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September 13, 2006

Do you lose your right to die if sentenced to death row?

The Ninth Circuit, as I recall, wrote a powerful opinion about a decade ago championing the right to die for certain individuals.  However, today in Comer v. Schriro, No. 98-99003 (9th Cir. Sept. 12, 2006) (available here), the Ninth Circuit essentially denies that right to an Arizona death row defendant who is eager to waive all his appeals and be executed.

I discussed Comer here last month when the Ninth Circuit denied the defendant's motion to dismiss his long-pending habeas appeal in order to allow the state of Arizona to proceed with his execution.  Today we finally get a ruling on the merits, though I am certain this will not be the last judicial word on this case.  (Indeed, I see the big question going forward in Comer as being whether an en banc hearing will come before a possible cert grant.) 

Here are the highlights from the start of of the majority opinion in Comer:

We agree with the District Court that Comer competently and voluntarily waived his habeas appeal right. By upholding Comer's waiver, however, we would be permitting the State to execute Comer without any meaningful appellate review of his previously filed federal habeas claims, which would amount to a violation of the Eighth Amendment to the U.S. Constitution.  We therefore deny the State's and Comer's motions to dismiss the appeal and proceed to review the District Court’s denial of Comer's federal habeas petition.

We hold that Comer’s sentence was invalid and hereby grant the writ of habeas corpus based on the violation of Comer’s due process rights that occurred when he was sentenced to death while nearly naked, bleeding, shackled, and exhausted.

Here is how Judge Rymer's partial dissent begins:

We need to — and may only — decide one question: whether death row inmate Robert Comer is competent to withdraw his appeal from denial of his petition for writ of habeas corpus and has done so knowingly and voluntarily. All of us agree that the answer to that question is yes, based on what the district court found following a Rees hearing that we ordered.  This means that this case is over, because Comer's waiver of further review of his habeas claims leaves no live controversy remaining between Comer and the State of Arizona.

Nevertheless, the majority reverses on the merits and orders the writ to issue.  In the doing, it thumbs this court's nose at the United States Supreme Court, which made clear in Gilmore v. Utah, 429 U.S. 1012 (1976), that courts lack jurisdiction to consider unresolved constitutional issues underlying a death sentence when the defendant competently and voluntarily waives his right to pursue an appeal; at the district court, which went all out to conduct a comprehensive evidentiary hearing and issued an extraordinarily detailed and comprehensive, 90-page opinion setting forth its findings and conclusions on the competence and voluntariness of Comer's decision; and at Comer himself, who has repeatedly, competently and intelligently tried for five years to choose what he wants to do.

I dissent from this raw imposition of judicial power.

September 13, 2006 at 02:03 PM | Permalink


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The majority's holding is one of the most ridiculous I've seen. As I understand it, if an inmate is competent to waive his rights, there is no "case or controversy" for the court to decide (i.e., no one has standing to litigate a habeas petition in the inmate's stead). So how can the Ninth Circuit conclude that an inmate must, as a matter of constitutional law, have his habeas claims reviewed on appeal over his objection? I'm beginning to warm up to the calls to split (if not dissolve) the Ninth Circuit.

Posted by: Steve | Sep 13, 2006 4:35:01 PM

professor berman:

i am a defense attorney and a longtime admirer of your site.

i agree with the tenor of your post. it would appear that the 9th circuit is on shaky legal ground in its ruling in comer. as the dissent suggests, once the court decides that comer was competent and that he knowingly and voluntarily waived his right to habeas review, it would appear that there is no longer a case or controversy.

more broadly speaking, however, your comparison between the comer case and the "right to die" cases, seems a little glib. surely the right to kill oneself (or the right of a terminal individual to employ a consenting doctor to help that individual effectuate his own death) is not the same as the right to have the state kill you in its name.

when the state executes an individual, that killing has an expressive moral force that extends beyond the individual -- it implicates the criminal justice system, the state, and the citizens who, collectively, comprise that state.

to put it another way, if comer had never been found guilty of any crime, would he have the right to have the arizona d.o.c. strap him to a gurney, wheel him into the execution chamber at the state prison in florence, and inject him with lethal chemicals? i dont know of anyone advocating a right to die that would extend so broadly.

