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Wednesday, October 31, 2018

"Volunteering for Execution" (again)

Reading and thinking about this Bloomberg news-item ("In Unusual Capital Fight, Inmate Gets His Wish and Gets Executed") took me back to a Prawfsblawg post of mine from more than ten (!) years ago.  Reacting to a then-recent decision by the U.S. Court of Appeals for the Ninth Circuit, I wrote: 

The term "death-row volunteer" probably sounds strange -- do people really "volunteer" to be on death-row? -- but, nonetheless, it describes reasonably accurately a not-insubstantial number of those convicted murderers who have been executed in the United States since 1976.  (For more detail on the death-row-volunteer issue, see this paper of minefrom a few years ago.) 

Today, the indefatigable Howard Bashman reports, the en banc United States Court of Appeals ruled that Robert Charles Comer, who was sentenced to death in Arizona, was "competent" to waive further proceedings relating to his federal habeas corpus petition and that he had, in fact, "voluntarily" waived those proceedings.  In a nutshell, the Ninth Circuit ruled that, notwithstanding the possibility that legal errors had infected his capital-sentencing proceedings, Comer could prevent judicial correction of those errors by "volunteering" to be executed, in accord with his death sentence.  (The court rejected the argument, advanced by Comer's counsel -- who were arguing, obviously, against Comer's stated wish to volunteer -- that Comer's "volunteering" was the product of harsh prison conditions.)

What should we think about this case?  How should we think about death-row volunteers generally?

Perhaps the most famous death-row "volunteer" was Gary Gilmore, who imagined himself something of a romantic outlaw-hero.  As is described at (great) length in The Executioner's Song, he fought, bitterly and publicly -- with the help of some publicity-hungry lawyers -- the efforts by the ACLU, his own mother, and others to prevent his execution.  Gilmore insisted, in an open letter to the ACLU, "I know what I did. . . .  I know the . . . effect it had on the lives of two families.  I'm wiling to pay ultimately.  Let me!"  "Butt out of my life," he demanded.  To which the ACLU responded, "We don't think the world is obliged to be governed by your preference. . . .  We are not imposing our wants and attitude on you.  We are seeking to impose humanity and decency upon the state of Utah."

So, again, how should we think about Gilmore's or Comer's case?  On the one hand, we might follow a commitment to "autonomy" where it (appears to) lead, and say, something like, "we don't approve of the death penalty, but it's legally authorized, and it's your choice."  As it happens, though, most lawyers for death-row inmates who flirt with volunteering -- and many do -- are willing to contest their own clients' efforts to volunteer and to contest, if necessary, their own client's decision-making capacity.  Here is a question:  If one opposes capital punishment on the ground that it is inconsistent with a commitment to human dignity, is that commitment undermined or impeached by efforts to paint one's client as "incompetent" in order to prevent him from pursuing a course that one believes will result in immoral state action?

I once represented a man who was living -- like Comer -- on Arizona's death row.  He twice "volunteered" -- or started to -- but was dissuaded.  If he had not changed his mind, though, what should I -- or another lawyer who opposed the death penalty but also knew that the inmate was not delusional, just tired, lonely, and remorseful -- have done?

By way of an update:  A few years I posted the above, the person I represented had his death sentence vacated (thanks to the hard work of other lawyers).

Posted by Rick Garnett on October 31, 2018 at 10:11 AM in Criminal Law, Rick Garnett | Permalink


Thoughtful post, Rick. It is my experience that those who breezily suggest that death penalty lawyers are usurping their client's autonomy by resisting attempts to volunteer probably (but not inevitably) lack any real insight into the mental health and cognitive functioning of many people on death row. (I'm not talking about you, Rick.) Of course there is some threshold of mental health and cognitive functioning for which a suggestion of that sort would be true,but that threshold is almost, in reality, cleared. Anyone at all familiar with representing folks on the row knows that talk of volunteerism is rampant and the fragile preference almost always temporary.

Posted by: Lee Kovarsky | Nov 1, 2018 11:15:30 AM

“But , go and tell it , to soldiers for example , soldiers of special units , to give up , the cyanide pill they carry typically in special operations , and endure unbearable tortures , if they would fall at the hands of the enemy.”

The Just Judge, will still be the ultimate Judge, but certainly one could not claim that those who survived the torture, and did not take the cyanide pill, did something that was unconstitutional.

Posted by: Nancy | Nov 1, 2018 9:47:33 AM

Just link to the citation I have brought ( jokes ) :



Posted by: El roam | Oct 31, 2018 11:49:51 AM

Very interesting . Just worth to note :

That Rodney Berget , was actually joking with the executors , right before being executed , here I quote him , Following six - hour delay in the execution plan, he said :

" Sorry for the delay , I got stuck in traffic "

So , it may suggest , that he was stable , and determined , not having impaired volition , concerning such decision yet to be executed out of his free will apparently .

The questions , posed by the post , are pretty complicated :

On one hand , we tend to consider life , as the utmost sacred value . Yet , far from being so . In fact , many human rights activists , claim , that life , is not the ultimate merit. Many , or in fact , each one of us , would prefer to die , over , enduring heavy tortures , let alone , endlessly , but to stay alive and just for breathing ( with or without a supporting machine ) So , it is clear , that too many times , dehumanization is worse than life . On the other hand :

If death would be rendered , cheap and accessible , it would render life , unbearable , for those , who wants to live , or having normal lives .

But , go and tell it , to soldiers for example , soldiers of special units , to give up , the cyanide pill they carry typically in special operations , and endure unbearable tortures , if they would fall at the hands of the enemy .


Posted by: El roam | Oct 31, 2018 11:43:33 AM

This really does put a fine point on it. Are lawyers representing their clients, or are they using them to impose the lawyers' wishes on society? The ACLU made clear what they are doing.

How is it consistent with democratic theory to have lawyers change public policy just because they are personally opposed to a law enacted by the people's representatives? It's one thing if they are claiming the law is unconstitutional, but they are not (usually) in death penalty cases. They are merely filing vexatious and frivolous petitions in order to frustrate the operation of the law.

Posted by: Biff | Oct 31, 2018 11:02:40 AM

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