An article published this week in PLoS Medicine discusses the ethics of research on US lethal objection protocols. The authors conclude:
While lethal injection and the death penalty present a host of ethical questions, the specific, pressing issue now faced by 36 US states, the federal government, and the 3,350 prisoners on death row is the movement to amend lethal injection protocols to comport with Eighth Amendment requirements and to minimize the potential for pain and suffering, in itself a commendable goal. As jurists demand lethal injection protocol changes, however, corrections officials, governors, and their medical collaborators are left in a legal and ethical quandary. In order to comply with the law and carry out their duties, they are employing the tools and methods of biomedical inquiry without its ethical safeguards. Given the current guidelines for human experimentation, it is difficult to conceive of circumstances in which lethal injection research activities could be carried out in a fashion consistent with these ethical norms, and yet those engaged in such research would seem to be required to do so.
This passage raises many questions. Is is the movement to amend lethal injection protocols really the pressing issue? Can a movement to execute prisoners more humanely really be commendable? But let’s focus on the authors main claim: namely that the states in question face a legal and ethical quandary since, (i) they are under "duties", as well as legal requirements, to execute more humanely, but (ii) they cannot do so without breaching the ethical and legal requirements.
The authors devote most of their attention to the second claim, (ii), but arguably (i) is more problematic.
Suppose, as I believe, that it is grossly unethical to execute convicts at all. From this starting point, it is tempting to say that whether states execute in a way that minimizes potential for pain and suffering is, unless the pain and suffering would be extreme, neither here nor there. However the states decide to execute, they will be guilty of gross wrongdoing. Saying that they are under a duty to do so in a humane fashion seems a bit like saying that the Nazi’s were under a duty to exterminate the Jews humanely. The moral difference between exectuing humanely or inhumanely pales in significance with the moral difference between executing or not.
Of course, the authors are not claiming that (a) states are duty-bound to execute humanely rather than not at all. Nor, I think, are they claiming that (b) states are duty-bound to execute humanely, period. Rather, they are claiming that (c) states are under a duty to execute humanely rather than inhumanely. This is a kind of conditional duty. If a state is going to either execute humanely, or execute inhumanely, then it should do the former. Claim (c) is certainly much more appealing than either (a) or (b). Nevetheless, it seems plausible that a state’s conditional duty to execute humanely rather than inhumanely is undermined by the fact that it could instead not execute at all.
But how can this be. How can the existence or strength of a duty to X rather than Y depend on the presence of an option to Z instead? Surely, the obligation should depend only on a comparison of X with Y.
Here is my suggestion: in most plausible situations, executing humanely rather than inhumanely would render execution more socially acceptable than it would otherwise be. It would make it easier for the death penalty states to present themselves as morally upstanding and concerned about humanity. If this is right, then those of us who believe that execution is grossly wrong may be justified in claiming that states should not execute humanely. In doing so, they may increase the acceptability of exection, and thus prolong the life of what remains an unethical practice. I’m not saying that this view is justified. But it seems to me that it might be.
Reference:
Koniaris LG, Goodman KW, Sugarman J, Ozomaro U, Sheldon J, et al. Ethical Implications of Modifying Lethal Injection Protocols. PLoS Medicine Vol. 5, No. 6, e126 doi:10.1371/journal.pmed.0050126
“It would make it easier for the death penalty states to present themselves as morally upstanding and concerned about humanity. If this is right, then those of us who believe that execution is grossly wrong may be justified in claiming that states should not execute humanely.”
I don’t see how the concluding claim can be justified without being able to prove that 1) the public would have a more positive outlook on current execution policy and that this would harm efforts to eliminate the death penalty and 2) without any change in the humaneness of execution, policy would evolve away from the use of the death penalty. In other words, if there is no chance for the abolishment of execution under the current inhumane standards, then the continued torture of inmates during execution serves no greater purpose. Your claim is complicated and very difficult to justify, whereas it seems there are much clearer ethical arguments for the more discrete topic with the smaller “moral difference” (e.g. it is good to reduce pain and a great amount of pain can be reduced by executing prisoners more humanely).
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