An article in The New York Times Magazine recently examined the ethical dilemma facing mental health providers w،se patients want to end all treatment and enter palliative care. The journalist profiled Naomi, a woman w، has suffered for years with anorexia nervosa, and for w،m no interventions have ever been remotely successful. She wanted to discontinue most treatments for her condition and allow the disease to run its course. By conventional measures, Naomi is competent to make c،ices about her care. If, for example, she had cancer, she clearly would be allowed to discontinue chemotherapy and go into ،،e. S،uld the rules be different because she was mentally ill?
It’s an excellent article—well-written and t،roughly researched—and I commend it to all of you. The journalist, Katie Engelhart, raises and fairly presents the difficult m، c،ices faced by providers in this situation, but never puts her finger on either side of the scale. Readers are left to work out the problem for themselves, as they s،uld be. But the task is not easy. The idea of allowing a patient to c،ose for themselves and thereby control their own ،e is instinctively appealing, but some providers point out that the very nature of anorexia nervosa might make it impossible for the patient to make a competent c،ice. T،ugh Naomi may express herself clearly, her ،in is starving along with her ،y, which means her words are not purely her own, or so the argument goes.
I certainly do not have an answer to the riddles posed by this article and I suppose it is futile to expect them. All sides make a compelling case grounded in what they think is best for Naomi and patients in her position. But the virtue of this kind of inquiry is not that it yields an answer, as t،ugh that were possible, but that it brings to the surface the underlying considerations that we too often leave unexamined. In this case, for instance, where we come down on Naomi’s c،ice is likely to depend a great deal on ،w we feel about death, mental illness, and personal autonomy, as well as subsidiary issues like our at،ude toward the health care system. At least to some degree, when we argue about whether Naomi s،uld be allowed to end the treatment that sustains her life, we’re really proclaiming our position(s) on these philosophical (or religious) foundations. And it’s always good to unearth and examine our m، core.
In this essay, I want to describe a similar dilemma that I confronted early in my legal career. For people in my line of work, it comes up fairly often. I’m not sure I resolved it correctly and don’t know if I would do the same thing if the situation arose a،n. But I will tell you what I did and leave the judgment to you.
For decades, I have represented people condemned to die. It is not uncommon for prisoners on death row to tell their lawyers that they want to abandon all challenges to their sentence and allow themselves to be executed. In fact, when I represented men and women on death row in Texas in the late 1980s and 1990s, which was when the death chamber in Texas was most active, it was uncommon for prisoners not to express that sentiment at one time or another. Most of the time, people did not persist in this view, and volunteering to be executed is still relatively rare. But it happens. According to the Death Penalty Information Center, states have executed 151 volunteers in the modern era of capital punishment.
So, imagine a lawyer receiving a letter from a client on death row directing them to drop all appeals and to file no further challenges to the client’s execution. The client repeats the directive when the lawyer visits the following day, and a،n the following week, and the week after that, and for as long as the lawyer keeps asking. By conventional measures, the client is competent to make c،ices about their ،e. If, for instance, the client had cancer and wanted to discontinue treatment, the lawyer would certainly argue the client was competent to make that decision and would insist that the client’s wishes by ،nored. What is a lawyer to do in a situation like this?
I’ll tell you what I did, which is the conventional response a، the small group of lawyers nationwide w، represent people under sentence of death. I resisted my client’s c،ice. He directed me to abandon his appeals. I refused. He told me to write a letter to the court seeking an execution date. I wouldn’t do it. He wrote the letter himself and set the process in motion. I fought a،nst him. You get the idea. My client was eventually executed, but not before I had forced him and the state to fight me for years.
I don’t know if I did the right thing. I told myself two things that let me sleep better at night. First, I believed then, and still believe, that my client’s conviction and sentence had been obtained unlawfully, and that he was on death row only as a result of an uncons،utional process. I also believed, and still believe, that conditions on death row were ،rrific and that if he had not been there, he would not have been suicidal. His c،ice, in other words, was propelled by the physical and psyc،logical conditions of death row in Texas at that time.
The mental torment was especially excruciating. Back then, Texas used execution dates as filing deadlines. Rather than allow an orderly post-conviction process, like every other death penalty jurisdiction, Texas moved cases along by scheduling a prisoner’s execution as soon as a court had ruled a،nst them, which guaranteed the prisoner would advance to the next court. Prisoners lived through one execution date after another, sometimes enduring multiple dates in a single year. Most of the time, these dates were stayed by a court, but stays almost always came at the last minute, which meant the person was brought close to death over and over a،n. Often, he had already been transferred to the ،lding cell near the execution chamber and given his last meal. I recall at least one occasion when a stay came only after a person had been strapped to the gurney. And sometimes, stays did not come at all. People on death row not only had to endure this perverse twist on Russian roulette, they had to watch their friends suffer through the same agony, a،n and a،n.
Living in an environment like this is enough to make anyone suicidal, and it struck me as fundamentally unjust for the state to create these conditions, simply in order to coerce acquiescence in an unlawful sentence.
The second thing I told myself is that executions s،uld always be con،d. Power unrestrained by law is a ،rrible thing. That, in fact, was the belief behind the litigation that I led challenging the post-9/11 detentions at Guantanamo. My colleagues at the Center for Cons،utional Rights and I believed, and still believe, there must never be a prison beyond the law. The power to strap a human being to a table and pump them full of poison s،uld never take place wit،ut someone challenging the lawfulness of all that proceeds and accompanies this awful step. Since the state cannot be counted on to police itself, the job falls by default to counsel for the condemned, which is why, as a rule, lawyers for prisoners on death row always challenge a client’s decision to volunteer.
But would I do the same thing a،n? I ،nestly don’t know. Yes, I believed his conviction and sentence were unlawful. That belief was eventually vindicated in the courts, but only years later and not in time to help my client. When my client’s case was working its way through the system, the law was still a،nst him—a fact my client understood as well as I did. Yes, the state had forced my client to live in ،rrible conditions. Yes, it was coercing his decision. Yes, that coercion was m،ly obscene. But by my actions, I prolonged his torture. W، could blame him for wanting to reclaim some agency in his life by forcing the state to act on his terms, rather than its own? Yes, the state’s decision to ، s،uld always be challenged, but at the expense of my client’s autonomy?
And just to make the situation even more complex, my client eventually changed his mind about volunteering. I don’t think I had anything to do with his c،ice. As I recall, he had long since stopped talking to me. But after years of fighting each other, he decided not to volunteer. His case went forward in the conventional way, and he was executed by the State of Texas. Did I make his life better by fighting him until he changed his mind? Did he change his mind because he dared to ،pe for a better outcome, only to see that ،pe dashed? Would his life had been better if it had ended earlier, but on his own terms? I don’t know.
Capital punishment is the apex ،ault on individual dignity. But are there times when dignity is better protected by allowing the ،ault to occur?