Good Law | Bad Law #102 - Is Lethal Injection Fatally Flawed on Moral and Constitutional Grounds? w/ Dr. Joel Zivot

Aaron Freiwald: [00:00:00.06] Welcome back to Good Law Bad Law. Well we don't often have physicians on this podcast but today we do and I know you're going to be fascinated by our conversation with Dr. Joel Zivot. He is a anesthesiologist and intensivist in Georgia and one of the country's leading experts on lethal injection. The prevalent method of administering the death penalty in this country and we're talking about the moral and ethical issues involved in lethal injection. In the context of a really fascinating Supreme Court case that's going to be argued in just a couple of weeks and why doctor Zivot believes that lethal injection is cruel and unusual. And we have to come up with some other way of thinking about the death penalty. This isn't a pro or anti death penalty discussion. This is really a discussion about the intersection between constitutional rights. Both in the Eighth Amendment the right to not have cruel and unusual punishment. Also the constitutional right of an inmate to receive health care on the one hand and the taking away of a inmate's health care by administering the death penalty. How this factors in with all of the medical ethics and moral obligations that physicians are obligated to follow and be concerned with. Are we transferring as a society our all of our responsibility when it comes to understanding the death penalty are we just giving that over to doctors because somehow that makes us not think about the death penalty in the same way. All of these subjects and more in this episode of Good Law Bad Law. Stay tuned.

 

Aaron Freiwald: [00:02:09.34] On this episode of Good Law Bad Law we're talking about the death penalty. Can a death row inmate be too sick to receive capital punishment. What are the medical ethics issues involved in administering lethal injection as a method of receiving the death penalty. What are the medical concerns surrounding the death penalty. To help us understand that is one of the country's leading experts and literally an expert witness in a case that will be argued before the Supreme Court in just a couple of weeks. My guest today Dr. Joel Zivot so doctor Zivot first of all thank you so much for being on the program.

 

Dr. Joel Zivot: [00:02:52.36] Hi thank you very much for having me.

 

Aaron Freiwald: [00:02:55.49] We we're going to be talking about this case. The Bucklew case which is before the Supreme Court this term a case that really calls into question many aspects of the way in which the death penalty is administered and particularly the method of lethal injection. And doctor Zivot You are an expert witness in this case. Your testimony not only as a central part of the issues the Supreme Court's going to face but also I think really so important for us all to understand about where we are in this country when it comes to the death penalty and what some of the bigger moral ethical and medical and scientific issues are when we need to understand the death penalty so very grateful to have you on to talk with me about these things. But first of all as we always do if you wouldn’t mind giving us a little background on yourself I know you are a physician if you just give us some background on your your medical background what type of physician you are and and what you do when you're not involved in this type of case.

 

Dr. Joel Zivot: [00:04:14.21] Sure. Thanks Aaron. And please just call me Joel. That's fine.

 

Aaron Freiwald: [00:04:18.11] Super OK I will thanks.

 

Dr. Joel Zivot: [00:04:21.25] So I am I have two medical specialties. The first is anesthesiology and as an anesthesiologist. I work in an operating room setting and and I provide anesthetics to patients who are undergoing surgical procedures. And my second specialty is something called Critical Care Medicine and that's kind of a complimentary specialty with anesthesiology and in that role I work in intensive care units and care for individuals who find themselves there as a consequence of a serious and significant illness. And I've been practicing both of those specialties for about 25 years now. So I guess I’ve seen a few things along the way.

 

Aaron Freiwald: [00:05:08.2] Right. And you were also you also teach is that right.

 

Dr. Joel Zivot: [00:05:13.51] I do. While I know I have a academic appointment and I teach a variety of individuals. I teach medical students and physicians who are in training. I also teach undergraduate students and I have an occasional appointment and teach law students actually as well which is very fun for me as a doctor. Usually if I'm in a room full of lawyers I feel rather nervous but so I've had that good experience of collaborating with with many excellent lawyers. And so I also do teach law students as well on occasion.

 

Aaron Freiwald: [00:05:50.68] And what law school is that that you're affiliated with.

 

Dr. Joel Zivot: [00:05:54.22] I am affiliated with Emory University in Atlanta. And let me just of course mention that the views that I'm expressing our mine and I'm not speaking on behalf of course of Emory university or the school in any capacity.

 

Aaron Freiwald: [00:06:10.14] Right OK. And since we're talking about the death penalty we'll get into the facts of the Bucklew case and your involvement in it. But I know from from chatting with you a bit that you have been involved in one way or another in death penalty litigation through a number of cases over the years. Tell us a little bit of your background on that and how you first became involved in these cases these capital cases.

