An ethical "line in the sand"

Dr. Marc Stern drew an ethical "line in the sand" prohibiting all 700 health-care staff members in Washington's prisons from participating in the death penalty. Little did Stern know how involved his staffers were in the planning for a lethal injection.

About two years ago, Dr. Marc Stern tripped over a jarring line in Washington's death-penalty policy: As head doctor for the state's 16,000 prison inmates, he had to ensure the state's lethal-injection table was in working order before each execution.

"This is ludicrous," Stern, then medical director for the Department of Corrections (DOC), remembers telling his boss. "I can't do this. I won't do this. I'm not allowed to do this."

That was the beginning of Stern's unlikely evolution into a hero of the anti-death-penalty movement. He quit the DOC late last year on the eve of a scheduled execution, formally accused the DOC of illegally obtaining the lethal-injection drugs and, last month, was a star witness for death-row inmates challenging their executions in court. He is heralded on blogs and recently received a letter from Denmark's Amnesty International praising his "brave, difficult and recommendable act" of quitting.

Stern says he opposes the death penalty but insists he is no zealot for the condemned. Instead, he felt he had to quit when he found out some of his 700 health-care staffers had become involved in preparations for an execution.

To Stern, medical-ethics policies as far back as the 4th century B.C. — Hippocrates' admonition to do no harm — apply to his actions and to his supervision. If he couldn't play a role, neither could his staff. And he wasn't willing to suggest alternatives, because that would, indirectly, assist in the execution.

But little did Stern know at the time, his staff was far more involved than he imagined, according to depositions taken as part of a pending lawsuit filed by two condemned inmates challenging the constitutionality of the lethal-injection procedure.

And with three potential executions within the next year, the question of medical ethics and executions is likely to grow.

States are "in a bind"

Stern, a trim 55-year-old, gravitated to prison health care after studying at medical schools in Belgium and New York and working at clinics for veterans and the poor.

It may seem naive, he now admits, but he did not ask about the death penalty when he was recruited from New York's prison system in 2002 to overhaul Washington's prison health-care system.

"It simply wasn't on my radar," Stern said. "There were a lot more important issues on my doorstep."

Washington last executed an inmate in 2001, using a three-drug lethal-injection cocktail used by about 30 states. Eight men currently are on death row in the state.

Stern, who earned $173,000 a year, soon was handed a $125 million-a-year budget and hire-and-fire authority. He became a nationally known expert, giving ethics lectures to peers.

The death penalty was a distant issue for Stern until 2007, when he saw a draft of the lethal-injection policy requiring him to inspect the execution table.

The American Medical Association (AMA), like other medical groups, admonishes physicians from any direct role with lethal injections, including "an action which would assist, supervise, or contribute to the ability of another individual to directly cause the death of the condemned."

Richard Deiter, executive director of the Death Penalty Information Center, said he knows of a handful of physicians willing to act as roving consultants for lethal injections, but relatively little is known about the involvement of medical staff because of secrecy surrounding executions.

"States are in a bind because they are bound to avoid cruel or unnecessarily painful punishment, and this is a medical procedure, so doing all you can means usually having a doctor involved," Deiter said. "The best course of action is one that is ethically compromised or questionable [for physicians]."

For Stern, the AMA's code was clear. All medical procedures in a prison — including insertion of an IV for lethal injection — ultimately fell on his shoulders as head of medical training. "If a nurse put in an IV and missed, and it turned out the chain of training was bad, that's my responsibility," Stern said.

After explaining to his supervisors about the strength of his objections, Stern felt reassured. "I thought we'd fixed the problem," he said last week.

Crossing "the line"

But last fall in Walla Walla, as the state prepared for its first execution in eight years, prison medical staff were busy helping with the plans, according to the depositions.

A physician assistant checked the veins of the condemned, Darold Stenson, marking a chart with red pen where an IV could be inserted. A pharmacist ordered the lethal cocktail and gave the drugs to the prison superintendent to store in his office refrigerator.

The prison's medical director, a nurse, attended at least eight practice sessions with the four-member lethal-injection team, including some held on the kitchen countertop at a team member's home. One member was recruited out of retirement for $3,500. It is unclear whether any of the four members worked for Stern because their identities are secret, but Sherilyn Peterson, a Seattle attorney presenting Stenson, believes some must have. "I'd think they have to have been because the DOC policy requires a minimum [medical] qualification," she said.

