The American Journal of Bioethics

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Consequentialism and the Death Penalty

Dominic J. Wilkinson & Thomas Douglas

To cite this article: Dominic J. Wilkinson & Thomas Douglas (2008) Consequentialism and the
Death Penalty, The American Journal of Bioethics, 8:10, 56-58, DOI: 10.1080/15265160802478461

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The American Journal of Bioethics
important flipside to this. If co-victims’ suffering matters in
this way, this implies something implausible, namely that
when all else is equal except that there are no suffering co-
victims, that is determinative in making it permissible for a
physician to obstruct the execution.
It looks like the suffering of co-victims is not a fac-
tor in whether it is, or is not, wrong for physicians to
obstruct executions. Perhaps one qualification is needed,
though. It is highly plausible that whenever consequences
are grave enough, all kinds of things that would otherwise
be permissible (e.g. refraining from torture) are morally
wrong (Kagan 1998). So if millions of people will suffer
decades of negative feelings unless some war criminal is
executed, this might indeed make it wrong for a physi-
cian to get in the way of the execution of the war crimi-
nal. But peculiar cases like that aside, we have no reason
to think that physicians who obstruct executions are acting
immorally.

Consequentialism and the
Death Penalty
Dominic J. Wilkinson, Oxford Uehiro Centre for Practical Ethics,
University of Oxford
Thomas Douglas, Oxford Uehiro Centre for Practical Ethics,
University of Oxford
Arguments in defense of the death penalty typically fall
into one of two groups. Consequentialist arguments point
out beneficial effects of capital punishment, normally
focusing on deterrence (Sunstein et al. 2005), while non-
consequentialist arguments seek to justify execution inde-
pendently of its effects, for example, by appealing to the
concept of retribution (van den Haag 1986). Arguments
defending physician involvement in capital punishment can
be divided along similar lines. A consequentialist might
claim that physician involvement in capital punishment re-
duces the amount of suffering endured by prisoners, al-
lowing them a more humane death (Waisel 2007). A non-
consequentialist defense might, in contrast, maintain that
physicians should participate in capital punishment simply
because a legitimate state requires them to do so.
Michael Keane’s (2008) target article “The Ethical ’Ele-
phant’ in the Death Penalty ’Room’” should, we believe, be
read as an interesting new consequentialist defense of physi-
Address correspondence to Dominic J. Wilkinson, Oxford Uehiro Centre for Practical Ethics, Littlegate House, St Ebbes, Oxford OX1 1PT.
E-mail: dominic.wilkinson@gtc.ox.ac.uk
56 ajob
REFERENCES
Dworkin, G. 2002. Patients and prisoners: The ethics of legal injec-
tion. Analysis 62: 181–189.
Dworkin, G. 2003. Lethal injection, autonomy and the proper ends
of medicine: A response to David Silver. Bioethics 17: 212–214.
Friedman, A. 2008. Does the elephant belong in the room? American
Journal of Bioethics 8(10): 51–52.
Kagan, S.1998. Normative ethics. Boulder CO: Westview Press.
Keane, M. 2008. The ethical “elephant” in the death penalty “room.”
American Journal of Bioethics 8(10): 45–50.
Silver, D. 2003. Lethal injection, autonomy, and the proper ends of
medicine. Bioethics 17:205–211.
Varelius, J. 2007. Execution by lethal injection, euthanasia, organ
donation and the proper goals of medicine. Bioethics 21:140–149.
Wilkinson, D. and T. Douglas. 2008. Consequentialism and the
death penalty. American Journal of Bioethics 8(10): 56–58.
cian involvement in capital punishment. Keane identifies
one negative consequence of forestalling execution—the in-
creased suffering of victims’ families—and argues that this
may outweigh the harms that would result from proceeding
with execution.
Admittedly, Keane (2008) does not himself present his
argument as consequentialist. He appeals to the principle
of nonmaleficence, asking “As physicians do we not ‘do no
harm’?” (Keane 2008, 45; original emphasis). This principle’s
origins are obscure, and its place in medical ethics is debated
(Gillon 1986; Beauchamp and Childress 1994), but nonmalef-
icence is traditionally interpreted in a nonconsequentialist
way.
Nonmaleficence deviates from consequentialism in two
important respects. First, it is sensitive to the distinction
between acts and omissions. ‘Above all, do no harm’ is
normally interpreted as, ‘above all cause no harm,’ rather
than the more consequentialist ‘above all, allow no harm
October, Volume 8, Number 10, 2008

