The Implications of Death Penalty Law for Human Euthanasia

By SHERRY F. COLB

Wednesday, Apr. 16, 2008

In my last column, I analyzed the question of what relevance the humane killing of pet animals might have for assessing the constitutionality of execution by lethal injection - the method of capital punishment now facing a challenge before the U.S. Supreme Court in Baze v. Rees.

In this column, I ask, and suggest answers to, a somewhat different question.

The U.S. Constitution requires that if we impose the death penalty on a convicted criminal, we do so in a manner that is humane and that does not cause unnecessary pain or torment. On that test, the current administration of lethal injection may prove to be unconstitutional. Might this framework also have implications for those who are terminally ill and seek physician assistance in dying a humane death?

Existing Constitutional Doctrine: Differentiating the Death Penalty from Euthanasia

One distinction between the death penalty and euthanasia is that the person who dies in pain in the former case is experiencing suffering directly at the hands of the state, while the person in the latter case is not. The Constitution and the Bill of Rights ordinarily only protect individuals from the state, thus supplying what are called "negative rights" against governmental oppression.

In the context of capital punishment, the state is killing a person officially and deliberately as a penalty for an offense. Such conduct plainly triggers the Eighth Amendment ban against cruel and unusual punishments. A person dying of a terminal illness, by contrast, is not suffering from that illness through the deliberate design of the state, and there is certainly no punitive intent. The state can therefore leave the person alone and simultaneously refuse to facilitate a humane death. That simply is not true during an execution, where the pain that a condemned prisoner suffers without palliation comes directly from the government. It is the state that inflicts any "cruelty" (in potential violation of the Constitution's ban against "cruel and unusual punishments") during an execution.

These distinctions between the death penalty and euthanasia may not, however, be quite as clear and unproblematic as they initially appear. First, the terminally ill individual does not ask the state to assist in her suicide but only to refrain from prosecuting the doctor who willingly does so. Furthermore, the Eighth Amendment itself applies not only to the official sentence of a convict (death by lethal injection, for example) but also to the convict's "private" experiences in prison, to the extent that the government is conscious of such experiences and does nothing to protect him from them. This is true even if the experiences do not involve state personnel. Indeed, the Supreme Court has held that tolerating private violence (such as rape) within a prison (by one inmate against another) can represent "state action," attributable to the government and therefore implicating the Eighth Amendment, when the government officials in charge behave in a manner exhibiting "deliberate indifference" to that violence. To put the matter differently, the state is responsible for harms that occur within a prison if its officials are aware of the high risk of such harms and fail to protect inmates from it.

The reason that the state can be said to bear responsibility for prison violence, even when it is not guards but inmates who commit that violence, is that a prison is a total institution, in which people must rely completely on the state for protection. A prisoner cannot, even in theory, opt for a private alternative (such as a security guard or a locked residence). A terminal patient in a hospital is another matter.

Denying Humane Death to the Suffering Terminally Ill: Where's the State Action?

Some (though by no means all) terminally ill patients have expressed the desire for a quick and painless death in place of the protracted alternative of waiting out their remaining days until their illnesses kill them. Responding to that desire, large numbers of doctors around the world have admittedly assisted patients in ending their own lives. In the United States, however, outside the state of Oregon (which legalized the practice in 1997), a physician's assistance in a patient's suicide remains a crime.

As a result of the relevant criminal laws, which deter most U.S. doctors from acting upon terminally-ill patients' wishes, many terminal patients who would prefer to die on their own terms must instead suffer. Indeed, in the case of those for whom an amount of pain medicine sufficient to relieve their suffering would be lethal, physicians - out of a legitimate fear of criminal prosecution - often allow the suffering to continue, only partially and inadequately treated.

