JURIST Guest Columnist Tasha Russell discusses ethical issues that arise from the death penalty plan in Arizona, which attempts to put the onus on the lawyer’s of convicted criminals awaiting the death penalty to provide the drugs to be used in their client’s execution…

Jjust recently, it has come to light that the State of Arizona has put forward a new death penalty plan given the lack of availability of anesthetics and sedatives previously used in the death chamber, namely, Pentobarbital and Sodium Pentothal. The plan being put forward is a provision that puts the onus on a death row inmates’ lawyer to provide the drugs so the State can follow through with the planned death penalty. To say that this plan throws some ethical issues in the face of those lawyers would be a great understatement.

One of the main duties of any lawyer is to act in the clients’ best interests and in accordance with their instructions. Here we have a situation where Arizona is attempting to put a duty on a lawyer to act in the state’s best interests and per their instructions rather than the clients. This flies in the face of the duties of a lawyer to their client. This is before we even take into account the fact that it is against Federal law in the US to import these drugs. It should be noted that a lawyer is bound to not assist or take part in criminal conduct with their client but here, Arizona expects a lawyer to commit a criminal act for the State so that they can execute their client? One could say that the plan is rather nonsensical when compared with a lawyers professional responsibilities. Not to mention the fact that committing a criminal act can be seen to indicate that the lawyer is not fit to practice and can amount to professional misconduct.

In addition to working in their clients best interests, it is also a professional conduct rule that lawyers must work with diligence in representing their client and with dedication and commitment to the interests of the client. I don’t think anyone could argue that assisting the state to execute your client, assuming that it is against their wishes of course, is hardly working in an effort to seek the best results for their client with the dedication and commitment that a lawyer is bound to put into their work.

We could also turn our mind to the matter of professional ethics which stipulates that a lawyer must act independently and impartially in providing legal services but the plan being put forward is essentially asking the lawyer to be a slave to the aims of government and hammer their client to the stake, so to speak. Further, when acting with this independence the lawyer is given the right to refer to considerations such as moral, social and political factors in addition to matters of law. So in the few US jurisdictions that allow voluntary euthanasia, a doctor cannot administer end-of-life drugs to a terminally ill person because this goes against a doctors ethics, otherwise when voluntary euthanasia legislation is discussed in jurisdictions that are debating whether to implement this kind of legislation all we ever hear is “How can this fit with the ethics of being a doctor?”. Never mind that though, it is perfectly fine for a lawyer to buy end-of-life drugs for someone who is not choosing to die, when there is a likelihood that they do the work that they do with death row inmates because they are not in favour of the death penalty for their clients.

Even more ironic than any of the above would have to be the professional rule that Arizona lawyers are bound by, which insists that a lawyer should reveal any information they receive that could prevent their client from committing a criminal act that would result in death. But here we are expecting a lawyer to commit a criminal act that results in the death of their client?

At the end of all that, we can also add the fact that the lawyer has also likely engaged in conduct that could be seen to be prejudicial to the administration of justice. Now we could potentially end up with a bunch of lawyers who will have been acting in the way they have so been ordered by the State, yet are likely in prison themselves for importing an illegal substance into the US. Of course, this is in addition to the fact that all the years of study, continued research and self-directed legal education is now irrelevant as the lawyer has potentially been disbarred for professional misconduct. Is Arizona trying to ensure the end of the lawyers that advocate for these people too?

Tasha Russell is the Legal Director for a euthanasia advocacy and activism organisation, Exit International.

Suggested citation:Tasha Russell, Arizona’s Death Penalty Procedures & Professional Ethics, JURIST – Hotline, March. 14, 2017, http://jurist.org/hotline/2017/03/Tasha-Russell-arizonas-death-penalty-procedures-professional-ethics.php