Killing the willing: "volunteers," suicide and competency.

• Author: Blume, John H.

INTRODUCTION

When my client Robert South decided to waive his appeals so that his death sentence could be carried out, I understood why he might make that choice. Robert had a brain tumor that could not be surgically removed. Though not fatal, the tumor disrupted his sleep/wake cycle and had other negative physical consequences, including severe headaches, for his daily existence. He also had chronic post-traumatic stress disorder ("PTSD"), resulting from a profound history of childhood physical, emotional and sexual abuse. Robert suffered from daily recurrent flashbacks of the abuse. He had been on death row for almost a decade, and his children were grown. In his own words, he was "tired," and he no longer wanted to go on.

Even though he almost certainly would have obtained a new sentencing trial, and a life sentence seemed clearly obtainable, I did not view his choice as irrational. But it was suicidal. As a consequence, my feelings about his waiver were mixed; perhaps respect for him as a person should have led me to defer to, rather than resist, his choice. Rightly or wrongly, I opposed his choice, arguing that he was not competent to waive his appeals. But he was deemed competent, and, truth be told, correctly so. Despite my legal opposition to his choice, Robert asked me to be his "witness" at his execution, and I held his hand while the state took his life by means of lethal injection.

Robert's case is hardly an isolated incident. Since Gregg v. Georgia (1) ushered in the "modern era" of capital punishment, (2) there have been 885 executions, (3) 106 of which, including the first, (4) involved "volunteers," (5) or inmates who waived their appeals and permitted the death sentence to be carried out. (6) Moreover, for every successful volunteer, there have been numerous death-row inmates who took affirmative steps to waive their appeals but subsequently changed their minds, and even more who contemplated forgoing additional legal challenges to their death sentence and submitting to execution. (7) Every death-row volunteer inevitably presents us with the following question: Should a death-row inmate who wishes to waive his appeals be viewed as a client making a legal decision to accept the justness of his punishment, or as a person seeking the aid of the state in committing suicide?

Both characterizations are in some respects accurate. Were it not for the fact that the client's choice, if unfettered, will result in his death, it would be clear that this is the kind of ultimate (as opposed to strategic) decision that a client is entitled to make for himself, regardless of the opinion of his lawyer. (8) Viewed from the client-choice vantage point, the only question is whether the client is competent to make that choice. On the other hand, were it not for the fact that the inmate has been sentenced to death, it would be illegal in virtually every jurisdiction for anyone to assist the inmate in actively hastening his own death. (9) From the assisted-suicide perspective, no death-row inmate should be permitted to abandon his appeals. Whether (or how) these two models can be reconciled remains unclear.

Further reflection about Robert South's case has led me to conclude that my own ambivalence, and its underlying reliance on rational choice, was, and should be, irrelevant. The question is not the rationality of a volunteer's choice--or its wisdom or morality. Instead, the question is whether laws relating to suicide apply, and those laws do not depend on the rationality of the desire to terminate one's life. Even persons in extreme pain, persons with no hope of improvement, persons certain to lose their mental abilities, or persons imposing enormous financial or psychological costs on family members can be prevented from committing suicide, and others are prohibited from assisting suicide under those circumstances--in every state but Oregon. Moreover, even in Oregon, only when the suicidal person is terminally ill is he protected from intervention by the state; and only then are prohibitions against third-party assistance relaxed. Unless and until legal norms governing suicide and assisted suicide change, if a court finds the volunteer is motivated by the desire to terminate his life, the rationality of his decision to do so should not be considered.

Although the volunteer phenomena has been the subject of a number of fractured judicial decisions, (10) hotly debated among lawyers who represent death-row inmates, (11) and in the legal literature, (12) the discussion has been largely polemic, with little recognition (or at least acknowledgment) on either side that the volunteer phenomenon is not fully captured by either model. Those who either oppose, or wish to curtail, a death-row inmate's ability to waive his appeals refer to volunteer cases as nothing more than "state-assisted suicide;" on the other hand, advocates of permitting inmates to choose execution reject the suicide label, instead focusing on respect for a death-row inmate's right to choose whether to accept his punishment. And, perhaps not surprisingly, the current legal regime under which volunteering is regulated--the competency standard--is equally blind to an individual's motivation and thus embraces the same categorical rigidity.