What does the government have to do with any of this? To some degree, the government stands outside of the equation - when a person suffers and no one helps him, this tragic situation cannot be attributed to the state (even if the state could but does not do something to help the patient). Though some believe that the Constitution protects a right to adequate health care, the Supreme Court has long rejected this robust vision of constitutional entitlement in favor of what are essentially negative rights against state intervention. But when private people attempt to end a patient's suffering at the patient's behest, and the government prosecutes those people, it is doing more than simply standing by in the face of suffering.

The Supreme Court has not, moreover, approved of total state freedom in regulating the doctor/patient relationship. In Cruzan v. Director, Missouri Dept. of Health, the Court embraced the view that every individual has a Due Process right to refuse medical treatment. The Court also assumed, without deciding, that this right extends to rejecting the provision of nutrition and hydration through a feeding tube and/or IV. By implication, a court would have to order a doctor who failed to respect this right to leave the patient alone (or to remove the offending tube or IV). The view (expressed in dicta) that an individual does in fact possess such a constitutional right reappears in both Planned Parenthood v. Casey and Washington v. Glucksberg, the latter of which rejected the claimed right to physician-assisted suicide but distinguished between that and a right to refuse nutrition and hydration.

If we combine the (likely) constitutional right to refuse nutrition and hydration with the absence of a right to a willing physician's assistance in a terminal patient's suicide, the result is the following state of affairs: A terminal patient who no longer wishes to live has a protected right to starve to death or to die of thirst, but not to die of a much quicker and more humane lethal dose of narcotics or anesthesia. The state accordingly plays an important role - one that is mediated by the U.S. Supreme Court - in setting out a particular, limited set of options before the patient who wishes to die.

So what? Isn't it better - from the point of view of someone who believes in a right to die - to say that a patient has the right to refuse nutrition and hydration than it is to say that the patient has no right to die at all? Perhaps, but the question is not one of "better" versus "worse." Rather, it is one of whether the state, on the one hand, has no mandate at all with respect to terminal patients - a position arguably consistent with a "negative rights only" perspective on constitutional rights - or whether, on the other hand, the state is permitted to block the decision to end life in one manner (through a humane lethal dose of pain medicine) while the state is simultaneously prohibited from blocking the decision to end life in another manner (through starvation or thirst).

Such selective intervention and entanglement in an individual's autonomy over the decision to end his life makes the state a more active participant in that decision. The argument that the suffering of the terminally ill results from state action and intervention thus becomes even more compelling when placed in the context of the holding in Glucksberg.

The Lethal Injection Analogy

In discussing animal euthanasia, the view that I described and criticized in my earlier column is this one: If we refrain from using the lethal-injection three-drug cocktail to kill "mere" animals, then it should follow a fortiori that we must refrain from doing so when the suffering of human beings is involved. As I described in detail there, we do not in fact treat animals with kindness or protect them from suffering unless they are loved animals, a category that takes them outside of the usual (and shockingly inhumane) treatment of non-human sentient creatures, and one that makes "beloved friend" versus "convicted murderer" the more salient comparison.

In the area of human end-of-life choice, however, the same argument that fails in connection with animal euthanasia becomes quite powerful. That is, our laws, quite properly, limit the degree of suffering that a condemned prisoner - a convicted killer - may experience in the process of dying a death in which the state is a direct participant. If the three-drug cocktail is found frequently to cause terrible pain (as the evidence suggests it does), then current lethal injection protocols violate the Eighth Amendment and must be replaced with a more humane alternative. Given that reality, it might rightly appear shocking that we tolerate the consignment of innocent terminal patients - our nation's sick people - to a set of inhumane options. Their gratuitous suffering is incomprehensible, a fact that is sharply highlighted by the concern that our constitutional doctrine properly exhibits for the right of capital convicts to a humane death. It is presently a bitter irony in constitutional doctrine that a prisoner convicted of committing murder is entitled to a humane death, while a suffering terminally ill patient who has done no wrong, is not.


Sherry F. Colb, a FindLaw columnist, is currently a Visiting Professor at Columbia Law School and will be joining the Cornell Law School faculty in the fall. Her book, When Sex Counts: Making Babies and Making Law, is available on Amazon.

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