Death-row "volunteers"

The indefatigable Howard Bashman links to a recent decision by the U.S. Court of Appeals for the Third Circuit, dealing with death-row volunteers and questions of their competence to volunteer for execution (or, more precisely, to end legal efforts to stop their legally authorized execution).

When I was in law practice, a client of mine volunteered for execution.  That is, he wrote to the prosecutor and the court and expressed his desire to end all proceedings and be executed as soon as possible.  He changed his mind, though, and his death sentence was eventually vacated.

I've been interested in the death-row-volunteer issue since reading "The Executioner's Song" in law school, and wrote this article a few years ago, exploring my concerns about the standard capital-defense practice of challenging the "competency" of death-row inmates who volunteer for -- or, give up resisting -- execution.  The paper might be of interest to MOJ readers, in that it tries to bring moral-anthropology claims to the conversation about volunteers.  Here is the abstract:

What should lawyers think about and respond to death-row volunteers? When a defendant accused of a capital crime attempts to plead guilty, or instructs his lawyer not to present a particular defense; when a convicted killer refuses to permit the introduction of potentially life-saving mitigating evidence - or even urges the jury to impose a death sentence - at the sentencing phase of a death-eligible case; when a condemned inmate refuses to file, or to appeal the denial of, habeas corpus and other post-conviction petitions for relief; when he elects not to object to a particular capital-punishment method, to call into question his own competence to be executed, or to file an eleventh-hour, last-ditch appeal citing newly discovered evidence of his innocence -what should lawyers do?

These are not questions of merely professional interest, narrowly conceived, for lawyers and judges. That said, the death-row volunteer is of particular interest to lawyers because he poses particularly pressing problems for lawyers. It is suggested in this paper that something is missing from our thinking and conversations about the death-row-volunteer problem: Our arguments - which sound primarily in the register of choice, competence, and autonomy - reflect and proceed from an unsound moral anthropology. That is, they proceed from a flawed account of what it is about the human person that does the work in moral arguments about what we ought or ought not to do and about how we ought or ought not to be treated. The unfortunate result is that the professed commitment to human dignity that drives and sustains so many capital-defense lawyers is often undermined by these same lawyers' responses to death-row volunteers.