 

Dr. Joel Zivot: [00:06:37.24] Sure. Well let me say that I didn't have much connection with capital punishment. I didn't think about it much. I live in Georgia that's a state that does practice capital punishment and so of course I was aware of capital punishment but I hadn't set my mind to it much. The way it began for me was in an earlier version of the method of capital punishment that we now refer to as lethal injection a drug used to be used. That was the first drug in lethal injection and this drug was called sodium thiopental sodium thiopental is a drug in the barbiturate class. This is a drug that I use many times perhaps thousands of times to treat patients until one day the drug disappeared off the shelf and it was no longer available. And this was a source of puzzlement and concern to me and I wondered what happened to this drug and Why It Disappeared and in my investigation of the disappearance of that drug I learned that the drug was again used in capital punishment and it was a decision by the manufacturer at the time Hospira which was the pharmaceutical company that was making sodium thiopental the last company to make it making it at the time in Italy and in the European Union where Italy is a member. There is a rule there that no company can manufacture products that are used in capital punishment. And so the E.U. issued a warning to Hospira. Hospira by the way is an American company but they were manufacturing in Italy and the company made a decision to stop making sodium thiopental because it didn't want to incur the risk of a sanction. And so sodium thiopental disappeared from the world because of this. And I.

 

Aaron Freiwald: [00:08:34.67] But it's also fascinating to me too that your earliest introduction into this world of capital punishment and death penalty cases. You come at it from the standpoint of a physician who's familiar with a drug that is used to save lives. But come to think of it as a drug that is also used to take life.

 

Dr. Joel Zivot: [00:09:02.36] I think Aaron I think this is an excellent and central point that you make and you'll see in this conversation that what I think is at issue here is the lexicon that is used by people when they talk about these sorts of things. So for example when we say sodium thiopental Of course I think of that as a drug it's used. You point out to treat people and to help them get well the state of course has another intention. They take that and they re-purpose a drug I think and turn it into poison. But that's not how they describe it of course. And they and people think about these things and they say the word drug or even medicine. No medicine or drug is invented by a pharmaceutical company with the purpose of killing. Hospira was not making sodium thiopental anticipating the lethal injection market. That was someone else's decision. And I think that the lethal injection broadly is designed intentionally to impersonate a medical act in every respect. And there I think is where the central problem lies.

 

Aaron Freiwald: [00:10:13.28] Right. And we're going to get into that. You're right. Because I introduced this topic is one that involves medical ethics. And one of the as often happens in important cases and particularly in important Supreme Court cases is you'll have briefs and arguments made by the parties in this case there's a death row inmate on one side and there's the state of Missouri on the other side where he is on death row currently but often there will be other individuals or organizations who are interested in the outcome of the case and think they can contribute to the discussion and the arguments and one of the entities that submitted a brief in this case in the Bucklew case is the American Medical Association and their discussion which we which we will get into is all about the medical ethics of physicians and medicine and healing what would ordinarily be used in healing of human beings being used as part of the process of deliberately taking lives. We will we have to get into that anyway. Go ahead I want to have you go back to where you were before which is helping us understand how you first got into an awareness of this issue and then and became more deeply involved in it yourself.

 

Dr. Joel Zivot: [00:11:41.63] So I based upon this finding of the disappearance of sodium thiopental I set about to investigate again the explanation and in my explanation that led me to capital punishment. And after considering that for a while I decided to write an opinion piece that I published that was published in USA Today a few years ago. And I wrote about how I how I was concerned in the strongest way that lethal injection was now encroaching on the practice of medicine in a way that I found egregious and I talked about it you know went I guess public on my my views on this and it's difficult. You know doctors feel very wary about operating in the public space on some of these issues. I understand that's not the way that we're necessarily schooled but I felt very strongly when I wrote this piece and that piece you know set up a can of events where I began to get contacted by people about this case. And I my opinion was sought then for a series of lethal injection cases that I guess sprung out from my initial opinion piece and then time.

 

Aaron Freiwald: [00:13:08.05] That opinion piece though. WI mean what was the crux of your argument. You said that you were concerned about capital punishment and the use of lethal injection encroaching on the practice of medicine. How and what specifically was your concern there.

 

Dr. Joel Zivot: [00:13:26.22] So my concern was that execution does not need medicine that there's nothing in the law that says that execution should be only conducted in a particular way in this case with lethal injection and the use of again my medication that the state has a different intention for. And then even to the extent that these medications are no longer available. So what I said and I appreciate that I used strong strong language and I said that the method of execution needs to change that if the state you know it's the state's business to execute people. But it has to stay away from from anything that is medical. And perhaps it's time to bring back you know the noose or the firing squad. And that two things of course I am in no way expert but my point was that I felt the state was unreasonably encroaching dangerously encroaching on the practice of medicine here to the point that now I thought that that patients individuals with no connection to this at all could conceivably suffer as a consequence of an unavailability of medication that would normally be available for them. And that was the I guess the crux of my initial argument here.