Posted by: dm | Sep 13, 2006 5:00:41 PM

Fair points, dm, though please know I meant to be a bit glib --- as well as thought-provoking --- in my comments on this decision. I never fully understand extreme "culture of life" OR "death is different" attitudes from either the left or the right. My reaction to the Ninth Circuit's work today reflects this reality.

Posted by: Doug B. | Sep 13, 2006 5:18:30 PM

this is a bit of lark and certainly not based in any law, but might one argue that the comer opinion makes some sense not because "death is different," but rather because the eighth amendment is different?

if the criminal law has an expressive moral force that extends beyond the defendant to society at large (see my post above), then whenever a defendant waives his right to appeal (and vindicate) a constitutional violation, we are all injured. of course, the supreme court has said that the social injury that we experience does not give rise to standing.

but arguably the right against being subjected to cruel and unusual punishment implicates the state and its citizens in a way that few other rights do. the eighth amendment not only incorporates formal individual rights within an adversary system, it is also an expression of a "national consensus" regarding the "evolving standards of decency" of american society (and as recent cases suggest, the evolving conscience of the world community). in that sense, might one argue that more than most constitutional protections, the cruel and unusual punishment clause is about "who we are," not what rights the defendant is entitled to?

if, tomorrow, a renegade prosecutor sought and obtained the death penalty against a juvenile offender and that offender dropped his appeals, would the supreme court, bound by precedent, allow that execution to go forward despite the obvious Roper violation? almost surely it would. but does this hypothetical make the Comer decision seem any more reasonable (albeit unsupported by law)?

Posted by: dm | Sep 13, 2006 8:37:30 PM

Just an interested citizen.

Judge Ferguson writes: "The defendant is not taking his own life, he is coopting the power of the state’s capital punishment system to kill — a power that must only be wielded in accordance with the Constitution’s fundamental protections. The people’s interest in justice, which forms the basis of the state’s power to execute, should not be so easily commandeered. The right to die is not synonymous with the right to kill."

This quote is from Decision of the Day blog. I agree totally. I disagree with the notion that there is no case or controversy. As the above poster says, the 8th Amendment is different (that is why it is the 8th and not the 7th or the 9th). To pretend that it is somehow the same as all the other amendments is just plain bogus. It has different words and different number and implies and advances different rights. Why this is not obvious I cannot understand.

I would go on step further than the judges in the majority. I would say that it is not merely the people's interest in justice that lays the foundation, but the Justice System itself that has an interest. To argue that there is no case or controversy remaining is to believe in some non-factual way that the Justice System as a administrative and real entity is purely neutral. It is not; nor was it ever intended to be. How can the Justice System safeguard rights (which it does when it declares something unconstitutional) and claim it is neutral? If the criminal justice system itself does not have an interest in the case or controversy than the whole thing serves no meaningful social function at all. Indeed, the very notion of the courts as a "co-equal" branch of government has simply disappeared. This is part and parcel with the notion of "substantive due process". If due process is not being served, and the judges hold that it is not being served, then a case or controversy exists not between the two parties in the case but between the Courts (as a systemic entity) and one of the parties to the case (as with contempt). The mere fact that the defendant in this case says "well, I don't care that my rights were violated I wanna die" cannot end the case. If does, then there are no such things as rights as a matter of res. For rights by definition do not merely adhere to the individual but to society and to the protectors of those rights. This is why there is a US Constitution. If rights adhered only to the individuals the need for a constitution would be moot and our founders engaged in a worthless and pointless act (other than to give historians something to babble about).

So I would argue that it is not merely the citizens that have an interest in justice but the Justice System as well. (Which, one might hope, be why it is called that.)

