By Chip Brownlee
Alabama Political Reporter
MONTGOMERY—Harvard College medical ethicists filed a brief this month with the US Court of Appeals for the Eleventh Circuit outlining an argument in support of Thomas Arthur, a 74-year-old death row inmate facing execution at Holman Correctional Facility Nov. 3.
As part of an appeal, the Court requested Arthur and his counsel submit a “feasible and readily implemented” method of execution as an alternative to the three-drug cocktail Alabama uses for its lethal injections.
Arthur’s attorney have argued that the State’s proposed regimen used for its lethal injection method of execution is unconstitutional under the Eighth Amendment, which prohibits cruel and unusual punishments.
Arthur’s attorneys argue the current drug regimen, Midazolam Hydrochloride, does not provide effective sedation to prevent him from feeling the agonizing pain of the two additional life-taking drugs that follow it in the execution.
The effectiveness of Midazolam has been hotly debated, culminating in a US Supreme Court decision last year, which upheld the use of the drug in a 5-4 decision. However, the cocktail would likely induce a painful heart attack because Arthur suffers from old age and a preexisting cardiac condition, his attorney have argued.
They say his health conditions make his case different from previous cases.
Arthur’s counsel refused to provide the alternative method requested by the Court, instead submitting the brief by the Harvard medical professionals.
The four medical professionals and ethicists who provided testimony in the brief said medical professionals are the most qualified experts capable of offering the type of proposal requested by the Court. However, most practitioners are prohibited from offering such advice under almost all medical codes of ethics.
“This Court should take into account the very real ethical dilemmas that orders like the one issued below will place on physicians and other medical professionals who act as expert witnesses in lethal injection cases,” the brief reads. “Such orders inherently would require any medical professional serving as an expert witness to resolve difficult ethical issues surrounding what testimony the expert could appropriately provide.”
Most medical professionals would refuse to offer such advice, according to the ethicists, leaving Arthur with nowhere to turn for advice on alternative forms of execution or an alternative combination of drugs. Without experts, the attorney said, Arthur couldn’t submit the alternative proposal.
In the past, Arthur suggested a firing squad or another lethal execution drug as alternatives. But the federal judge hearing the case at the time rejected both because he said Arthur had not identified a source for the alternative drug regimen and a firing squad isn’t named as a form of execution in Alabama laws.
Following the ruling, Arthur and his attorney filed an appeal with the 11th Circuit.
In addition, the brief argues that participation in an execution at all violates the physician’s Hippocratic Oath, citing the American Medical Association’s Judicial Council, which recommended the association prohibit physicians from participating in executions.
Participating in the taking of a life violates on of the most fundamental of concepts in all of medical ethics, “primum non nocere” or “above all, do no harm,” they said. They argued participating in an execution does not encompass medical virtues, no matter what an individual’s opinion on the controversial death penalty is.
“Debate over capital punishment has occurred for centuries and remains a volatile social, political and legal issue,” according to an AMA statement cited in the brief. “An individual’s opinion on capital punishment is the personal moral decision of the individual. However, as a member of a profession dedicated to preserving life when there is hope of doing so, a physician must not participate in a legally authorized execution.”
Arthur was convicted more than 30 years ago for the murder-for-hire of Troy Wicker, a Muscle Shoals, Alabama, businessman. He has maintained his innocence. In 2008, another convict, Bobby Ray Gilbert, came forward and confessed to the same murder, but a judge in 2009 ruled Gilbert lied after DNA evidence failed to link him to the crime scene.
A court later refused to allow Arthur, who was convicted and moved to death row in 1983, his own DNA to prove his innocence. According to previous Supreme Court rulings, the right to DNA testing to prove innocence doesn’t exist.
But Arthur isn’t exactly a perfect plaintiff either. He escaped prison in 1986 before his second trial by shooting a prison correctional officer. And Wicker’s death wasn’t his first murder. In 1977, Arthur was convicted of killing Eloise Bray West, but was released from prison on a work release program.
In January, Christopher Brooks, a 43-year-old convicted murderer and rapist, became the most recent inmate executed in Alabama after a two-year hiatus in executions thanks to the rising scarcity of Midazolam and court litigation.
Brooks was the first inmate in Alabama to be sedated with 500 milligrams of Midazolam and executed with two other drugs in the new three-drug regimen, which is the same regimen the State has proposed to use for Arthur’s execution scheduled for November.
“It went exactly as I expected it to,” Alabama Prisons Commissioner Jeff Dunn said after the January execution.
Seven men have been executed by the State of Alabama since Gov. Robert Bentley’s term began in January 2011. Arthur, if the courts do not grant a reprieve, will become the eighth execution under Bentley’s administration and the 39th since January 2000.
The ethicists, lawyers and medical professionals who contributed to the brief are scholars at Harvard Medical School, the Harvard Petrie-Flom Center for Health Law Policy, Biotechnology and Bioethics at Harvard Law School and other institutions.
Read the brief: Arthur Amicus Brief As Filed by Court