 

Aaron Freiwald: [00:14:50.32] Well my mind is going in so many different directions at one time right now. But because this idea of suffering of course is crucial here because we have an Eighth Amendment to the constitution that forbids any cruel and unusual punishment. We're talking about the ultimate punishment. We talk about the death penalty. And so we're going to need to have you know very front and center in our thinking through of this problem. The idea that it is in our Constitution and the Bill of Rights that that as a government and as a society we value that limitation on punishment essentially. But you know you brought up a fire the firing squad and I did want to get in a little bit of facts and figures to so people understand because I think I didn't really fully appreciate this until I started doing my research and I think people need to understand that. And I'll just just rattle off a few basic pieces of information that I think are important here. That we have 33 states in the country presently that allow the death penalty as a form of punishment for capital punishment. And that since the beginning of our country we've had state run executions for most of our country's history. Any prisoner who received the death penalty was executed by hanging or by firing squad. You mentioned firing squad and that that changed at the latter part of the 1800s when the electric chair was invented. But it was really at the end of the 1900s that lethal injection first was used as a form of execution and to the point where now the vast majority of executions in this country are carried out by the method of lethal injection in the first 10 years of this century. From 2000 to 2009 there were roughly 550 executions carried out in 27 states. Ninety eight point three percent of them by lethal injection. So this is the preferred and predominant method of execution in our country with most of those with a with a very sizable number of those executions taking place in the state of Texas and Oklahoma following behind in second place. So I just thought that background is important for people understand the scope of this that this isn't just one case we're going to be talking about the case of Russell Bucklew but this is something that perhaps outside of people's consciousness on a day to day basis we're very concerned about midterm elections and the latest tweet from a president and things like that. But so most people are thinking about capital punishment but it is something that is a fact of life in our in our system of carrying out justice in this country. So you know with that background when you start getting involved in this issue by this point lethal injection is it and you're I imagine you're finding just how widespread is the use of lethal injection when it comes to administering the death penalty.

 

Dr. Joel Zivot: [00:18:39.3] Yes. And I want to you know make a few things clear here too. So let me start by saying that I am not an advocate for any particular kind of method of execution. And so in my teeth when I talked about I think the firing squad or the gas chamber or hanging I was meant it was I recognized that it was not that I was an advocate for a method. And that's something that I think frustrates medicine and people like me where people ask me all the time well if this method isn't good then name another method and my position is I'm not what you're asking me is. Am I an expert in killing. And my answer is that as a physician I'd like to think of myself as an expert in un-killing. And I have no knowledge as to what method of execution would be better. I cannot opine. And I did not learn this in medical school or in my practice how to measure this issue in this way. Let me also say that what's interesting about the method of execution I will say that if you look in the last century that I don't believe that any method of execution has ever actually been set aside per se that there are methods of execution that no longer take place. And the reason why methods of execution have been set aside is not because of a court decision but because of a public opinion about what is perceived to be something now that is regarded as cruel and what does it mean to be cruel. I think that cruelty as a concept evolves naturally with the maturation and progression of a civil society. And so where the gas chamber or the firing squad or the guillotine or hanging these methods of execution have come and gone. Now the problem of course is from the court's perspective cruelty is something that is of concern to the condemned but they're actually the least qualified in a way if you will to opine on whether or not their own death was cruel. Clearly. Once dead we can never ask them and that execution doesn't provide for some sort of ongoing cruelty machine that can be attached as someone dies. And so cruelty in fact has really been an experience of witnesses. That the witnesses here are critical to the experience of an execution and the challenge I think too is that lethal injection really creates a curated event of a killing of state killing in terms of what can and cannot be seen what can and cannot be measured. And further that when one reads about or talks to people who witness an execution let me say I myself have witnessed an execution here in Georgia. It's pretty hard to know what you're seeing because not much necessarily happens and not much happens because of the nature of the way that the chemistry is working. But let's be clear that the interior experience of the person that is now dying is not accessible to the eye of the witness. And so you can be fooled and misled into thinking that what you're seeing is proceeding in a way that is not cruel. I will tell you that in my opinion having reviewed many lethal injections the cruelty is on the inside. It can't be seen by the witnesses. And so I think people have been misled into thinking that what they're seeing now is a peaceful sort of way to die and to be clear too the court is not looking for a peaceful and it's not looking for a humane. It's really the standard is only not cruel and I have said before that the absence of cruelty is not the presence of humaneness because people are very concerned about humaneness in execution. Those people that are advocates for capital punishment and feel that the inmate having now been convicted and having committed a terrible crime for which I am alive to I recognize that there's real suffering here from survivors and so on that that the inmate is owed no humaneness and that punishment should be as severe and retributive as possible. But the court I think rightly has tried to create some temperance through this concern about cruelty but cruelty is again hard to measure.