to exist.’ Second, nonmaleficence—at least as it is used in
medical ethics—is normally taken to generate a prima fa-
cie obligation not to cause harm to specific people (Friedman
2008). Thus, a physician complies with the principle when
she causes no harm to her patient, even if she thereby
fails to prevent a greater harm from befalling some third
party.
Keane (2008) eschews this traditional interpretation of
nonmaleficence. He argues in favor of physician involve-
ment in capital punishment by claiming that physician non-
involvement would result in psychological harms to the
families of crime (and in particular, murder) victims. Plainly,
however, in abstaining from the death penalty, physicians
would not breach the principle of nonmaleficence as tradi-
tionally understood.
Firstly, in abstaining from execution, the physician
would not cause harm to the victim’s family, he would
merely allow it to persist. Secondly, the harm would afflict
third parties, rather than the patient under the physician’s
care (the convicted prisoner).
Keane (2008) refers to a “risk benefit equation,” and
implies that potential harms to co-victims can be weighed
against other benefits and harms associated with execution.
The only formulation of the principle of nonmaleficence con-
sistent with such an approach is, we think, a consequential-
ist one; we must attribute to Keane the view that physicians
fall under a general requirement to minimize (or at least
reduce) the total amount of harm that exists in the world.
The thought is then that, by abstaining from capital pun-
ishment, physicians would breach this requirement since
the resulting harm to victims’ families would outweigh any
harms that would be caused by their involvement in capital
punishment.
Keane’s (2008) consequentialist calculus appears heav-
ily skewed, focusing on the harms to co-victims if execution
is prevented (for which he admits there is little evidence),
while ignoring the harms that proceeding with execution
imposes on prisoners’ families, prison staff, and the pris-
oner. However, we wish to focus here on a more basic worry
about Keane’s approach. Though we are sympathetic to con-
sequentialism in general, we believe that Keane’s interpreta-
tion of the principle of nonmaleficence leaves his argument
open to two serious objections.
First, it appears to rob his argument of any dialecti-
cal potency. The arguments against physician participation
in execution are typically nonconsequentialist and deonto-
logical in basis. Thus, it is argued that physician involve-
ment in execution is inconsistent with the proper goals of
medicine (Varelius 2007), breaches the Hippocratic oath, and
violates the principles of basic dignity and respect for the
patient (Clark 2006). It is also maintained that the princi-
ple of nonmaleficence (as conventionally understood) pro-
hibits physician collaboration in capital punishment (Far-
ber et al. 2000; Clark 2006). Keane’s argument seems mis-
directed, since the possibility of harms to other individ-
uals does not change the duties of a physician to his pa-
tient, a point that Friedman also makes in his commentary
October, Volume 8, Number 10, 2008
Elephant in the Room
(Friedman 2008). Keane (2008) would need to provide a
reason for rejecting or modifying the nonconsequentialist
principles that bar physicians from harming or killing their
patients.
Second, in arguing that the prevention of harm to third
parties may justify imposing harms—even death—on pa-
tients, Keane (2008) risks justifying too much. Consider the
case of a physician faced with a patient who is so hated
by his family that his continued survival causes them great
distress (call this case the hated patient). If Keane’s conse-
quentialist principle is correct, the physician might be jus-
tified in killing this patient in order to alleviate the harm
that his continued survival is causing to his family. In-
deed, the harms in play in this case seem very similar to
those that Keane considers important in the case of capital
punishment.
For another example, consider the transplant scenario,
a staple case from the ethics literature. In one version of
transplant, we are asked to imagine that a physician could
save five lives by killing one of her patients and distributing
the patient’s organs to five other people who are in need of
organ transplants. It seems clear in both the hated patient and
the transplant cases that the physician ought not to kill her
patient, yet Keane’s (2008) argument seems to imply that
(perhaps) she should.
Keane (2008) might respond by noting that he does not
actually claim that the harms suffered by victims’ families
justify execution. He merely claims that these harms must
be taken into account in the ethical discourse. Thus, in hated
patient and transplant, Keane need not advocate the killing
of the patient, he must simply claim that the benefits to the
family (in hated patient) and to the potential organ recipients
(in transplant) ought to be taken into account. But even this
seems very implausible. In considering whether the physi-
cian in transplant ought to kill his patient, should we even
take the needs of potential organ recipients into account?
Most would reject such an idea. Instead, it seems that there
are certain actions that physicians should never undertake,
even if they may in specific instances lead to the best overall
consequences.
Admittedly, there are some special cases in which physi-
cians may kill. For example, as Keane (2008) notes, it is often
held to be permissible for physicians to kill fetuses if that will
prevent harm to the mother. However there are significant
disanalogies between abortion and capital punishment. In
abortion, the party harmed by the physician is a fetus rather
than an adult person, and the person protected is the physi-
cian’s patient, rather than a third party.
The question of whether physician participation in the
death penalty is justified is often entwined with the question
of whether the death penalty is itself justified. If our previous
criticisms are sound, Keane’s (2008) argument fails to justify
physician participation in execution. The harms that Keane
identifies might, if substantiated, form one element in a con-
sequentialist defense of the death penalty itself. However
there are also strong consequence-based reasons to oppose
capital punishment. While debate over capital punishment
ajob 57
The American Journal of Bioethics
sometimes appears intractable, it does not follow, as Keane
appears to suggest, that it is merely a matter of personal
choice whether individuals support or oppose it. If that were
the case, there would be no point in ethical discourse or anal-
ysis at all.

