One of my clients, Robert South, decided to waive his right to appeal and chose to be executed. Robert had a brain tumor that could not be removed. Though not fatal, the tumor significantly disrupted his sleep cycle, made him extremely sensitive to noise, and caused frequent and severe headaches. Robert also suffered from chronic post-traumatic stress disorder. Then 48, he had been in foster care after his mother abandoned him at age 3, and he had been the victim of extreme physical, sexual, and emotional abuse. At the time that he decided to waive his appeals in 1993, Robert had been on death row for about 10 years, following his conviction for the murder of a police officer in West Columbia, S.C.
Robert told me that he was tired and no longer wanted to go on. His son and daughter were grown. Unlike many death row inmates, he had maintained a relationship with his children, but as they grew older, he saw them less. He was convinced that they were doing well and no longer needed whatever he could provide them.
It’s hard to describe and easy to trivialize the emotional turmoil of an inmate’s life on death row. Condemned prisoners are typically confined to small cells for 23 hours a day. Visits from their family members—assuming the inmate is one of the few lucky enough to get visitors—are very limited and take place through a glass partition. Execution dates are periodically set and then stayed. Some inmates weather the strain better than others; Robert did not take it well. He probably would have obtained a new trial about his sentence because of the tumor, which wasn’t discovered until after the trial in which he was given the death penalty. Still, Robert was adamant that he did not want to live the rest of his life in prison. I did not view Robert’s choice as irrational. But it was suicidal.
Since the United States Supreme Court reinstated the American death penalty in 1976, there have been 964 executions; 113 of those executions, including the first, involved “volunteers”—inmates like Robert who waived their appeals and permitted the sentence to be carried out. Based on my 20 years of experience as a capital defense attorney, death row volunteers are almost always suicidal.
Life on death row in America is a breeding ground for volunteerism. A sense of hopelessness, the loss of relationships, and social isolation are the most common factors leading to suicide among nonincarcerated people; these factors define life on death row. The profiles of a volunteer and of a person outside prison who commits suicide are strikingly similar. The overwhelming majority of volunteers and suicides are white males with a mental disorder (generally depression). Many also have a substance abuse disorder and a history of suicide attempts. Robert met all these criteria. He went through severe bouts of depression, for which he attempted to self-medicate with alcohol and numerous illicit substances when he was on the street. He also tried to kill himself on a number of occasions.
Any lawyer who has represented death row inmates has faced the volunteer problem. It’s not enjoyable, and each and every volunteer case raises troubling issues. Robert, for example, had talked about dropping his appeals for several years. I, along with another lawyer who worked with me on the case, spent hours talking to Robert and, in some sessions, pleading with him to press on. His main reason for wanting to die remained: Living on death row, especially with a brain tumor, was not living.
How should I have viewed Robert? As a client making a decision to accept a legal outcome, or as a person seeking the state’s aid in committing suicide? Were it not that his choice, if unfettered, would result in his death, it would have been clear to me that he was making the kind of ultimate (as opposed to strategic) decision that a client is entitled to make, regardless of his lawyer’s opinion. Viewed from that vantage point, the only question was whether Robert was competent to make that choice. But Robert clearly intended to hasten his own death. He welcomed death. During one of our conversations, I asked him why he didn’t just take his own life rather than let the state do it for him. He responded, “It’s not as easy to kill yourself in here as you think.” He also expressed a fear that he would fail and turn himself into a “cripple” or a “vegetable,” and subject himself to further victimization. “Why do that?” he asked, when he had a foolproof method at his disposal—death by lethal injection.
In retrospect, I see that my ambivalence was rooted in my belief that Robert’s desire to die was rational. I could understand why he wanted to die. But further reflection has led me to conclude that the key question wasn’t whether Robert was rational. It was whether the laws relating to suicide should apply in this situation, as they don’t now. Even people in extreme pain, with no hope of improvement, certain to lose their mental abilities, or imposing enormous financial or psychological costs on family members, can be prevented from committing suicide. To reinforce that outlook, in every state but Oregon, other people are prohibited from assisting someone who wants to commit suicide. In Oregon, only a person who is terminally ill may seek state assistance in bringing about his or her death.
What insight do I take from assisted suicide laws in thinking about the current legal standard for a death row inmate, which examines only his mental competence? The current law is wrong to disregard motivation. Robert’s motivation should have been the focus of the proceeding convened to decide whether he would be permitted to waive his appeals and submit to execution. The law should have required the judge to determine whether Robert truly accepted the justness of his punishment, or whether he was seeking to commit suicide. The law is wrong, and it’s our obligation to seek to change it so that it requires evidence of the volunteer’s actual motivation.
Other lawyers may question whether it is their job to convince a client to persist in his appeals if he wants to waive them. But in my view, it is. The condemned inmate’s attorney is often forced to play the role of counselor. He or she may be, and often is, the client’s main or only contact with the outside world. The attorney often has more insight into the reality of death row than the inmate’s family members or his spiritual adviser. In Robert’s case, for example, my fellow lawyer and I knew better than anyone why he no longer wanted to go on. But we were also in the best position to make his life on death row more humane or to seek treatment for his depression.
An inmate’s desire to volunteer for execution is often transitory. It is often driven by a bout with depression that will dissipate over time, or by a particular event like the loss of a parent or other loved one. Without encouragement, and, in many cases, without cajoling, the inmate may do irreparable harm to his case if, as a result of his lawyer’s deference to his wishes, he lets the authorities know he would like to waive his appeals and then decides not to waive them after all. Harsh laws of procedural default, made more draconian by the Antiterrorism and Effective Death Penalty Act of 1996, may prevent a court from considering a death row inmate’s appeals once he has expressed a desire to die.
My feelings about Robert’s waiver were mixed. Perhaps respect for him as a person should have led me to defer to, rather than resist, his choice. Right or wrong, I did resist his choice by arguing that he was not competent to waive his appeals. The state court trial judge found him competent and, truth be told, correctly so. Robert’s execution was scheduled to occur a month after the hearing.
Robert was initially angry that I would not help him in his quest for death, but he later told me that he understood my feelings. Despite my opposition to his choice, Robert asked me to witness his execution. In May 1996 I entered the execution chamber with Robert and a team of prison guards. My colleague sat behind the glass partition in the witness area. Robert did not want any of his family members there. After they placed him on the gurney and put the needles in his arm, I held his hand. Robert was nervous but he appeared calm. The warden announced that the execution could begin, and I told Robert that I loved him. His last words were, “I love you too, John.” Half an hour later, my colleague and I left the death house. As we walked out into an early summer sunset, we hoped that our client had found the peace that had escaped him in life. But we knew that we had just watched a man commit suicide.
John Blume is director of the Cornell Death Penalty Project. Reprinted from the New Haven—based nonprofit magazine Legal Affairs (July/Aug. 2005). www.legalaffairs.org.