 

Aaron Freiwald: [00:23:41.58] Well and you're speaking of such a fundamental question here which is cruelty according to whom. And you know it is the Eighth Amendment against cruel and unusual punishment meant to protect the one who's being punished. If so and this is you were quoted actually in the American Medical Association's submission to the Supreme Court. According to the to the brief that was filed you're quoted as saying the dead can never tell us if they experienced cruelty in their death the responsibility to guard against cruelty is entirely in the hands of the observers. But you're I think raising as well a question about what how we think about cruelty. I mean the dead can't come back and tell us what they experienced in their final moments of course. But there is an appreciation for what is cruel as measured by what people feel about what happened. Those who are actually in the room witnessing the execution certainly but also all of the rest of us to the extent we become aware we're conscious of what actually takes place. You know this is you know another point raised in this brief that if we were really concerned with avoiding cruelty to the one who is being executed and I know that you won't opine you won't give us an opinion on which method truly is the most humane or the least cruel but probably if we were looking for the swiftest method the one that brings death about the most quickly it probably would actually be the guillotine and this is discussed in the brief. It's death comes pretty quickly when when that blade falls compared to anything else. But there is a sense there's a feeling about that being cruel that probably is why the guillotine isn’t used today as you say we have a sense of ourselves as a mature and civilized people that wouldn't use that method. But what you know to what extent are we actually aware of the method that is used and what do we think about you know isn't lethal injection so pervasively used now because it's perceived as you say as a medical like procedure and one that we can think of as a sanitary or sanitized form of execution because after all it's just medicine that's put into somebody's veins and then quietly they go.

 

Dr. Joel Zivot: [00:26:40.21] Aaron I think I think you're absolutely right. I think that that again that what I call a impersonation of medicine is not and not an accident. And I think the irony here of course is that when the guillotine was put in place that actually was felt at the time to be not cruel to be less cruel than other methods of executions or the guillotine was felt to be a progressive method of execution because of your to your point perhaps instantaneous decapitation which resulted in some sort of instantaneous death. So of course now when we think about the guillotine it seems horrifying to us.

 

Aaron Freiwald: [00:27:19.83] Right.

 

Dr. Joel Zivot: [00:27:20.59] And that we would never think that the guillotine would be a less cruel method of lethal injection. But these are This is the crux of the problem is how does one gauge cruelty. What's involved in measuring cruelty. I don't think I think that what is employed generally with respect to witnesses is their capacity for empathy but in truth the way that witnesses of course are selected is that every witness there of course has an opinion as to what is happening before them. So witnesses for the state may be in favor of capital punishment witnesses for the inmate may be against it. Witnesses of the survivors have a different point of view. So all of these points of views impact the way that we measure what we are seeing with our eyes. And this is well understood in terms of the problems of eyewitnesses to other sorts of events. You know our view on what we're seeing affects the way we we gauge it especially something like lethal injection where not much seems to happen. So if not much seems to happen then it's possible to lay out all manner of opinion to you know to determine or try to gauge again what has been what has been witnessed.

 

Aaron Freiwald: [00:28:47.05] Well and you know I think this is important to bring into the discussion before we get into some of the specifics of the case and what that specific case might tell us about this issue. But in the submission to the Supreme Court by the petitioner by the inmate Mr. Bucklew the lawyers representing him in this case point out speaking of the Eighth Amendment that the wisdom this is on page 8 of their submission we'll will post a link to all these missions if people want to read this. The wisdom of the Eighth Amendment is that it recognizes the temptation to be indifferent to the needless suffering of those society condemns and demands we resist it. A society that tolerates stripping any man of his irreducible dignity even one who merits the ultimate punishment takes a fateful step. This court referring to the Supreme Court is uniquely positioned to defend the sacred value and it should do so in this case so there is again a sense here that what we're really talking about is what cruelty means in punishment in the most extreme form of punishment. And what we're allowing ourselves to resist when we think about lethal injection as the way in which death is administered and I think that's you know when you talk about the Observers I mean ultimately we are all observers to to an execution even if we're not actually in the room where it takes place.

