"When A Killer Wants to Die"

Here is a provocatively titled essay, "When a Killer Wants to Die," by Andrew Cohen, dealing with the Connecticut case of Michael Ross, a convicted killer who says he wants to be executed.  I wrote a law-review article, a few years ago, about "death-row volunteers," in which I tried to draw on some of the "moral anthropology" ideas we've kicked around on this blog.  (In a nutshell, I suggested that, although I oppose capital punishment, I do not believe that standard autonomy-based arguments do a very good job of explaining why lawyers may or should oppose their clients' desire to be lawfully executed).

As Cohen explains, these "volunteer" cases often come down to questions about the inmate's "competency":

There is nothing inherently unusual about a death row inmate wanting to expedite his own execution. Many capital offenders decide for one reason or another to forgo their appeals in order to "escape" the misery of death row. In most of these cases, the competency of the inmate to make this call is unquestioned. The lawyer, convinced that the condemned man's waiver of his appeal rights is "knowing" and "voluntary," signs off on it and the judge overseeing the case does as well, usually after a colloquy in which the judge asks the offender a number of questions designed to ensure competency. The Oklahoma City bomber, Timothy McVeigh, is probably the best-known example of a death row inmate who expedited his own death by ordering a halt to all of his appeals.

But sometimes, a condemned man says he wants to die quickly when he does not have the legal competency to mean what he says. Sometimes, "death row syndrome" kicks in and a capital offender, under duress, just decides to give up and commit suicide by inaction. Sometimes, the prisoner decides he or she is going to toy with counsel and the courts by zig-zagging back and forth between waiving appeals and trying to pursue them. And, sometimes, a man gets put on death row even though his competency was suspect long before his trial. The Constitution requires the government to ensure the competency of a person before execution. But how that happens isn't always neat and pretty.

Another wrinkle in all this, though, is the fact that committed capital-defense lawyers often use an inmate's understandable desire not to pursue further (likely unsuccessful) appears as conclusive evidence of incompetence.  Any thoughts on this problem?

Rick