Standards and procedures for determining whether a defendant is competent to make the ultimate choice - death; Ohio's new precedent for death row "volunteers" standards.

• Author: Norman, Matthew T.

1. INTRODUCTION

   Currently there are over 3,500 inmates on death row in the United States.(1) Since 1976, 500 defendants have been executed by means of either lethal injection, electrocution, the gas chamber, hanging, or the firing squad.(2) There are 38 states that authorize the death penalty for certain heinous crimes,(3) and Ohio is one of those states.(4) At the time of this writing, Ohio has approximately 190 defendants waiting to die in its execution chamber.(5) For the past several years, one of Ohio's death row inmates stood out from the rest. His name was Wilford Lee Berry Jr. He was unique because, unlike any of the other Ohio inmates currently on death row, he was ready and willing to walk the 22 steps it takes to get from a holding cell to the execution chamber.(6) While most of us would fight life and limb to avoid death, partly as a result of our innate human nature, Wilford Berry decided not to fight and instead to accept the ultimate fate the state of Ohio handed to him.

   Wilford Lee Berry Jr. wanted to be executed and actively fought for this punishment since his 1990 conviction for murder.(7) On December 3, 1997, the Supreme Court of Ohio, by a 7-0 vote, granted Wilford Berry's wish.(8) On February 19, 1999, Berry's death sentence was carried out and his fight to die finally ended.(9) Berry's execution marked the first time Ohio had put someone to death since 1963.(10)

   Berry is considered to be a death row "volunteer."(11) According to Webster's Dictionary the term volunteer means "a person who voluntarily offers himself or herself for a service or undertaking."(12) Accordingly, a death row inmate such as Berry, voluntarily offers himself for an undertaking, and in this circumstance the undertaking concerned is actual execution. The death row volunteer literally requests to be put to death.(13) The volunteer orders that the state disregard any remaining appeals that are available to him, or, may command that those appeals already in progress be terminated. Once the volunteer's wish is granted, the court is left with nothing to determine with regard to possible challenges to the conviction and sentence of the defendant; and thus may expedite the defendant's execution date.

   Although Berry's request was one of first impression in Ohio, surprisingly many other death row inmates throughout the United States have waived their available appeals and asked to be executed.(14) In 1997 and 1998 combined, 17 "volunteers" were executed.(15) Officials approximate that 10 percent of all the people executed in the past 20 years have requested to die.(16) National experts estimate that the number of defendants who volunteer for death is increasing.(17)

   Wilford Berry began his crusade for the death penalty when he entered the criminal justice system in 1989.(18) After Berry confessed to the murder for which he was convicted, he told police that he wanted the death penalty.(19) During his trial, he told the jury "You might as well sentence me to death row, because by the time I finish 20 or 30 years, I will be so institutionalized that I wouldn't hesitate to kill you for just looking at me."(20) After Berry's conviction, he arrived at his prison cell at the Mansfield Correctional Institution and continued his crusade for death.(21) He wrote letters to the Cuyahoga County Prosecutor, the Attorney General of Ohio, and the Governor of Ohio, explaining his wish for an expedient execution.(22) Berry even began one letter that he sent to the Chief Justice of the Ohio Supreme Court with an expletive to show his disdain for possible delays.(23)

   Berry's mother and sister could not comprehend why their loved one wanted to die, and had asked him to continue his appeals.(24) But, Berry did not see any point to continuing appeals, and said that "even if I had a second trial, I would be found guilty again, and sentenced to death again and ultimately executed."(25) Berry explained that if his conviction was overturned, the result would only be "to wait around on death row for 20 years" to later be executed.(26)

   In addition to Berry's family, his public defenders also had a difficult time rationalizing his decision not to pursue any appeals.(27) His attorneys maintained that they were "'ethically obligated' to pursue further appeals, even against Berry's wishes, because society has a stake in ensuring the reliability and integrity of any death sentence."(28) The State of Ohio's Attorney General, who ironically advocated for Berry's position, took the stance that "He's a volunteer ... and if a volunteer wishes to have the death penalty, we will concur in that."(29)

   The sides of this debate were chosen early on. The Supreme Court of Ohio sided with Berry, ruling that he could waive his further appeals.(30) But, before the supreme court could fulfill this man's desires, and before the supreme court set down its new precedent, the defendant had one major hurdle to overcome. The supreme court needed to determine whether Berry was competent to make this ultimate decision of death, to wit: whether Berry had "the mental capacity to understand the choice between life and death and to make a knowing and intelligent decision not to pursue further remedies."(31) This Note will focus on the requirement that a death row volunteer, like Wilford Berry, be deemed competent in order to allow him to waive his appeals, and expedite his execution date.