 

Dr. Joel Zivot: [00:30:38.32] I think that executions are meant to be public events and this may be an effrontery to people because they make believe that it would be indecent to witness an execution. I guess I will say as an aside I would not want to live in a country that executes people in secret and that execution is meant to be observed. And the observation here is again is not meant for some degraded participation. It's really meant to be a guard against cruelty it has always been such that is the guard that's always been the case. And it's disturbing to me that the states some states that practice execution had made the witnessing execution increasingly difficult. Or again as I've said stated before as a curated event where you can't really see it. And so you don't really know or you've seen something and you think well that looked ok I guess. And I think these things need to be exposed and in order to have a proper public debate on what we think about capital punishment let's shine some light on what's happening here. And then we're in a better position to decide.

 

Aaron Freiwald: [00:31:57.55] Right.

 

Dr. Joel Zivot: [00:31:58.04] Because I think that presently it's obscured from our view in many ways.

 

Aaron Freiwald: [00:32:04.0] I wonder. I mean I wonder what would happen to the death penalty in this country if if executions were televised. I mean right. They always have been public to some extent. What would be the difference between having it witnessed by the individuals who are physically present and actually being something everyone could see.

 

Dr. Joel Zivot: [00:32:28.12] I'm not trying to create a ghoulish sort of situation but I do think it's important to in order to fully bring to bear one's empathy which again is necessary to gauge cruelty. It's important to really understand what is at play what is really happening what this death really looks like. And that's why I actually think that lethal injection has honestly been regressive because what it has done is that it has blocked our capacity to engage our empathy to be able to measure whether what we see before us is cruel or not.

 

Aaron Freiwald: [00:33:08.92] It's almost like the use of lethal injection has anesthetized us to a desensitized us to what execution really is what's involved to the to the prisoner to the one receiving the punishment. How we all experience it what we think about it what's actually going on what it means as a society. We're all in effect being desensitized to this.

 

Dr. Joel Zivot: [00:33:37.75] I agree with you Aaron. I agree with you. It's a problem.

 

Aaron Freiwald: [00:33:42.22] So let's talk about let's talk about this specific case because it's a pretty it's a pretty extreme case in a lot of ways for for a death penalty. I mean death penalty of course should involve the most serious crimes committed. And this certainly is no exception. And it's important to note that Russell Bucklew who was convicted 22 years ago for a pretty hideous crime spree and he murdered a man he raped a woman who had been his girlfriend. He shot at a little kid. He engaged the police in a chase that resulted in a lot of risk and injuries to police officers. I mean he did some very very bad things there's no doubt about it. And importantly it's my understanding he's not challenging his conviction. He's accepting that he is to receive the ultimate punishment. But he's asking the court in this case that he not receive lethal injection. And although we've noted this earlier the pervasive use of lethal injection. It is I think important for people to know that and I think you alluded to this earlier. There are other methods currently available and allowed under varying state law in Missouri for example where where this execution may ultimately take place lethal gas is an alternative to a lethal injection. And in the last number of years there I was surprised to see there actually has been one execution by firing squad. And still a handful of executions carried out by electrocution by that method as well so Bucklew is not saying let me appeal and try to avoid this punishment. He's saying I can't and shouldn't be subjected to lethal objection. I think I keep saying lethal objection I mean lethal injection. But but Joel as a physician you need to explain why this is so relevant in his particular case and may be relevant in all cases but it's particularly pointed in his case for some special medical reasons. I think you need to explain a little bit.

 

Dr. Joel Zivot: [00:36:17.28] Yes. Sure. Well let's by way of background let me raise a couple of things that need to be understood. The first thing is that inmate after Estelle versus Gamble inmates have been are now constitutionally required to receive health care. So interestingly you know inmates are perhaps the only citizens of this country that their healthcare rights are constitutionally protected.

 

Aaron Freiwald: [00:36:47.73] And you're talking about the Supreme court case that made decision.

 

Dr. Joel Zivot: [00:36:50.61] Yes it was Estelle versus Gamble and I think that what's interesting and further that that health care has to be real. So it can't be pretend. When you're an inmate even getting you know one tablet of Tylenol can be a complicated sort of endeavor. So the health care has to be real it has to be available. And it raises a lot of other kinds of complex problems. The other thing is that prolonged incarceration is hard on people's health. And as you point out you know Russell Bucklew has been on the row for 20 22 years waiting to be executed.

 

Aaron Freiwald: [00:37:29.04] Right.

