Giving Murderers The Willed-For Option Of “Death”

Putting aside the noxious views of white supremacists, Dylann Roof is as unsympathetic a defendant in the United States as there is. That he has now been sentenced to death will not have come as bad news to anyone, maybe even many death penalty abolitionists.

He was convicted, in a mere two hours, of shooting up a Charleston, South Carolina church, killing nine people in his path who were attending Bible study – and for no apparent reason other than unbridled racism.                                

Assuming that the “reason” for Roof’s shooting spree is not in itself the very definition of “insanity” and given, rightly or wrongly, that the death penalty will remain in place in the United States, one would think that insanity is a pretty good defense to the death penalty.

Yet, Roof, in full character, wrote in his journal: “I am morally opposed to psychology. It is a Jewish invention, and does nothing but invent diseases and tell people they have problems when they don’t.” So, he told Judge Richard Gergel, he would represent himself at sentencing and would not present mental health evidence. In essence – psychiatric mitigating factors were not presented and Roof would not allow any lawyer to make out what was likely his best case for life.

So before the sentencing phase began, Roof appeared at another competency hearing and the judge decided to allow Roof to proceed, albeit with unimportant limitations of where he could stand and whether he could approach judge and jury. This relieved David Bruck, Roof’s assigned trial counsel who is a premier attorney and death penalty opponent ― about whom it has been said that the loneliest place for him is seated “next to one of the most reviled people of this century,” ― of that “loneliness”. It relieved him of the legal obligation (and presumably also his fervent belief) to argue that even Roof should not be put to death for his crimes.

Yes, Roof decided to go it alone in ostensibly seeking to gain a life sentence, rather than death – a feat for which he needed the vote of only one juror (which he did not receive). But by abandoning the insanity “escape hatch,” as it were, we must wonder whether Roof – assuming his competence – actually prefers to die a martyr (martyrdom by lethal injection) rather than suffer a life in prison. Life imprisonment, after all, doesn’t allow martyrdom in that very special way. Or maybe, like Gary Gilmore, Roof believes life in prison is cruel and inhuman, while the death penalty gives him dignity.

Strangely, the law, if only rarely, can insist on counsel for a defendant even if the defendant doesn’t want it. Such was the case when, in 2008, the Supreme Court decided in Indiana v. Edwards that a trial court may insist that the defendant, although having been ruled competent to stand trial, was not competent enough to represent himself – he had to be represented by counsel over his objection. The decision in Edwards came notwithstanding an earlier 1975 Supreme Court decision, Faretta v. California, which held that a person accused of a felony (in that case, literate and competent) could, in fact, make a free and intelligent decision to refuse counsel.

So here is the question: can a defendant who is ostensibly competent to decide, simply and unhesitatingly, that he prefers death to the agony of life imprisonment, nonetheless be incompetent to represent himself to accomplish that result? Can any of us truly say that a decision to die for one’s crimes, rather than sit in a prison cell for the rest of his life, is so crazy as to make him incompetent under the law – so as to allow the court to require that counsel argue for life? Yes, judges need to be careful. They need to protect their court record (meaning, documented proof that they accorded a defendant all of the rights due him) – perhaps even at the cost of depriving the defendant of what he, with apparent sincerity, wants. And there is nothing more permanent than a sentence of death.

Undoubtedly, one suspects that a vast majority of Americans would (or, at least could) conclude that choosing death over (an even terrible) life beyond bars in solitary confinement on death row would be imprudent, and surely religiously unacceptable. But for those who find themselves in the position of having to make a choice between Scylla and Charybdis – life in prison or death – can we tell them that the death penalty is barbaric, given the lifelong alternative? And, being the devil’s advocate here, if they competently choose death, why would they want – and why should they be required to have – a lawyer who is a death penalty abolitionist to the core making that decision for him?

It is surely true that defendants and their attorneys often disagree on tactical choices in litigating cases, e.g., whether to make strategic admissions that may actually gain sympathy from a judge or jury, where a defendant might actually prefer to “admit nothing.” Or whether a defendant should testify in his own defense. It is, however, only in cases which require a strategic decision by a defendant that favors death over life where we can really see the dynamic that raises the question of “who must decide.”