State v. Robert: why mitigation waivers during capital sentencing undermine fundamental justifications of punishment.

• Author: Dulberg, Adam L.

On October 15, 2012, at 10:24 PM, South Dakota death row inmate Eric Robert was pronounced dead. (1) Only eighteen months earlier, Robert was serving an eighty-year sentence for kidnapping. (2) During this brief period, Robert murdered a sixty-two year old corrections officer during a failed two-man escape from the South Dakota State Penitentiary, pled guilty to first-degree murder, received a death sentence for his crime, and was ultimately executed by lethal injection.

Robert's execution signified a relatively rare phenomenon in South Dakota. Since reinstating the death penalty in 1933, the state has carried out only four executions, (3) and as of November 2012, there were only three inmates sitting on the state's death row. (4) Even more unusual than the sentence itself, however, was the speed with which the state acted to carry it out, given that the average death row inmate in the United States typically spends over a decade on death row. (5) By contrast, Robert spent less than a year on death row and was executed in 2012 for a murder committed in 2011, a time frame that comes close to a modern (6) death penalty efficiency record. (7) Amidst heightened concerns regarding the efficacy and fairness of the death penalty as punishment as well as the growing backlog of inmates waiting on death row, why did Eric Robert receive such swift justice? The reason is simple: Robert demanded to be put to death.

The concept of death penalty "volunteering," (8) whereby a defendant consents to his own execution, is not entirely uncommon. (9) Since the reinstatement of the death penalty in 1976, 141 inmates have volunteered to be executed by waiving at least part of their ordinary appeals at the time of their execution. (10) What distinguished Robert from most death penalty volunteers, however, was his resolute determination to receive the death penalty before receiving his sentence. Prior to waiving all of his post-sentencing appeals and challenging the legality of a state-mandated appellate review of his sentence in order to expedite his death, Robert first instructed his counsel not to present any mitigating evidence on his behalf during the pre-sentencing hearing. He then subsequently asked the judge directly to sentence him to death. (11) Robert was well aware that his mitigation waiver would almost certainly guarantee the death sentence he requested, (12) given that his crime clearly satisfied multiple aggravating factors provided in the state's death penalty sentencing scheme.

While such a firm and calculated intent to be executed would typically raise red flags regarding the defendant's competency, Robert's waiver was deemed knowing and voluntary in part due to his thoughtful, retributivist justification for seeking a death sentence:

I do not want to die or desire to die, instead I deserve to die; this I have always stated.... (13) Victims of non-capital offenses receive their justice when the perpetrator is placed in custody. Victims in capital cases receive their justice when the perpetrator is executed.... I am free to admit my guilt, as well as acknowledge and accept society's punishment just as I am free to proclaim innocence in defiance of a verdict. I believe that the sentence of death is justly deserved in any murder and should be carried out.... Give the Ron Johnson family their justice, they have been forced to wait too long. I finish where I started--I deserve to die. (14) Robert also provided a more pragmatic basis necessitating his execution, stating that he needed to be incapacitated or else he would continue killing in prison. (15)

Robert's explanation suggests his execution was justified because it satisfied the two dominant theoretical concepts underlying the purpose of punishment, retributivism and consequentialism. However, that assertion can be challenged by analyzing how mitigation waivers affect the ability of a sentencing body to fulfill its duty in determining an appropriate punishment, as well as the impact of mitigation waivers on the legitimacy of the sentencing process as a whole. While many commentators have focused on the legal, ethical, and moral concerns regarding death penalty volunteers' competency or their decisions to waive post-sentencing appeals while on death row, (16) scholars have focused less on mitigation waivers during the sentencing phase of a death penalty case and specifically on how mitigation waivers comport with generally accepted theoretical justifications of punishment. (17) The prevailing notion is that the presentation of mitigation evidence is simply another procedural right belonging to the defendant that can be freely waived, and that courts should respect the defendant's autonomy in controlling the nature of his defense and his objectives at trial. (18)