 

Dr. Joel Zivot: [00:37:29.83] And as a consequence of his prolonged incarceration he has I suppose as has others have developed coexisting medical problems and in his case he has a very unusual medical problem. He has something called a cavernous hemangioma. Cavernous hemangiomas are tumors that consist of a kind of a plexus of blood vessels that form into a collection and the blood vessel tumors grow and expand in the body and in his case these are actually in his throat and in his face. And so these tumors now have grown and they are altering the normal anatomy of his throat and his airway. And so when one talks to Russell Bucklew he has a voice quality that sounds to my ear to be someone again who has a narrowing of the aperture of their airway. And as a consequence. And let me also point out too that these tumors are not simply removable that they can't resected away and and they will grow slowly but they grow. And in Russell's case over the years the tumors have grown to a point where his airway now is compromised which in him that means that when he lies flat he finds it difficult to breathe. He can choke. And in choking the tumors when he chokes the tumors are further engorged with blood and they can rupture and bleed. And so the bleeding that occurs then in the airway can make him choke further and he can you know conceivably choke to death. These tumors could rupture and he would die as a consequence of strangulation by his own. These tumors.

 

Aaron Freiwald: [00:39:34.41] And the nature of it is that these tumors they're they're pretty sensitive right it's not third the very susceptible to rupturing and so bleeding is fairly common as I read in the papers the case sometimes wakes up and he's got blood on his face because one of these tumors ruptured or he might have blood in his his mouth or in his throat from one of these rupturing depending on how he slept or how he ate or things like that.

 

Dr. Joel Zivot: [00:40:00.88] And it's not that he's not incapable of lying flat. He can but he has to focus all of his attention to breathing very carefully and a very specific sort of way. And it's very uncomfortable for him it's not the way that he normally chooses to sleep. And and so he has to mindfully apply himself to maintaining his airway patency in the circumstance of when his airways perpetually compromised. And and so I was asked to see Russell a few years ago now about this problem and I recognize that in the way that I understood the state's method of execution at the time that I was concerned that in so doing that these tumors were at a very high risk of rupturing and choking and that the kind of death in my opinion at the time that he would experience would be cruel beyond again what the eighth amendment prescribes. And again Russell has as an inmate a right to healthcare. And how on the further you know have considered the problem of how can one have their right to health care take place while they're being executed. And does the health care right is set aside. And if so for how long and if the execution fails is the right to healthcare restored. You can't kill people by giving them a series of sub-lethal injuries that over time would result in death.

 

Aaron Freiwald: [00:41:40.01] So let me understand that so far. Because I think there are some very particular reasons in this inmate's case why lethal injection poses some problems and question whether lethal injection to this individual would constitute more so than others. Cruel and unusual punishment. But I think you're making before we get to that point an even broader point which is given that the Supreme Court has already ruled that inmates are entitled have a constitutional right to healthcare. Does that fundamentally clash with the death penalty where you are in effect acting in the complete opposite interest from giving giving somebody health care you're taking away health care you're executing that individual so you're pointing to a fundamental contradiction in the way our law has evolved in terms of how we treat death row prisoners. Am I understanding that correctly.

 

Dr. Joel Zivot: [00:42:56.07] I think that's right. And there's a case in point to consider the execution of Clayton Lockett who was executed a few years ago in Oklahoma. This is an execution I think was widely reported because of the difficulties that ensued with establishing intravenous access. But in Mr. lockets case what's noteworthy is that on the day of his execution he did not want to come out of his cell. And so he was tasered in order to remove him. And in the ensuing struggle to get him out of his cell it was observed that he had sustained a laceration on his arm. And there is a report that this laceration was evaluated and a statement was made them to the effect of that the laceration did not need to be sutured. That was the opinion. And so one might find that incredible that just before executing someone someone would look at a laceration and first stitch and repair a laceration where moments later the person would be dead. And why would that take place. And I think that that's an acknowledgement of the state's obligation to provide health care at least all the way up until and perhaps during an execution. And if an execution method conflicts or creates an unusual situation because of co-existing health care there I think lies the central problem. And with Russell My view is that Russell will die more likely of choking that will be his method of death. He'll choke to death on his own blood and that because of these tumors because of the way that lethal injection is configured that would be his cause of death.

 

Aaron Freiwald: [00:44:56.67] In other words before the so-called medicines are able to take their effect on him and take his life before. Because that's a process that takes some amount of time before those effects can can have their ultimate result. You're saying he's going to experience complications from his medical condition that necessarily he won't receive treatment for because he's in the process of being executed and that.

 

Dr. Joel Zivot: [00:45:28.32] He will die. Yes that's it exactly that I think that he'll be aware that he's choking to death before he dies. And that I think exceeds I would say unambiguously the cruelty standard. And so in that way that isn't going to work.