This Article does not attempt to re-plow the either-or debate. Instead, I begin in Part I with a summary of the current legal standards for volunteering and assisted suicide. I attempt to place these standards within the context of the theoretical debate over volunteering. In doing so, I argue that the current standard for volunteering, which views volunteering as a simple matter of personal client choice, ignores the motivations behind that choice. The competency standard is indifferent to whether a volunteer is motivated by the desire to commit suicide or the desire to accept the justness of his punishment. Furthermore, because either motivation is potentially possible, and because different results should follow from a suicidal as opposed to an acceptance-of-the-justness-of-the-punishment motivation, I argue that neither side of the debate adequately accounts for the nuances of the unique phenomenon of volunteering. Instead, given the current legal norms prohibiting assisted suicide, we should ask whether, at least in some instances, the act of volunteering is best characterized as suicidal.

Part II explores how, and how often, volunteers are in fact similar to suicidal persons. Given the plausibility and prominence of the dissenting rhetoric of "assisted suicide" in cases involving volunteers, this Article offers some empirical comparisons between the characteristics of death-row inmates who have waived their appeals and been executed with those of people who commit suicide in the "free world." Several similarities are quite striking. Both groups contain disproportionately high percentages of white males, mentally ill individuals, and persons with substance abuse disorders. (13)

Demographic and epidemiological similarities between death-row volunteers and free-world suicides strongly suggest that the present competency standard is wrong in its wholesale rejection of the suicide model, and should be altered to reflect the prevalence of suicidal motivation.

At this point, the existing data fall short of establishing that a death-sentenced inmate's decision to forgo further appeals is always the psychological equivalent of suicide. For this reason, even in jurisdictions that uniformly forbid assisted suicide, a complete prohibition against such waivers, and thus voluntary executions, is inappropriate. Part III proposes a standard for assessing waiver which takes into account the prevalence of suicidal motivation among volunteers, attempting to ensure that a death-row inmate is not permitted to use the death penalty as a means of committing state-assisted suicide, but also protecting the right of a mentally healthy inmate to forgo further appeals when motivated by acceptance of the justness of his punishment. I conclude by applying the standard to several hypothetical situations drawn from cases of actual volunteers.

1. THE LAW AND THEORY OF VOLUNTEERING

   In this section of the Article I will first discuss the development of the current legal standard for determining whether a death-row inmate will be permitted to waive his appeals, which asks only whether the individual is competent. I will then briefly discuss the law of assisted suicide. Finally, I will return to the theoretical debate over how the phenomena of volunteering should be assessed. In each instance, I will attempt to demonstrate that the question of individual motivation has been shortchanged.

   1. Competency: The Current Legal Standard for Volunteering

      As I mentioned at the beginning of the Article, when I decided to challenge Robert South's request to waive further appeals, I was forced to argue that he was incompetent. That is because the Supreme Court has held that the only showing that a death-row inmate must make in order to forgo his appeals is that he is competent. The evolution of this standard, however, was a slow and fitful process. (14) The Court first faced this issue in Rees v. Peyton. (15) Rees, a Virginia death-row inmate, directed his attorney to withdraw a petition for certiorari filed on his behalf. Counsel refused to do so, ostensibly due to doubts about his client's competency. The Supreme Court remanded the case to the district court for a heating to determine whether Rees should be permitted to waive his appeals and let the death sentence be carried out, (16) directing the district court to determine Rees's "mental competence," or whether "he has [the] capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation or on the other hand whether he is suffering from a mental disease, disorder, or defect which may substantially affect his capacity in the premises."...