77 Notre Dame L. Rev. 795 (2001-2002)
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 chilling 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.
Richard W. Garnett,
Sectarian Reflections on Lawyers' Ethics and Death-Row Volunteers,
77 Notre Dame L. Rev. 795 (2001-2002).
Available at: https://scholarship.law.nd.edu/law_faculty_scholarship/219