 

Aaron Freiwald: [00:45:46.86] So and related to that I ask you this as a physician and again this this and this is a point that's explored in the American Medical Associations mission. You're pointing to this conflict between the obligation to not withhold medical treatment just because somebody is incarcerated on the one hand and administering what looks like medical treatment to execute somebody there being an inherent conflict but also isn't it necessary when we talk about lethal injection that that be administered by a health care professional in fact although they are not named by name. There is an anesthesiologist like yourself who must be part of the administering of these lethal drugs. And the Hippocratic Oath speaks to the question of a physician's ethical moral responsibility in terms of you know what your responsibilities are to not do harm to to someone under your care. So how does that how does that idea play into what we're talking about here.

 

Dr. Joel Zivot: [00:47:08.36] Well so much there. What you said here. Let's see if I can. Let me start by saying that I would say that death is not the treatment and that a death is a treatment we would be you know perhaps using it much more broadly some probably would use it more broadly. There's a choice between either curing you or killing you. Perhaps people would say well let's just kill you instead. Now I don't think the public thinks that that's a very good idea from their doctor. The second thing is is that secrecy laws in place in certain states make investigating who actually is doing what difficult states pass secrecy laws that obscure the identity of individuals and what their roles roles are. They take the position that you know where lethal injection is is permissible and so they should be able do whatever it needs to protect the individuals that practice it. The medical profession is supposed to stand apart and although the you know the state medical boards of course are created by legislative acts and the Medical Board cannot supersede the will of the legislature. But what it creates is this strange situation where the governor becomes the chief physician of a state. The governor then can begin to direct the way that medicine might be carried out and of course I would strongly object to that. I think also that with respect to whether a doctor has a role here. Let me just talk for a moment about the doctor patient relationship and what that means practically. So if I have a patient a person rather before me and we meet in a professional capacity that individual is not necessarily my patient. So we have a conversation and we if we agree that that's going to be what we're going to do we engage in a social in a contract and the contract that we engage in is the doctor patient relationship. And in that contract of course I'm allowed to do things to that actual I'm allowed to touch them you know examine them give them medication all sorts of things. They're my patients. But an inmate is not my patient. So that inmate does not choose me. And even though I'm standing there as a doctor in a lab coat that does not de facto make an inmate my patient. And so I would begin to say. By what right does the physician even have a role here at all. So is a physician saying Well look I am a physician and trained as a physician here I'm not really acting as a physician. I'm just acting as a person that knows these sorts of things. And so yes I'm doing technical things that physicians do but I'm not actually a physician.

 

Aaron Freiwald: [00:50:05.07] But can a physician ethically lay hands on a patient or an individual so to speak without that patient's agreement.

 

Dr. Joel Zivot: [00:50:17.05] Well I think that there are circumstances where say for example let's say that a person is injured in an accident and they're unconscious as a consequence of their their injury. Now they're brought to the emergency department.

 

Aaron Freiwald: [00:50:32.08] And they can't give now in that case.

 

Dr. Joel Zivot: [00:50:33.88] They can't give consent. But there is an assumption of consent based upon the relationship that's understood. And so I think that that's clear. Now later on if a person regained consciousness and regains agency they may at that point say I do not want to be treated. And in that case I would I would have to stop. But here an inmate is not ever that I don't see that there's an assumption that can be made that an inmate wants a doctor in this regard. Because again the doctor here is not there to treat. You know if a physician believes that there is a role there I would say that their role would be the opposite. They would try to you know it's been stated by others by other physicians that one way to think about this is that now execution is a lethal disease. And so now my role here is as a physician is to treat a lethal disease which this execution. I again think that that's an absurd argument because I would take the opposite position that if there's a lethal disease here my job would be to cure it not to prevent it not to enable it. So I think that physicians just because they're standing in the execution chamber have no physician patient right that there is no contract there. I will add that I actually can conceive of a circumstance where a physician might actually be engaged and that would be for example the execution should fail. If the execution fails the inmate is not killed not in the way that the execution is supposed to kill them suddenly the inmate now has an injured individual with the right to health care. And I would go so far to say that now physicians should step in and resuscitate the injured inmate and that's the role. Now there is a doctor patient relationship at that I see could take place.

 

Aaron Freiwald: [00:52:33.46] Well I don't and I don't want to get too far down this side alley that I'm about to point out here but there are some states now that allow physician assisted suicide and.

 

Dr. Joel Zivot: [00:52:44.18] Yes.

 

Aaron Freiwald: [00:52:44.79] I know that's that's maybe wildly off topic but.

 

Dr. Joel Zivot: [00:52:49.29] No I think people bring that up too. But let's just be clear that in that circumstance. First of all the individual there is choosing it. I suppose you could argue that an individual says I want to die. I need you to help me. Now I have my own views about physician assisted suicide. But at least the difference there I see is that one would hope that an individual with agency makes that choice.

