doctor, an Execution, and a Resignation

Although the following story is unrelated to drug development, it raises some potent ethical issues that, I suspect, will find a home here. I met Marc Stern when I was researching prison tattoo programs and his story, along with its accompanying considerations, have been on my mind ever since. It is great to have this forum in which to write about it, so thank you in advance to all you readers coming along for this particular bumpy ride.

When Marc Stern first accepted the job as Medical Director for Washington State’s Department of Corrections in 2006, he really wasn’t thinking much about the death penalty. The issue was important to him, but he was more focused on the numerous health issues now under his purview.

But three or four years into his tenure, it was time for the DOC to review the policy on executions and related preparations. Stern was among the handful of people who had to sign off on all policy revisions before they went to the Department’s secretary for signature. He was stunned to learn that the current policy called on the medical director to make sure that the gurney (ie, the death table) was in working order. “I remember laughing and said ‘No way!’” says Stern. He was adamant that no medical personnel be involved in death penalty preparations, and requested that the policy be updated to include specific wording that excluded all medical personnel from participating, however tangentially, in capital punishment. He was following the ethical cannon laid out by the American Medical Association (PDF), the American College of Physicians, and the Society of Correctional Physicians. These three professional bodies have guidelines in place for what, in their estimation, is the ethical way for a doctor to participate in executions: not at all.

Because he was busy monitoring so many pressing health issues, Stern delegated participation in the review of several corrections policies to a staff member, and, appropriately, simply was not invited to participate in the death penalty policy revisions. He assumed that the changes he wanted in the policy would be made, even in his absence. That never happened. Months later, court documents would reveal that the Department was making an effort to deliberately circumvent Stern’s instructions.

Fast forward to 2008 and the execution of Cal Coburn Brown, who had been held at Walla Walla State Penitentiary on a conviction of murder, rape, and torture. In November 2008, a week before the scheduled lethal injection, Stern found out that the chemicals had been acquired through the penitentiary’s pharmacy. That meant that medical personnel – pharmacists who were part of Stern’s staff – had been involved in execution preparations.

Stern brought the matter to the Department administrators, noting that he had specifically objected to just this kind of involvement. As a doctor, Stern reasoned, he had taken an oath to do no harm, and that oath had to extend to any staff he supervised, which amounted to about 700 people. That was why he wanted the Department’s policy to specifically exclude all healthcare personnel, rather than leaving it open for personnel to “opt out” of participation if they chose. Stern felt that he had vicariously participated in an execution through the filling of that lethal requisition.

But resolving the matter was simple: the Department just needed to return the chemicals to the pharmacy. Stern also said he needed the Secretary to allow him to investigate whether any other healthcare personnel had been involved in preparations for Brown’s execution. The Secretary refused to return the lethal fluids or to let Stern investigate. He consulted with his mentor, Robert Greifinger, who had quit his job as medical director of the New York State Department of Correctional Services over a similar matter. Stern felt he had no choice but to follow suit. In December 2008, he resigned.

A week later, Brown was granted a stay of execution. It was only temporary. In September 2010, he was the first person in Washington state since 2001 to be killed by lethal injection.

For Stern, involvement of medical personnel in death penalty preparations is fraught with ethical problems. If the IV for the execution was inserted by a nurse incorrectly, theoretically Stern, at the top of the command chain, could be brought in to reinsert it correctly. If a mistake is made by the medical staff, then Stern’s instruction could be brought into question – and should he be training his staff to handle executions?

Not all doctors agree with Stern. The issues are complex. Some people ask whether or not a lethal injection a medical procedure? Some doctors say they will assist with the set-up but not the execution itself. Some will be present only to call the time of death. But Stern sees an ethical conundrum even in that seemingly innocuous act. What if the injection or electrocution doesn’t work and the doctor feels a pulse. Pronouncing the person still alive “results in someone trying to kill him again,” says Stern. “Even that breaches the ethical responsibility of a physician.”

Still, some doctors say that their competence makes them ethically bound to participate: their refusal means that a corrections department will have to scrimp for a doctor who may be less skilled. A North Carolina physician whose license was revoked after he participated in an execution successfully sued his state’s licensing board and got his license back. The state subsequently overturned its ban on doctor participation in executions. A 2006 article in the New England Journal of Medicine by Atul Gawande lays out the dilemma, and varying opinions, starkly. One doctor—Carlo Musso, the only one who gave his name to Gawande—talks about not wanting to abandon another human in their darkest hour. Five years later, the issue remains unsorted.

