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Current & Recent Research at Penn Law

File: [View Document]
Author: Sawicki, Nadia N.
Citation: Doctors, Discipline, and the Death Penalty: Professional Implications of Safe Harbor and Exclusionary Policies, 27 Yale L. & Policy Rev. __ (2008)
Date Published: 2008
Date Posted: 12/12/2007
Subjects: Government and Legislation
Law and Criminal Justice
Law and Health Sciences
Law and Regulatory Systems
Keywords: Legislation
Professional Ethics
Administrative Law
Constitutional Law
Criminal Law and Procedure
Health Law and Policy
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.

As a matter of policy, safe harbors cannot be defended by reference to the three traditional justifications for medical regulation -- they are not necessary to keep the profession from exceeding the scope of its delegated powers; they do not promote the traditional goals of medical regulation; and they do not satisfy the criteria for promotion of important state goals unrelated to medicine. This paper posits that safe harbors and other limitations on board autonomy, if not adequately justified, are likely to result in a weakening of the public’s confidence in the authority and independence of the medical profession. This loss of public trust, will, in turn, have a corrosive effect on medicine’s ability to promote patient interests and public health, as well as on its ability to support other social goals.