Washington and Lee Law Review Volume 63 | Issue 1 Article 5 Winter 1-1-2006 Swilling Hemlock: The Legal Ethics of Defending a Client Who Wishes to Volunteer for Execution J. C. Oleson Follow this and additional works at: https://scholarlycommons.law.wlu.edu/wlulr Part of the Legal Ethics and Professional Responsibility Commons Recommended Citation J. C. Oleson, Swilling Hemlock: The Legal Ethics of Defending a Client Who Wishes to Volunteer for Execution, 63 Wash. & Lee L. Rev. 147 (2006), https://scholarlycommons.law.wlu.edu/wlulr/ vol63/iss1/5 This Article is brought to you for free and open access by the Washington and Lee Law Review at Washington & Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Washington and Lee Law Review by an authorized editor of Washington & Lee University School of Law Scholarly Commons. For more information, please contact [email protected]. Swilling Hemlock: The Legal Ethics of Defending a Client Who Wishes to Volunteer for Execution J.C. Oleson* Table of Contents I. Introduction ..................................................................................148 II. Lawyers' Nightmares Do Come True: When the Client Volunteers for Execution ................................................... 150 A. Three Cornerstone Cases of American Capital Jurisprudence ......................................................................... 151 B. Death: A Growth Industry .................................................... 153 C. The Looking-Glass Ethics of the Volunteering Client ........... 154 D. Client- and Cause-Lawyering ................................................ 162 III. Grasping at Straws: Competence As a Means of Avoiding the Volunteering Conundrum ....................................... 166 A. Clearing the Dusky-Rees Hurdle ............................................ 168 B. Depression and Death Row: The Psychology of H opelessness ..................................................................... 170 C. Case Study: Smith v. State .................................................... 175 IV. The Ethics of Killing Your Client ................................................ 178 * Chief Counsel, Criminal Law Policy Staff, Administrative Office of the United States Courts; J.D., School of Law, University of California, Berkeley (Boalt Hall), 2001; Ph.D., University of Cambridge, 1998; M. Phil., University of Cambridge, 1995; B.A., Saint Mary's College of California, 1994. A significant portion of the research for this Article was conducted while the author was an assistant professor in the Department of Sociology and Criminal Justice at Old Dominion University. The views contained in this Article are the author's own, and do not necessarily reflect the position of Old Dominion University, the Administrative Office, or the federal judiciary. For their insightful contributions to this Article, I would like to thank Joshua Dressler, Becki Fogerty, Sanford Kadish, Emery G. Lee III, Anne Mahle, Nina Rivkind, John Steele, and Scott Sundby. For their excellent work on the manuscript, I would also like to thank the staff of the Washington and Lee Law Review, particularly Travis Christopher Barham, Jeremy Engle, Erin McCampbell, Travis Turner, and Sarah Waszmer. 63 WASH. & LEE L. REV. 147 (2006) A. The Uselessness of the Model Rules ..................................... 179 B. Legal Realism: Applying Model Rules to Real Cases .......... 182 V. Primum Non Nocere: Reasoning by Analogy .............................. 183 A. The Role of Medical Professionals in Terminating Life ........ 184 B. Adequacy of the Analogy ...................................................... 199 1. Equating Doctors and Lawyers ....................................... 199 2. Equating Illness and Execution ....................................... 203 3. Physician-Assisted Suicide or Withdrawal of Treatm ent? .................................... .............................. 207 C. The Torture of Being ............................................................. 210 1. Case Study: Soering v. United Kingdom ........................ 218 2. Death Row Syndrome ..................................................... 222 3. Consequences for W aiver ................................................ 225 V I. C onclusion .................................................................................... 