The Ethics of Stopping the Condemned From Accepting Death

In Oregon, a judge has granted death row inmate Gary Haugen’s motion to dismiss his lawyers after they persisted in taking measures to block his execution. They had declared he was not mentally competent to waive his appeals and allow his own state-decreed death to proceed.

Leave it to lawyers to be convinced that they know what’s best, even when it involves someone else’s wishes about his own life and death.

Is the condemend prisoner who approves of his own excecution insane, or courageous?

In an attorney-client relationship, the lawyer is ethically bound to do what the client wants as long as it is legal and within the bounds of the ethical constraints on the lawyer. A lawyer can render advice and should; a lawyer can explain the legal consequences of a course of action. But substituting the attorney’s judgment for that of the client is taboo…except, all too often, in cases like this one, in which a death row inmate decides that letting justice take its course and accepting the state’s death decree is preferable to rotting in prison.  That, to many lawyers and courts, is sufficient proof of derangement to allow the lawyer to treat his client as a person who is mentally disabled or of diminished capacity, and to do what the lawyer thinks his client would want if he weren’t out of his gourd.

For the convicted prisoner, it is a true Catch-22. If you are sane enough to accept the legal consequences of your crime, your defense attorney is likelyto use that to argue that you are too crazy to make your own decisions. Thus the lawyers representing Haugen, a double murderer, concluded that the 49-year-old was psychotic and suicidal. “It speaks volumes to the psychotic process that is going on here,” said Haugen’s former attorney Keith Goody of Haugen’s death-wish. “Somehow the prosecution is his friend when the prosecution is seeking to have him executed. It makes no sense.”

Of course it makes sense. The decision of a convicted murderer to accept his punishment is responsible, courageous, and rational. When a death row inmate’s lawyers attempt to foil his legitimate desire to die, they are the ones being irrational…and also unethical. Virtually all criminal defense attorneys oppose the death penalty, and long to be the ones to handle the landmark case that ends forever what they consider a barbaric practice . When a client does not share their commitment, however, it is unethical for the lawyer to use the client to further the lawyer’s objectives—the exact opposite of a lawyer’s duty.

When there are independent factors, completely separate from the prisoner’s desire to be executed, that objectively suggest that a client is not capable of making a decision affecting his welfare, then a lawyer should consider treating the client as incapacitated. But the mere decision to save the state time and money while accepting punishment is not proof by itself, as some anti-capital punishment zealots believe. Many convicted murderers were advocates of the death penalty before their arrests. In such a case, remaining true to that belief indicates integrity, not madness.

Virginia has it right. In a 1999 legal ethics opinion, Virginia confirmed that it is a lawyer’s ethical obligation to follow a client’s wishes when he has decided to stop appealing his own death sentence. It appears that Oregon is getting it right too.

11 thoughts on “The Ethics of Stopping the Condemned From Accepting Death

  1. Jack,
    Without splitting hairs too finely, one of these things is not like the others:
    “The decision of a convicted murderer to accept his punishment is responsible, COURAGEOUS, and rational.”

    Accepting death is responsible and rational, but not courageous (in this case, anyway). The courageous thing would have been not to commit a double murder so as not to be forced to make peace with his untimely demise. Should that have proven too difficult, true courage would have at least merited taking his own life instead footing everyone else with the bill.

    Sorry, it’s been a bad day and I don’t feel like giving props to anyone who hasn’t done anything to earn them. A man like this is worthy of pity, not respect. That being said, every other word in your post is right on. Best!


    • I think accepting one’s fate and just punishment is courageous. Murderers and cutthroats can be courageous; courage is uniquely divorced from other virtues. The public pays a lot of money to keep condemned men alive and going through appeals; passing on one’s rights and accepting death as something earned by one’s conduct is, it seems to me, admirable. And isn’t accepting death rather than fighting for every last breath, no matter how lousy those breaths may be, a brave thing to do? Can’t a miscreant die courageously and nobly, like Jake Spoon in “Lonesome Dove”?

  2. This is along the lines of the story of a condemned outlaw back in the 1880’s in the old west. When walking to his execution, a number of gabby local journalists accosted him for a last statement. Disdainfully, he told them. “I came here to die. Not to make speeches.” Today, he might have told his lawyers the same. Even a hardened criminal has the right to die with his head held up as he makes his last penitence.

  3. For some reason this made me think of the arguments for or against assisted suicides. The same people who are for assisted suicides so as to not prolong suffering are against someone accepting a death sentence over a lifetime of punishment. But maybe that’s apples and oranges.

  4. I will just quote the comedian Ron White.

    I heard this one guy protesting an execution, saying the guy was too crazy to go to the chair. [imitates protester] “Well, he’s so crazy that he won’t know he’s being executed!” [as himself] “So, what are we arguing about?” I mean, if he won’t know & it’ll make me feel better, strap him in!

  5. I could understand any reluctance by the court to decide that the condemned could drop the appeal.

    The idea that criminal defendants’ legal actions adverse to themselves, such as guilty pleas and refusing to notice appeals, if done while they are mentally incompetent, are invalid, is older than our Constitution. I recall a case where a dude accused of strangling a kid blurted out that he was guilty. It took a while before the courts found him sane, and thus accepted his statement as true.

    It was prudent for the lawyers in this case to make sure their client was legally competent to stand trial in the wake of his decision to not appeal. However, once presented with evidence that he was competent, arguing against it went too far.

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