   Despite the fact that many states will allow a death row defendant to waive his legal appeals in order to hasten his execution date, there are inadequate standards and procedures for determining whether the "volunteer" is first competent to make this ultimate decision of life versus death. To provide background for this issue, this Note will discuss the events initially leading up to the nation's first death row "volunteer", then it will introduce subsequent volunteers of the present day. This Note then will look at what the United States Supreme Court has said about the standards and procedures that are necessary in order for a defendant to waive his appeals. This Note next will analyze the standards and procedures for competency that are utilized in the states that have allowed a defendant to waive his capital appeals and address the problems and questions that arise in using these standards and procedures. Finally, it will consider the public policy results of allowing a defendant to waive his death penalty appeals, if found competent.

2. EVENTS LEADING UP TO THE NATION'S FIRST DEATH ROW "VOLUNTEER"

   1. Origins of Capital Punishment

      The origins of capital punishment in our modern society can be traced back to Biblical times. In the Old Testament the death penalty was required for a wide range of offenses, including murder.(32) In the King James version of the Bible, Genesis 9:6 states that "Whoso sheddeth man's blood, by man shall his blood be shed: for in the image of God made he man."(33)

      Over 2000 years later, capital punishment is still being used in the United States. Capital punishment is rooted in our nation's English common law.(34) In the eighteenth century, England authorized capital punishment for numerous crimes, even crimes against property.(35) The American colonies continued this English tradition, and also included offenses less culpable than murder, such as, adultery, idolatry, witchcraft, and blasphemy.(36)

      Leading up to the time of the signing of our U.S. Constitution, the debate over whether the state should be allowed to take a man's life, because he took the life of another, began to take shape. In drafting a state constitution for Virginia, Thomas Jefferson provided capital punishment for the crimes of treason and murder.(37) But, James Madison believed that this provision in the state's constitution would "unduly tie the hands of Government."(38) Madison was concerned that juries would not be able to impose capital punishment in a fair and reliable manner and would have much difficulty determining who deserved the death penalty and who did not.(39)

      Ultimately, in crafting our United States Constitution, the Framers never clearly authorized capital punishment. However, the Fifth, Eighth, and Fourteenth Amendments to the Constitution have been used to provide a framework for states to enact procedures for their death penalty statutes. The Fifth and Fourteenth Amendments provide that the deprivation of life cannot be taken without "due process of law," while the Eighth Amendment asserts that "cruel and unusual punishments" cannot be imposed.(40)

      Because the death penalty had become such an institutionalized practice in our system of criminal justice, it was not until many years after these constitutional mandates were enacted that the death penalty's administration was first called into question.(41) With the backdrop of the civil rights movement of the 1960's, and with several recent victories for criminal defendants' rights in place,(42) the issue regarding the constitutionality of the death penalty was ripe.

   2. Furman v. Georgia

      In 1972, the United States Supreme Court, as ultimate interpreter of our Constitution,(43) had to determine, in Furman v. Georgia, whether the states' administration of the death penalty violated the Eighth Amendment's ban on "cruel and unusual punishment."(44) The Court recognized that death is a kind of punishment different from any other that is available in our criminal justice system.(45) With the death penalty's uniqueness and inherent finality in mind, the Court's concern was that the states were not uniformly applying the death penalty in any reliable or consistent manner.(46)

      Specifically, the Court looked at how the schemes of states capital punishment statutes gave the sentencer, usually a jury, the power to make a decision about the defendant's fate with little or no guidance, and without any checks on the sentencer's possible abuse of this enormous power.(47) In a 5-4 decision, the Court concluded that "the Eighth and...