However, the act of determining and imposing punishment is a societal duty that must ultimately be carried out solely by the delegated sentencing body, either the judge, the jury, or both. In a capital case, allowing a defendant to prevent the judge or jury from hearing mitigation evidence essentially allows the defendant to control his sentence by restricting the sentencing body from making a fully informed judgment as to whether the defendant deserves to be executed and whether the community is entitled to carry out the execution. When the prosecution is able to satisfy its burden of demonstrating sufficient aggravating factors and the defendant then chooses not to provide any mitigating circumstances that might help explain his behavior or character, the practical effect is that the capital sentencer grants the defendant's death wish. This decision is made regardless of whether the sentence was actually deserved or whether the adverse consequences of allowing defendants to force the State to execute them outweighs the benefits derived from capital punishment in the first place. Such a result necessarily undermines basic justifications of punishment.

This Note seeks to demonstrate that a defendant convicted of a capital offense should never have the right to subjugate the role of the judge or jury in capital sentencing by waiving the presentation of mitigation evidence regardless of whether the waiver was knowing and voluntary. Part I will consider the facts of State v'. Robert, in order to better assess the background and motivation of Eric Robert, the actions taken by Robert's counsel, and the court's response to his death request. Part II will examine the development and purpose of mitigation evidence in the sentencing phase of a capital case as well as the legal jurisprudence governing waivers in the capital sentencing process. Part III will present a criticism of mitigation waivers and arguments favoring the capital defendant's autonomy during sentencing by showing how such waivers undercut both retributivist and consequentialist goals of punishment. To that end, Part III-A will provide a brief synopsis of retributivism and consequentialism and discuss how both theories are used to justify capital punishment. Part III-B will focus specifically on how mitigation waivers undermine any retributivist possibility of the death penalty as just punishment, while Part III-C will consider other adverse consequences from a consequentialist standpoint that result from allowing a defendant control over receiving a death sentence.

1. STATE V. ERIC ROBERT

   1. Robert's Background

      By all accounts, Eric Robert did not have the troubled childhood or extensive criminal history that is often associated with other inmates found on death row. Born in Massachusetts on May 31,1962, Robert was raised by his mother after his father left when he was six years old. (19) He moved with his mother and younger sister to Hayward, Wisconsin when he was a young child and quickly became a father figure in the household, taking care of his sister, Jill, while his mother worked three jobs and studied to earn a college degree. (20) Robert quickly developed a reputation as a responsible and studious young man; he graduated eighteenth in his high school class at Hayward High School in 1980 and put himself through college at the University of Wisconsin-Superior by working weekends and summer breaks. (21)

      After graduating with a biology degree in 1984, he returned to work in Hayward. (22) In 2000, Robert was hired as the wastewater treatment supervisor for Superior, and his application at that time stated that he had not missed a day of work in ten years. (23) Robert's fellow employees described him as affable and easy going as well as a "natural born leader" who accomplished more in his eighteen months as supervisor than any of his predecessors. (24) Robert eventually lost his job after failing to comply with a city residence requirement but continued to assist the city in a consulting role. (25) Robert also volunteered extensively in his free time, including coaching a little league baseball team, working for a volunteer ambulance service, and organizing a memorial fund for a sheriff killed in the line of duty. (26)

      1. The Kidnapping Conviction

         While members of the community considered Robert a "model citizen," close friends and former girlfriends stated that he suffered from alcoholism and had a tendency to become angry, aggressive, and sometimes violent when intoxicated, especially towards women. On July 24, 2005, two months after he moved to Sioux Falls, South Dakota, Robert followed an eighteen-year old woman in his pickup truck and used his spotlights to pull her over on a rural road at 2:00 AM. (27) According to the victim, Robert identified himself as an undercover plainclothes police officer and asked her to get out of the car to perform a field sobriety test. (28) After requiring the woman to empty her car's trunk so that he could perform a search, Robert forced the victim into the trunk and then left her briefly to drive his truck to an empty lot at the end of the road. Robert then returned to the victim's car and drove...