REFERENCES
Beauchamp, T. L. and Childress, J. F. 1994. Principles of biomedical
ethics. Oxford, UK: Oxford University Press.
Clark, P. A. 2006. Physician participation in executions: Care giver
or executioner? Journal of Law, Medicine & Ethics 34(1): 95–104.
Farber, N., Davis, E. B. Weiner, J. et al. 2000. Physicians’ atti-
tudes about involvement in lethal injection for capital punishment.
Archives of Internal Medicine 160(19): 2912–2916.
Lethal Injections: Legal Extensions
and Implications of “Do No Harm’’
Courtenay R. Bruce, Cleveland Clinic
Abortion, sterilization, and futility are just a few examples of
the ethically complex cases that the United States Supreme
Court has addressed. Perhaps recognizing its institutional
inability to assess bioethical matters, the Supreme Court
typically resolves such cases on procedural grounds. But
where, as in the case of physicians’ assisting lethal injec-
tions, the state laws remains variable and the Constitutional
bases seem attenuated, the Supreme Court has no proce-
dural mechanisms with which to create law of precedential
value (Ewertt 2005).
In the “Ethical Elephant in the ‘Death’ Penalty ‘Room,”’
Keane (2008) emphasizes the harm posed to family mem-
bers of the victim, namely co-victims. In doing so, he relies
heavily upon two Fourth Amendment cases, a bit remark-
able given that the Fourth Amendment is typically confined
to search and seizure cases, and is not historically cited with
regard to a physician’s assisting lethal injections. In addi-
tion to elaborating upon the dubious legal bases provided
in article, this commentary will address the questionable use
of the harm analyses, as well discuss the practical and con-
ceptual difficulties in extending the physician obligation to
the co-victims.
Keane (2008) uses the Scott case (2007) to provide a basis
for extending the “duty to do no harm” to the co-victims.
Paradoxically, if the case were even applicable in the lethal
Address correspondence to Courtenay R. Bruce, J.D., Cleveland Clinic, 9500 Euclid Avenue, JJ60 Cleveland, OH 44195. E-mail:
crbruce1@gmail.com
58 ajob
Friedman, A. 2008. Does the elephant even belong in the room?
American Journal of Bioethics 8(10): 51–52.
Gillon, R. 1986. Philosophical medical ethics. Chichester, UK: Wiley.
Keane, M. (2008). The ethical “elephant” in the death penalty
“room.” American Journal of Bioethics 8(10): 45–50.
Sunstein, C. R., and Vermeule, A. 2005. Is capital punishment
morally required? Acts omissions, and life-life tradeoffs. Stanford
Law Review 58(3): 703–750.
van den Haag, E. 1986. The ultimate punishment: A defense. Har-
vard Law Review 99(7): 1662–1669.
Varelius, J. 2007. Execution by lethal injection, euthanasia, organ-
donation and the proper goals of medicine. Bioethics 21(3): 140–9.
Waisel, D. 2007. Physician participation in capital punishment.
Mayo Clinic Proceedings 82(9): 1073–1082.
injection context, the case provides more of a rationale to
extend the physician obligation to the collective society, a
point seemingly antithetical to the author’s thesis. In the
case referred to, a police officer engaged in a high-speed
chase with a fleeing felon. The police officer, in an attempt
to stop the chase, “bumped” the car the felon was driv-
ing, resulting in his injury. The Court ruled that the police
officer acted reasonably and in accordance with the state
procedures. The Court further held that, where a “state ac-
tor” (to be discussed later in text) violates the Constitution,
the plaintiff must demonstrate that the law, at the time of
the violation, was clearly established (Blum 2007). In the
progeny of this case, the Court further articulated what con-
stitutes “clearly established.” Cleary established means that
there must be general, defined principles as applied to the
novel facts presented in the case. Therefore, there must be
general principles elucidated from the law indicating that
the state actor has acted contrary to what the law requires.
Scott and the other cases cited by the author are of lim-
ited precedential value in the context of physicians’ assisting
lethal injections precisely because there is no clearly estab-
lished law on the matter. It is, as discussed above, an area of
significant state law variability with little guidance provided
in federal law. To constitute “clearly established,” a line of
clearly articulated, well-heeded cases or statutes need to
October, Volume 8, Number 10, 2008