Posted by: Daniel | Sep 14, 2006 4:03:43 PM

Howard Bashman at How Appealing (a great blog) asks some questions. Let me take a stab at answering them.

"If the Eighth Amendment prohibits a state death row inmate from exercising his right to knowingly and voluntarily withdraw a federal habeas challenge to a death sentence, does a federal court within the Ninth Circuit have an affirmative obligation when reviewing a habeas challenge to a death sentence to consider all possible arguments for setting aside the sentence, whether or not raised by the inmate?"

Only to the extent of the record before it. Under the notion of co-equal branches of government the investigative duty begins with the executive branch and/or with the plaintiff. The mere fact that the Judicial branch has an interest in the controversy cannot be equated with the use of investigative powers. That is by definition of the whole notion of separation of powers. If the Judicial branch could conduct factual investigates beyond what is one the record before it, that would usurp the role of the other branches and of the individuals. As I tried to point out in my earlier post, while the Judicial branch may in theory be neutral in regards to what cases are brought before it and the outcome of those case once begun, it cannot be neutral in regards to the process by which those cases occur once they are opened within its jurisdiction.

"If a state death row inmate becomes a death penalty volunteer before ever filing any federal habeas corpus action -- and as a result no federal habeas corpus action is filed by the inmate -- must the federal courts nevertheless affirmatively determine that no Eighth Amendment violation exists before the state may carry out the death sentence?"

No. See above answer.

"And, why should this limitation on the right of a potentially-prevailing litigant's ability to withdraw a federal court claim be limited to death row inmates?"

It should not, but only again to the extent of the record before it. As I see it, the role of the courts here is purely defensive; it is not offensive. It is not the role of the courts to "root out injustice" but to determine what is justice based upon the record before it. However, once a case or controversy has been started, it is not the role of the courts to "turn a blind eye" either. Once the process is started, it has its own momentum beyond the sole power of either the plaintiff or the defendant to stop it.

Posted by: Daniel | Sep 14, 2006 4:47:43 PM

Suffice it to say that I could not disagree more with Daniel. He's really arguing for an amendment to Article III of the Constitution (as opposed to straightfoward application of 8th Amendment principles).

Regardless of the fact that a death sentence may have been imposed in violation of the Constiution, it is most certainly NOT the right nor the obligation of an Article III court to review a record and find reversible error where the defendant-inmate does not want federal court review of his claims.

Posted by: Steve | Sep 15, 2006 12:51:46 PM

Hello. I came across this site by asking google an important question. Its a personal question that is affecting someone i love. I am not a lawyer. In the supreme court they voted 4-5 against the death penalty for minors under age 15 i believe,in certain states. Wouldnt death be unconstitutional for all life....Denying one liberty and pursuit of happiness seems resonable for intentional murder. But in fact: if a murder has not been committed, would not then that be the state (whom we all know allows much beyond the media eyes in our prisons) indeed; commiting ,when a murder has not indeed been ...a double by standard for the poor and what do we teach people who may get themselves into trouble while they watch oj simpson walk,what justice is this,indeed none. one wk from today someone i love goes on trial,the state atty wants to sentence him under the re-offender act. In jail five months and has not had a lawyer to talk to or wk on his case,just being appointed a lawyer by the state a few wks ago. thank god jesus christ does not hold against us our past points. and the wolfs come to tear and accuse,break every law in the book,awe;but they do not have to follow the law,what does one ever have to believe in but something greater than this corrupt system put there ;for good reasons,but its not available to have no charges filed for those whom do not belong to certain clubs and organizations. What is available to someone with out no money for a good criminal lawyer? Indeed the state has regressed back to witch hunt days,what have we learned,nothing. Kill em. cause we can.

Posted by: lucky | Oct 9, 2006 4:30:54 PM

im sorry my sentance was lacking in two words. when the united states gives someone the authority to give death and life sentances,when indeed; a murder has not been committed,is that not indeed,committing murder....yes.

Posted by: lucky | Oct 9, 2006 4:38:25 PM

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