Volunteering to Die: A Client’s Agony and a Lawyer’s Dilemma

Posted in: Human Rights

An article in The New York Times Magazine recently examined the ethical dilemma facing mental health providers whose patients want to end all treatment and enter palliative care. The journalist profiled Naomi, a woman who has suffered for years with anorexia nervosa, and for whom no interventions have ever been remotely successful. She wanted to discontinue most treatments for her condition and allow the disease to run its course. By conventional measures, Naomi is competent to make choices about her care. If, for example, she had cancer, she clearly would be allowed to discontinue chemotherapy and go into hospice. Should the rules be different because she was mentally ill?

It’s an excellent article—well-written and thoroughly researched—and I commend it to all of you. The journalist, Katie Engelhart, raises and fairly presents the difficult moral choices faced by providers in this situation, but never puts her finger on either side of the scale. Readers are left to work out the problem for themselves, as they should be. But the task is not easy. The idea of allowing a patient to choose for themselves and thereby control their own fate is instinctively appealing, but some providers point out that the very nature of anorexia nervosa might make it impossible for the patient to make a competent choice. Though Naomi may express herself clearly, her brain is starving along with her body, which means her words are not purely her own, or so the argument goes.

I certainly do not have an answer to the riddles posed by this article and I suppose it is futile to expect them. All sides make a compelling case grounded in what they think is best for Naomi and patients in her position. But the virtue of this kind of inquiry is not that it yields an answer, as though that were possible, but that it brings to the surface the underlying considerations that we too often leave unexamined. In this case, for instance, where we come down on Naomi’s choice is likely to depend a great deal on how we feel about death, mental illness, and personal autonomy, as well as subsidiary issues like our attitude toward the health care system. At least to some degree, when we argue about whether Naomi should be allowed to end the treatment that sustains her life, we’re really proclaiming our position(s) on these philosophical (or religious) foundations. And it’s always good to unearth and examine our moral core.

In this essay, I want to describe a similar dilemma that I confronted early in my legal career. For people in my line of work, it comes up fairly often. I’m not sure I resolved it correctly and don’t know if I would do the same thing if the situation arose again. But I will tell you what I did and leave the judgment to you.

For decades, I have represented people condemned to die. It is not uncommon for prisoners on death row to tell their lawyers that they want to abandon all challenges to their sentence and allow themselves to be executed. In fact, when I represented men and women on death row in Texas in the late 1980s and 1990s, which was when the death chamber in Texas was most active, it was uncommon for prisoners not to express that sentiment at one time or another. Most of the time, people did not persist in this view, and volunteering to be executed is still relatively rare. But it happens. According to the Death Penalty Information Center, states have executed 151 volunteers in the modern era of capital punishment.

So, imagine a lawyer receiving a letter from a client on death row directing them to drop all appeals and to file no further challenges to the client’s execution. The client repeats the directive when the lawyer visits the following day, and again the following week, and the week after that, and for as long as the lawyer keeps asking. By conventional measures, the client is competent to make choices about their fate. If, for instance, the client had cancer and wanted to discontinue treatment, the lawyer would certainly argue the client was competent to make that decision and would insist that the client’s wishes by honored. What is a lawyer to do in a situation like this?

I’ll tell you what I did, which is the conventional response among the small group of lawyers nationwide who represent people under sentence of death. I resisted my client’s choice. He directed me to abandon his appeals. I refused. He told me to write a letter to the court seeking an execution date. I wouldn’t do it. He wrote the letter himself and set the process in motion. I fought against him. You get the idea. My client was eventually executed, but not before I had forced him and the state to fight me for years.

I don’t know if I did the right thing. I told myself two things that let me sleep better at night. First, I believed then, and still believe, that my client’s conviction and sentence had been obtained unlawfully, and that he was on death row only as a result of an unconstitutional process. I also believed, and still believe, that conditions on death row were horrific and that if he had not been there, he would not have been suicidal. His choice, in other words, was propelled by the physical and psychological conditions of death row in Texas at that time.

The mental torment was especially excruciating. Back then, Texas used execution dates as filing deadlines. Rather than allow an orderly post-conviction process, like every other death penalty jurisdiction, Texas moved cases along by scheduling a prisoner’s execution as soon as a court had ruled against them, which guaranteed the prisoner would advance to the next court. Prisoners lived through one execution date after another, sometimes enduring multiple dates in a single year. Most of the time, these dates were stayed by a court, but stays almost always came at the last minute, which meant the person was brought close to death over and over again. Often, he had already been transferred to the holding cell near the execution chamber and given his last meal. I recall at least one occasion when a stay came only after a person had been strapped to the gurney. And sometimes, stays did not come at all. People on death row not only had to endure this perverse twist on Russian roulette, they had to watch their friends suffer through the same agony, again and again.

Living in an environment like this is enough to make anyone suicidal, and it struck me as fundamentally unjust for the state to create these conditions, simply in order to coerce acquiescence in an unlawful sentence.

The second thing I told myself is that executions should always be contested. Power unrestrained by law is a horrible thing. That, in fact, was the belief behind the litigation that I led challenging the post-9/11 detentions at Guantanamo. My colleagues at the Center for Constitutional Rights and I believed, and still believe, there must never be a prison beyond the law. The power to strap a human being to a table and pump them full of poison should never take place without someone challenging the lawfulness of all that proceeds and accompanies this awful step. Since the state cannot be counted on to police itself, the job falls by default to counsel for the condemned, which is why, as a rule, lawyers for prisoners on death row always challenge a client’s decision to volunteer.

But would I do the same thing again? I honestly don’t know. Yes, I believed his conviction and sentence were unlawful. That belief was eventually vindicated in the courts, but only years later and not in time to help my client. When my client’s case was working its way through the system, the law was still against him—a fact my client understood as well as I did. Yes, the state had forced my client to live in horrible conditions. Yes, it was coercing his decision. Yes, that coercion was morally obscene. But by my actions, I prolonged his torture. Who could blame him for wanting to reclaim some agency in his life by forcing the state to act on his terms, rather than its own? Yes, the state’s decision to kill should always be challenged, but at the expense of my client’s autonomy?

And just to make the situation even more complex, my client eventually changed his mind about volunteering. I don’t think I had anything to do with his choice. As I recall, he had long since stopped talking to me. But after years of fighting each other, he decided not to volunteer. His case went forward in the conventional way, and he was executed by the State of Texas. Did I make his life better by fighting him until he changed his mind? Did he change his mind because he dared to hope for a better outcome, only to see that hope dashed? Would his life had been better if it had ended earlier, but on his own terms? I don’t know.

Capital punishment is the apex assault on individual dignity. But are there times when dignity is better protected by allowing the assault to occur?

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