A new Louisiana capital-punishment bill would fundamentally alter physician licensing

After the recent nitrogen gas execution in Alabama of Kenneth Smith, state Attorney General Steve Marshall said that nitrogen gas “was intended to be — and has now proved to be — an effective and humane method of execution.”

It is hard to imagine a statement so obviously disconnected from facts. Eyewitness accounts described Smith’s death as a harrowing experience of dry heaving, thrashing, straining against leather straps, seizures, and terror. It took about a half-hour for Smith to die, although the state had previously predicted it would be over in minutes.

Undaunted by the striking difference of account, lawmakers in both Kansas and Louisiana recently introduced state House bills that will add death by hypoxia — the forced inspiration of a gas depleted in oxygen in order to cause death — as a method of execution. In addition to the obvious implications here, there is one dynamic that might be easy to overlook: Louisiana’s bill would effectively wrest control of physician conduct from medical boards. The result is that the chief physician of a state becomes the governor.

In the battle against illness, physicians are non-combatants. We don’t need our patients to pass a character test to receive treatment. To be honest, we are not particularly skilled at such tests. No matter. Once the doctor-patient relationship is established, we are duty bound to do our best. A prisoner must be punished without cruelty. The 8th Amendment of the U.S. Constitution states this in the plainest language. The state, not a physician, is responsible to find a method of punishment that is not cruel. Prisoners facing execution are not patients by dint of a physician standing by.

The Kansas House bill adding execution by hypoxia as an alternative to lethal injection did not advance, but that does not mean the state will not try again. Mississippi and Oklahoma have also already authorized death by nitrogen, and Nebraska is considering it. All of this is due to the fact that it is increasingly difficult for states to access the drugs used in lethal injection.

But Louisiana’s approach is different. The Louisiana House Committee on the Administration of Criminal Justice unanimously approved the bill on Tuesday, making it one step closer to becoming law.

I have been involved in the battle against lethal injection for more than 10 years. It is a gross impersonation of a medical act — it takes drugs intended to cure and repurposes them as poison. Sometimes chemical paralysis is added just to be sure the outward appearance is mild. My review of over 250 autopsies of prisoners executed by lethal injection found evidence of pulmonary edema approximately 80% of the time. Medical practice permits some pain on the pathway to beneficence. Punishment has no such provision. To be lawful, it can never exceed the boundaries of the sentence.

The Kansas House bill included the statement “by hypoxia administered in such a way to cause death in a swift and humane manner.” It made no mention of what gas would replace oxygen to create hypoxia. In recent public testimony, Kansas state Attorney General Kris Kobach engaged in some chemist cosplay and informed the committee that Kansas may use helium if nitrogen is not available. The Louisiana House bill does refer to “nitrogen hypoxia” but does not define exactly what that is or how it would be carried out. Lethal injection has always tried to mollify the public by using scientific terms and products for punishment. The argument is to send a reassuring message to the public that the cool and careful hand of medical science is used to make punishment sterile. Add in a few complicit physicians loitering nearby in lab coats and the illusion is complete.

While merely adding execution death by hypoxia is troubling, the Louisiana House bill goes further. It says that a physician need not be present in an execution, as is required in some states. But if one is, their identity is forever protected from anyone, including a medical board, from knowing. The specific language of the Louisiana bill states:

“Information or records that identify or could reasonably lead to the identification of any person who participates in or performs ancillary functions in the execution process shall not be admissible as evidence nor discoverable in any proceeding before any court, tribunal, board, agency, legislative committee, or person.

“Whoever violates the provisions … of this Subsection shall be imprisoned for not more than two years and fined not more than fifty thousand dollars.

“Any person and his immediate family or an entity whose identity is disclosed in violation … of this Subsection shall have a civil cause of action against the person who disclosed the information and may recover actual damages and, upon a showing of a willful violation…of this Subsection, may recover punitive damages.”

To be clear, this bill makes the release of any information that could be used to identify a participant a criminal offense with a fine of up to $50,000 and a two-year prison term. Arguably, actively seeking the identity of a participant may constitute a “willful violation,” making that person additionally liable for actual and punitive damages. This approach effectively undermines how medicine works in the U.S. What a licensed physician does with the tools and knowledge of medicine is a matter of interest for any medical board because they owe a duty to protect the public.

State medical boards are created through a legislative medical practice act. In so doing, the legislators acknowledge that they are not experts in medical practice and empower the board to oversee medical practice. It is in the public interest to know that a practicing physician is granted a license. That license requires the doctor to practice according to a prevailing bioethical standard. If they breach standard practice and harm results, the public knows the physician risks a loss of licensure and could face further legal consequences.

Louisiana wants to set all this aside because they think they need what a doctor knows about how to kill. Physician practice freed from license-regulated bioethical oversight combined with the protection of secrecy allows a doctor to turn healing into killing, simply at the state’s request, consequence free.

Death by “nitrogen hypoxia,” or any other hypoxia, is the gaseous equivalent of the knee on the neck. Supporters of the Louisiana bill intend to implement it without any professional oversight. Other states may follow suit. This makes a mockery of the purpose of a medical board convened by a medical practice act. Blocking the medical board from physician regulation is the worst effrontery to medical professionalism, puts the public at unacceptable risk, and might be a place for bad physician actors to be shrouded and protected.

Joel Zivot is a practicing clinician and associate professor of anesthesiology and surgery at Emory University School of Medicine and a senior fellow in the Emory Center for Ethics. He is a widely quoted expert in his opposition to the use of medicine in capital punishment. He is also a frequently published opinion writer on the intersection of law, medicine, bioethics, and policy.