Doctors, Discipline, and the Death Penalty: Professional Implications of Safe Harbor Statutes

Abstract

State capital punishment statutes generally contemplate the involvement of medical providers, and courts have acknowledged that the qualifications of lethal injection personnel have a constitutionally relevant dimension. However, the American Medical Association has consistently voiced its opposition to any medical involvement in executions. In recent years, some states have responded to this conflict by adopting statutory mechanisms to encourage medical participation in lethal injections. Foremost among these are safe harbor policies, which prohibit state medical boards from taking disciplinary action against licensed medical personnel who participate in executions.

This Article posits that safe harbor policies, as limitations on medical board autonomy, safe harbor policies must be viewed not merely as artifacts of the political discourse on capital punishment, but as part of the historical narrative of American medical regulation. As a matter of policy, safe harbors cannot be defended by reference to the three traditional justifications for regulating medical professionals -- they are not necessary to keep the profession from exceeding the scope of its delegated powers; they do not promote traditional medical goals; and they do not satisfy the criteria for promotion of important state goals unrelated to medicine. This Article suggests that safe harbors and other restrictions on board autonomy, if not adequately justified, may weaken public confidence in the authority and independence of the medical profession. Because the loss of systemic medical trust tends to have a corrosive effect on the medical profession's ability to promote patient interests and public health, policymakers should be wary of adopting safe harbors without first considering their trust implications in the professional sphere.

[SSRN posted version is a pre-publication draft]

Keywords: medicine, physicians, professional regulation, licensing, discipline, lethal injection, capital punishment, legislation, medical ethics