Table of Contents Introduction I. Different Rights to Die A. Death-Sentenced Prisoners 1. Process for Hastening Execution 2. Legal Criteria for Hastening Execution B. Hastening Death in the Medical Context C. Analogizing the Volunteer to the Severely 111 Who Seek to Die II. Empirical Findings Regarding Death Row Prisoners, Including "Volunteers" A. Death Row Volunteers Generally Do Not Have a "Terminal" Condition Comparable to That Which Limits Applicability of "Death with Dignity" Statutes B. Death Row Volunteers' Increased Risk for Suicide C. Death Row Prisoners Can Have Meaningful Relationships with Third Parties D. Volunteers' Legal Proceedings May Not Be Vigorously Litigated E. Litigation Without Counsel Threatens the Integrity of the Legal Process III. Social Influences on Rights to Die A. Among the Very 111 1. Twentieth-Century Euthanasia Movements 2. The Role of Organized Medicine in Contemporary Movements 3. Fear of the Slippery Slope 4. Contemporary Legal Safeguards B. Among the Death-Sentenced 1. Historical Context 2. Logic of Death Penalty Law 3. Cultural Frames of Mental Illness and Criminality IV. Proposed Analysis for Adjudicating Requests to Expedite Execution A. State's Interest in Preventing Suicide and Preserving Life B. Institutional Security Concerns C. State's Interest in Protecting Innocent Third Parties D. State's Interest in the Integrity of the Legal System and Legal Profession 1. The Legitimacy of the Death Penalty System 2. The Integrity of the Legal Profession 3. Counsel Must Be Appointed to Represent the Range of State Interests E. Standard of Proof Conclusion INTRODUCTION
With the ink scarcely dry on the Supreme Court's decision reviving capital punishment in the United States, (1) Gary Gilmore burst onto the legal scene. Gilmore demanded his execution, all but daring the State of Utah to kill him. In response to opponents of his execution, Gary Gilmore complained:
You know, the U.S. Supreme Court has ruled that you have a right to die. I'm talking about the Karen Ann Quinlan case. I don't even really think that enters, if I want to press for my civil rights. I could raise issues like that, but I'm not. (2) Since Gary Gilmore's 1976 execution, over 10% of death-sentenced prisoners executed in the United States hastened their own executions. (3) This Article examines Gilmore's (and others') contention that these prisoners have a "right" to die, as well as the sociolegal context in which rights to hasten death are embedded. Comparing the rights to die of the terminally ill and the death-sentenced reveals how historical contingencies, normative beliefs, and different legal logics can shape legal responses to demands for rights. In this case, the death row prisoner is legally privileged as compared to the terminally ill patient. Paradoxically, however, the more expansive right held by the death row prisoner reflects and furthers his social marginalization.
Prior scholarship on so-called volunteers has generally taken one of two approaches. (4) One strand focuses on reforming the legal standards governing volunteers. Anthony Casey, as discussed below, argued for different standards for waiving appeals depending on the appeal sought to be waived. (5) John Blume proposed a framework for adjudication that would assess possible suicidal motivation and prohibit "unjust" punishments, such as the execution of the innocent or those who are categorically excluded from the death penalty. (6) This scholarship retains the essential conceptual model of the criminal law of waiver and the Eighth Amendment death penalty framework of heightened reliability. Another thread of scholarship has argued for a right to execution, analogizing the death row prisoner seeking execution to the terminally ill. (7) As explored in greater detail below, this latter work has relied on assumptions about the volunteer population and how capital law works to argue for a categorical right to execution, rather than one that should be subjected to careful, individualized weighing of interests.
This Article supplies a much-needed empirical basis for a critique of the waiver model as inadequate and the unqualified Fourteenth Amendment right to die as inappropriate. The legal standard for waivers is low and problematic, as discussed below. Further, the Fourteenth Amendment right to die framework, which balances the state's interests in the preservation of life, prevention of suicide, protection of third parties, and protection of the integrity of the medical profession against the individual's interest in autonomy in dying, is relevant to the death row prisoner. Based on recent research on the death row population generally and volunteers specifically, I propose a standard for death row volunteers that borrows from the medical context by requiring the volunteer to persuade the court that his right to die outweighs the state's interests.
The death row data support the analytic "fit" of the Fourteenth Amendment model. Mental health researchers have found a greater prevalence of psychological and psychiatric disorders on death row generally, and my research suggests that volunteers may be at greater risk for suicide. Many, if not most, death row prisoners (including volunteers) have ties to third parties. My research also highlights the inability of the waiver model to protect the integrity of the legal profession and the legal system broadly conceived. Bypassing appeals raises concerns about the reliability of the capital punishment system. In addition, observations of attorney performance reveal the professional and ethical tensions attorneys confront as they represent volunteering clients.
This Article also goes beyond previous work by tracing the sociolegal context in which different rights to die emerged. By contrasting Gary Gilmore and Karen Ann Quinlan, historical contemporaries and landmark figures in defining modern American rights to die, this Article illuminates not only the contradictory ways the law treats the asserted right, but also the profoundly different historical and social settings in which these rights claims emerged. This Article then urges courts to refocus on the fundamental question: when can an individual legally obtain assistance in dying? In answering that question for death-sentenced prisoners, courts should consider the broader social values that they have traditionally weighed in adjudicating requests to hasten death in the medical context.
Part I of this Article sets out the different legal frameworks for adjudicating requests to hasten death among the death-sentenced and the sick. Part II describes empirical findings that should inform the central legal questions. Part III discusses the historical and cultural context in which the law took shape. Part IV proposes an improved legal process that incorporates the state's interests in decisions to hasten death in the medical context into adjudications of death row prisoners' requests to hasten execution. It would also mandate that counsel be appointed to advance the state's interests in opposing the prisoner's waiver of further appeals. In its Conclusion, this Article reflects on some of the larger questions raised by this project, including the apparent paradox that the socially powerless death row prisoner has a right to assistance in dying where the innocent and ill do not. In addition, the death row research reveals the precarity and ambiguity of certain legal constructs, such as "voluntary" and "rational," which are central to defining a right to die.
DIFFERENT RIGHTS TO DIE (8)
Death-sentenced prisoners vindicate a right to die through a technical legal process that, when contrasted with the process used by those with serious physical illness, reflects how differently these groups are treated. Courts understand that seriously ill people are embedded in a larger social world and recognize that their cases present profound questions about death and dying. By contrast, for the volunteer, even the most salient concern about the legitimacy of a state execution recedes as the court focuses on the narrower issues of whether the prisoner is competent to waive his rights to appeal and does so knowingly, intelligently, and competently.
After outlining the death row volunteer's legal process, this Part describes the evolution of rights to die in the medical context. As discussed in greater detail below, patients achieved the right to refuse life-sustaining medical intervention in most instances, but a right to assistance in dying was rejected by the Supreme Court. Certain states responded by authorizing assistance in dying under certain very limited circumstances. The Part concludes by analogizing the death row volunteer to patients who seek assistance in dying.
Process for Hastening Execution
A death-sentenced prisoner can hasten execution by abandoning his (9) appeals, usually by discharging counsel and electing not to file any pleadings on his own behalf. Prisoners typically have three essentially sequential avenues of appeals.
The first appeal is called a "direct appeal," in which the prisoner generally argues to the state's highest criminal court that the trial judge made...