It is clear non-DOC health-care staff were involved. A former Washington state toxicologist consulted on appropriate dosages. An Oregon doctor has certified the death — a job the AMA specifically bans — for the past four Washington executions, dating to 1993, according to the depositions.

Stern said he knew none of this until recently but does not believe his staff intentionally ignored his orders. "I think [DOC's Olympia headquarters] believed the health-care staff were following the line in the sand I laid out," he said. He now believes prison administrators in Walla Walla, who were enlisting the health-care staff, never heard of his objections.

But Scott Blonien, a DOC administrator involved in the planning, said he didn't know of Stern's line in the sand. Nor was such a rule appropriate, Blonien said.

"It would have been just as inappropriate as putting in the policy, 'You shall participate,' " Blonien said. "What [Stern] was trying to do was inject his own personal beliefs on the persons below him in the chain of command."

"What else is going on?"

A few weeks before Stenson's scheduled Dec. 3, 2008, execution, Stern asked DOC Secretary Eldon Vail if he could send a memo to penitentiary staff reaffirming his "line in the sand," and instructing them to continue treating Stenson as a typical inmate. No need to send a memo about his ethical objections, Stern remembers Vail saying.

About a week later, Stern first learned staff had crossed his line. A pharmacy staffer asked Stern how to account for unusual drug requisitions from Walla Walla. Stern recognized the lethal-injection cocktail instantly.

Stern first wanted the drugs returned, and then wanted to investigate for other involvement. The drug requisition, he believed, may have been illegal under state and federal laws because they had not been ordered from prescription and had been stored improperly.

"I thought, 'My God, what else is going on? What nurse may have been asked to look at veins?' "

Stern went to his Tumwater home over the weekend before Thanksgiving, hoping the problem still could be fixed. But when he got back to work, he was told the drugs would not be returned. His other objections were moot.

After he quit, he filed complaints to the state Department of Health and the Drug Enforcement Administration about the drugs. Both complaints were closed without any consequences.

"A moral-code issue"

In the days before he resigned in November, Stern consulted with Dr. Robert Greifinger, former medical director of New York's prison system who quit in 1995 after being ordered to be involved in an execution. "It is a moral-code issue," Greifinger said. "It has nothing to do with execution as a means of punishment. It's the physician role."

Since he quit, Stern has taught at the University of Washington and worked as a consultant on a project to improve medical-records access in the state's jails.

Stenson's execution — and two others scheduled for last March — were all stayed, pending various further court actions. In March, the four-member execution team quit for fear their identities would be disclosed in a pending lawsuit.

Blonien, the DOC administrator, said it is possible medical staff from outside DOC would be hired for lethal injections, but, with no executions imminent, that decision has not been made.

But the issue that made Stern quit remains. A doctor who assumed some of his duties has lodged similar objections about involvement of DOC staff. No changes have been made to the state execution policy, but Vail, the DOC secretary, took the issue "under advisement," according to a spokeswoman.

Stern said he is willing to discuss his resignation with medical-ethics groups, but he has avoided anti-death-penalty groups.

"You only have a limited amount of yourself to go around and to devote yourself to," he said. "For me, I don't think that's in the death penalty."

Pending executions

Execution dates for three of Washington's eight inmates on death row have been set, then stayed by continuing court action.

Darold R. Stenson: Convicted in Clallam County in 1994 for murders of wife, Denise Stenson, and business partner, Frank Hoerner. Execution set for Dec. 3, 2008; stayed by Clallam County Superior Court pending review of possible new evidence.

Cal C. Brown: Convicted in King County in 1993 for murder of Holly Washa. Execution set for March 13, 2009; stayed by the Washington Supreme Court pending a civil lawsuit challenging the constitutionality of the lethal-injection protocol.

Dwayne Woods: Convicted in Spokane County in 1997 for deaths of Telisha Shaver and Jade Moore. Execution set for March 20, 2009; stayed by U.S. District Court pending an appeal.

Source: Washington State Attorney General

Source for both: The Seattle Times, June 23, 2009