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April 8, 2007

"Give Them What They Want"

As Natalie Merchant and Michael Stipe put it, "Hey, Hey, Give Them What They Want."   That's my reaction to this AP story out of Kentucky:

Like scores of inmates in other states, Marco Allen Chapman wants to go ahead with his execution after admitting he brutally killed two children and left their sister and mother for dead.  What makes Chapman's case groundbreaking, lawyers say, is his decision to waive trial and sentencing by a jury, and then nearly beg to be sentenced to death....

On Thursday, the Kentucky Supreme Court is set to hear arguments on the legality of Chapman's request, part of the automatic appeals process in all death penalty cases.  The case has the unusual twist of putting prosecutors and Chapman on the same side arguing for the death sentence while Chapman's court-appointed defense attorneys seek to stop the lethal injection....

Chapman, who has turned down multiple interview requests, pleaded guilty in December 2004 to killing 7-year-old Chelbi Sharon and 6-year-old Cody Sharon in their home in the northern Kentucky community of Warsaw. Chapman also admitted stabbing 10-year-old Courtney Sharon, who survived, then raping and trying to kill their mother, Carolyn Marksberry, during the 2002 assault. A judge granted his request to be sentenced to death....

Chapman's court-appointed attorneys, Donna Boyce and Randall Wheeler ... argue that the trial judge mishandled the case and that Chapman was depressed and seeking to use court proceedings to commit suicide. They want a new sentencing hearing after Chapman has been treated for depression. "Marco Chapman is committing suicide," Boyce and Wheeler wrote.

Prosecutors' briefs say Chapman was found competent multiple times. "The fact of the matter is that preferring death over life imprisonment is not state assisted suicide, just because death penalty abolitionists like to call it that," Assistant Attorney General David Smith wrote.

April 8, 2007 at 12:37 AM | Permalink


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I was hearing a different tune. Sounds a little like the Executioner's Song to me.

Posted by: Adam | Apr 8, 2007 2:27:55 AM

Interesting. How is it not state assisted suicide when the state is granting someone's wish to be killed? It seems very clear to me. The more honest question is whether state assisted suicide is legal in this case.

Posted by: | Apr 8, 2007 7:53:52 PM

Prof. Berman, could you clarify why, in this circumstance, lawyers are permitted to override their client's wish? Surely in no other context of the lawyer-client relationship can a lawyer ignore or disobey the command of the client. So why here? (Doctrinally, not just under the "death is different" card.)

Is there actual doctrine stating that a lawyer for a capital prisoner can continue to pursue relief even if the prisoner doesn't want it, or expressly forbids the lawyer from doing so?

Or does the only doctrinal "hook" consist of the lawyer having to make the additional argument that the client is not mentally fit to make such a decision as to submit to execution?

Thanks for any clarification you can provide.

Posted by: steve | Apr 8, 2007 8:27:33 PM

Steve, you have the basics in hand: typically, a lack of competence is asserted when lawyers seek to press appeals that the client resists.

As for this being "state assisted suicide," I think one needs to focus on the reality that the state has opted to make death an eligible punishment for the crimes the defendant has committed. In my view, the fact that the defendant is prepared to accept this punishment without any resistance does not make this state-assisted suicide anymore than an LWOP imprisonment term accepted by a defendant is "state assisted kidnapping for life."

Or, let's take another punishment. Are folks prepared to say that, if and when a defendant requests and is given a punishment of community service, we have to worry aout a case of "state assisted slavery"?

I understand why there is always so much worry about state killing, though I continue to worder why there is so little worry about locking humans in tiny cages for long perios of time.

Posted by: Doug B. | Apr 9, 2007 8:11:31 AM

In a nutshell prison was invented as an alternative to capital punishment. Jails were used for pretrial detention. The sanctions were fines, public humiliation, corporeal and capital punishment. Public humiliation, corporeal and in some states capital punishment have been replace by incarceration in prison for a year to LWOP.

Some states have tried public humiliation for DUI but gave it up fairly quickly because of public opposition.

Posted by: John Neff | Apr 9, 2007 8:37:10 AM

Thanks for the clarification. Given that, I don't see how this case is that much different from "volunteers," that is, inmates who don't challenge their execution (which is not a rare occurrence). If Chapman had merely said, "Nope, I don't want to challenge my execution," this would seem to be permitted. But because he's *vehemently* seeking execution, it becomes a more troublesome case? Chapman also seems to be seeking execution for reasons that are at odds with the reasons for not executing the insane: he's aware of what he did, he feels extraordinary remorse, and he wants to be executed because of it. Those factors are entirely contrary to the reasons SCOTUS laid out in Ford v. Wainwright for not executing the insane (an inability to know why one is being executed, etc.). So I guess I don't really see how this is that much different than the mine run of capital cases where a prisoner doesn't wish to challenge the execution; furthermore, as long as the doctrinal hook is incompetence to be executed, it seems as if Chapman doesn't qualify for that characterization.

Posted by: Taylor Reynolds | Apr 9, 2007 11:40:50 AM

There is nothing inherently wrong with state-assisted suicide. Even if there is not a fundamental right to it, there is no constitutional prohibition against states helping people kill themselves, and no federal law (constitutional or not) prevents states from doing so.

Posted by: S.cotus | Apr 9, 2007 12:20:25 PM

What is worrisome is that if someone wants to commit suicide but wants 15 minutes of fame first, it would be too easy, and so much for deterrence. This could become a fad and Columbine-like shooters might opt to not kills themselves but instead elect to have the state do it rather quickly.

Posted by: George | Apr 9, 2007 4:59:04 PM

Why can't we just let this turkey get offed? This is America. So long as he is competent, respect the convict's will, and let him go. These attorneys seem to be officious intermeddlers.

Posted by: federalist | Apr 9, 2007 5:14:27 PM

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