 

Aaron Freiwald: [00:53:14.43] Right I think that states allow that are very very particular and rigorous regulations to make sure that the patient does actually express that agency is able to and is able to you know form be a form of consent. And so it is very very regulated in that regard. That's very different.

 

Dr. Joel Zivot: [00:53:35.66] Yeah. I mean we don't usually use inmates for as subjects in experiments anymore because we recognize you know the terrible conflict and the terrible strain on agency and so inmates cannot you know volunteer like the whole relationship between a patient and a physician is based upon this you know the principle that an individual is at liberty. And so if an individual liberty then they have a certain kind of way that they see the world in terms of what it is they want me to do. But an inmate who is not at liberty you know has a much harder way of expressing their position and even arguably that they would want to get well like if an inmate can be quote cured of a condition so they can then be executed if that's something that an individual might seek. That doesn't seem to follow as an assumption that an inmate may choose to stay ill if it means that they would not be executed. Again I'm not judging it one way or the other. I'm just explaining how complicated it is to create these sorts of relationship a doctor patient relationship with an incarcerated individual not at liberty facing their own death.

 

Aaron Freiwald: [00:54:57.13] All right so in this individual's case as you point out there is this very broad fundamental conflict between the requirement to give medical care and in a case of execution the ultimate withdrawing of care but in his particular case because of his medical condition he's also making an argument that because again he's not challenging the ultimate sentence. He's just saying give me gas don't give me a lethal injection. Why. Why is what's wrong with that. What's wrong with that argument here.

 

Dr. Joel Zivot: [00:55:38.53] Well so the the problem is that according to Glossip that in order for an as applied challenge here to prevail which is what Bucklew is making is that Glossip not only requires him to say that the particular method of execution is cruel but he has to name an alternative.

 

Aaron Freiwald: [00:55:58.57] And Glossip is another Supreme Court case. That's another Supreme Court case.

 

Dr. Joel Zivot: [00:56:02.05] Yes correct. Yeah Glossip V Gross. Yeah. So in Glossip that was decided in Glossip that an inmate has to name another method in order. So it has two things it has to prove that the method itself creates cruelty. And second that the inmate can name another method. And so what happened. You know where I was involved of course is that I said that this method of execution is cruel for these reasons but I am I have no way of ethically describing another method of execution that is less cruel that is beyond what I can do what I'm willing to do ethically I have no. Because now what you're asking me to do is design a method of killing which I cannot.

 

Aaron Freiwald: [00:56:54.15] Or endorse a method.

 

Dr. Joel Zivot: [00:56:55.05] I will not and cannot and will and I will not endorse or describe a method of execution. And so for in the case of Glossip the you know the court decided well that Glossip didn't meet his burden. He didn't name a second method of execution and therefore he loses. And so and so what the AMA does in their brief is they support my position that you can't ask a doctor to endorse a method of execution. You can only a doctor can only say that you know what they see before them will cause death in this way. And and so I'm in no position and I will not be in a position to name an alternative method. And if the law requires me to do so. Well I'm sorry I can't.

 

Aaron Freiwald: [00:57:44.1] And I haven't really seen in the papers that I read through a reason why the state of Missouri won't use gas other than. Because they do allow that under state law as an alternative. But they apparently don't have any protocols spelled out for how they would carry that out. I guess that's because they just even though they're authorized to use gas they just don't use it. They use lethal injection. They have a specific protocol for how to carry it out. Who's involved and all of that. So I guess they are sticking with lethal injection as their preferred method because as a practical matter it is their Yeah I can't Know I mean what's going on in their mind. I mean certain states actually have no other method. And so if an inmate brings an as applied challenge in some of these other states where there is no actual other method how would they create this sort of no defense that would satisfy Glossip. There is no other method.

 

Aaron Freiwald: [00:58:45.9] We had a little bit of technical problems there at the end of my conversation with doctors Zivot. We in that that last minute or so of our conversation. We simply wrapped up talked about this great argument that's coming on November 6 in the Supreme Court on this case. And that we're all going to be looking very closely to see how the Supreme Court handles this case. I want to thank Dr. Zivot very much for being on Good Law Bad Law. What a fascinating incredible far ranging conversation on moral and ethical issues on the death penalty. Really opened my mind and stretch my thinking and I think all of you I hope will also find it to be an engaging conversation. As always I'd appreciate feedback so don't hesitate to send us a comment and e-mail. You can go to the website. www.law-podcast.com and leave feedback there as well. Thanks for listening to this this episode of Good Law Bad Law talk to you soon.