228 There is but one truly seriousphilosophical problem, and that is suicide. Albert Camust L Introduction Lawyers are regularly called upon to make decisions with ethical consequences. In criminal cases, the client's freedom often depends upon the defense lawyer's decisions, and within the arena of capital punishment, the stakes are literally life-and-death. Death penalty representations are, accordingly, inherently fraught with some of the most difficult ethical choices that the lawyer can face. Among the most difficult of these choices is what to do when the death row client wishes to terminate his appeals and to volunteer for execution. The death row volunteer forces the capital attorney to make excruciating decisions about the goals of representation and the allocation of responsibility in legal decisionmaking and to weigh the relative merits of paternalism and autonomy. This Article advances in six Parts. The first, this introduction, summarizes the scope of the article and its key concepts. The second Part, entitled "Lawyers' Nightmares Do Come True: When the Client Volunteers for Execution," reviews three seminal Supreme Court cases that established the modern death penalty, 1. ALBERT CAMus, THE MYTH OF SIsYPHUS 3 (Justin O'Brien trans., Vintage Books 1955) (1942). SWILLING HEMLOCK describes the swelling ranks of death row in the United States and the commensurate need for death row representation, addresses the disorienting ethical universe of the capital volunteer, and analyzes a number of ethical approaches to lawyering. The third Part, entitled "Grasping at Straws: Competence As a Means of Avoiding the Volunteering Conundrum," describes the competence hearing as an illusory solution to the problem of the volunteer. It outlines the legal standards of competence, contrasts legal standards against medical standards, and concludes that competence assessments are ineffectual as checks on the volunteering client. While competence hearings may prevent the overtly psychotic defendant from committing state-assisted suicide by volunteering for execution, they cannot prevent the competent-but-severely-depressed defendant2 from doing so. This Part of the Article also analyzes Smith v. State. The fourth Part, entitled "The Ethics of Killing Your Client," suggests that the ambiguities of the Model Rules allow lawyers to construe their obligations in whatever manner they wish. Because of these ambiguities, the Model Rules fail to provide meaningful guidance to the capital attorney. There are also difficulties in applying abstract Model Rules to concrete facts involving real clients. The fifth Part of the Article, entitled "Primum Non Nocere: Reasoning by Analogy," suggests that some meaningful ethical guidance might be available from outside the profession. It notes that medical professionals are often confronted with analogous decisions and concludes that medical ethics may shed valuable light on legal ethics. This Part of the Article contrasts the roles of physicians and attorneys, compares terminal illnesses and pending executions, and concludes that dealing with the volunteering death row client more resembles physician-assisted suicide than mere withdrawal of treatment. This Part of the Article also discusses Soering v. United Kingdom,3 describes the phenomenon of "death row syndrome," and considers the implications of death row syndrome on a defendant's waiver of appeals. The sixth Part of the Article, the conclusion, recapitulates the principal themes of the argument and concludes that the ethical lawyer should refuse to acquiesce to the volunteering client's wishes, not because the lawyer has paternalistically substituted his or her judgment for that of the client, but because it is impossible to distinguish the will of the client from the situational effects of death row syndrome. 2. Smith v. State, 686 N.E.2d 1264 (Ind. 1997). 3. Soering v. United Kingdom, 161 Eur. Ct. H.R. (ser. A) (1989). 63 WASH. & LEE L. REV 147 (2006) II. Lawyers' Nightmares Do Come True: When the Client Volunteers for Execution About 3500 individuals await execution in America.4 While a handful of these individuals live in the shadow of federal execution,5 ninety-nine percent of America's death row inmates face execution6 by the thirty-eight states that currently authorize capital punishment. In one sense, it is strange that any of these individuals should live in the shadow of the gallows. It is strange because, not so very long ago, the United States was following the same abolitionist trajectory as many other Western nations.7 Like many nations in Western Europe, the United States had restricted the use of capital punishment by the turn of the twentieth century; "the death penalty had become an exceptional punishment[,] ... reserved for only the most serious of offenses, rarely imposed, and regarded as particularly problematic. '8 Following the same pattern as many European countries, the United States seemed to be moving "from sporadic execution to a continuation of death penalties but without executions to suspension or abolition of the death penalty." 9 Indeed, throughout the 1960s and 1970s, the United States appeared