A total of 46 people were executed in the United States in 2010. Stern compares that with the potentially thousands of inmates affected by other medical ethical problems. For example, if a prison guard wants an ornery inmate put on antipsychotics, should a doctor comply if the inmate has not been diagnosed with a psychiatric disorder? Currently, most states take DNA samples with mouth swabs, but for prisons where samples are attained through blood draws, should a prison nurse tap the vein if the DNA is potentially incriminating?

Relatively few people are directly affected by policies surrounding executions, but the issue cuts to the heart of medical ethics, not least because who exactly administers the death penalty remains murky (in part to protect the safety of those who are involved). For Stern, the issue isn’t about being for or against the death penalty, it’s about the fact that dedicating oneself to a profession of healing means abstaining from intentionally killing someone – whether that be one person, 46 people, or thousands.

Recently, Steve Spencer, former medical director of New Mexico’s corrections system, helped enact legislature that abolished the death penalty completely in that state.

Considering just these issues alone, it’s not hard to see why.

Marc Stern currently teaches at the University of Washington and consults with the federal government on correctional issues. His focus mainly resides with improving healthcare in correctional facilities, including short-term jails, where conditions are often much worse than in longer term prisons. He is working to resolve the medical error issues raised by the Institute of Medicine (in its seminal report, Crossing the Quality Chasm).

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Photograph of Alcatraz prison cell from http://www.flickr.com/photos/timpearcelosgatos/3557791151/sizes/z/in/photostream/
Photograph of Walla Walla State Penitentiary from http://www.flickr.com/photos/northwestgangs/5383764404/

Correction – added February 18, 2011: Marc Stern’s resignation was spurred by preparations being made for the execution of Darold Stenson, not Cal Coburn Brown. Darold Stenson’s execution was postponed and he remains at Walla Walla State Penitentiary.

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8 Responses to A Prison Doctor, an Execution, and a Resignation

  1. Barry Rueger says:

    Broken link at “He was following the ethical cannon laid out by the American Medical Association (PDF)”

    I think you wanted:
    http://www.ama-assn.org/ama1/pub/upload/mm/code-medical-ethics/206b.pdf

  2. Jessica says:

    thank you! link corrected.

  3. Dudley Sharp says:

    Some reality.

    “Physicians & The State Execution of Murderers: No Ethical/Medical Dilemma”

    http://prodpinnc.blogspot.com/2009/10/physicians-state-execution-of-murderers.html

  4. Sherilyn Peterson says:

    The execution that Dr. Stern resigned over was D.J. Stenson’s scheduled execution date, not Cal Brown’s. Mr. Stenson was scheduled to be executed in December 2008. It was shortly before that execution date that Dr. Stern resigned (November). The drugs obtained were for Mr. Stenson’s scheduled execution. Mr. Brown’s execution was not then scheduled and was not set until later for March 2009. Mr. Stenson’s lawyers, including myself, obtained stays of execution for Mr. Stenson in December 2008. The following March, Mr. Brown’s lawyers moved to intervene in my case (challenging the legality of Washington State’s execution methods, and they obtained a stay for Mr. Brown in that case. In May we went to trial in the lethal injection case and I presented testimony from Dr. Stern about the events you discuss in your blog. A correction to the facts discussed in your blog is in order.

  5. Jessica says:

    I’ve checked with the Washington State Department of Correctoins, and have added a correction to the blog post. Thank you.

  6. Nancy Volkers says:

    It’s “ethical canon” not “ethical cannon”…

  7. Sherilyn Peterson says:

    Perhaps the article itself should be corrected rather than adding a small postscript–journalists should report the facts correctly in the first instance. I have spent enough time giving you the correct facts–you should correct the blog accordingly.

  8. Dudley Sharp says:

    The main correction and up-date should be that there is no medical/ethical canon that physicians have to agree to, regarding “do no harm”, that have anything to do with executing murderers, which is not a medical procedure, as detailed in my link, above.