Should a Defense Lawyer Have to Decide How His Client Should Die?

Legal ethicists are alarmed by a recent federal appeals court ruling that requires attorneys to suggest alternatives to the lethal injection procedures they deem unconstitutional.
Trent Nelson/AP

May a court compel a defense attorney to breach her ethical duties to her client in a death penalty case? More precisely, when an inmate's counsel is asserting that a state's lethal injection procedure violates the Eighth Amendment's prohibition against "cruel and unusual" punishment, should she be required to suggest an alternative? 

However you phrase it, this profound question has arisen in Missouri after a group of prisoners challenged the state's dubious lethal injection protocols, and the 8th U.S. Circuit Court of Appeals issued a January ruling denying them relief.  Those prisoners have now asked the United States Supreme Court to accept their case for review, arguing that the 8th Circuit plainly misinterpreted the Supreme Court's 2008 ruling in Baze v. Rees.

The idea that judges would force defense attorneys to do the government's job of identifying viable lethal injection options has alarmed legal ethicists. Last week, for example, the folks at the Ethics Bureau at Yale Law School urged the justices to overturn the 8th Circuit's ruling because it "flies in the face" of a lawyer's obligations to her client.  Neither the Sixth Amendment, the Eighth Amendment, nor the Supreme Court's ruling in Baze demand such a result, they argue.

At first look, this dispute seems highly focused upon a narrow strand of death penalty law—after all, the 8th Circuit's dubious interpretation of Baze is not (for now, anyway) binding in most states that still impose the death penalty today. But the premise behind the embattled 8th Circuit ruling—that the defense must assist the government in imposing a particular sentence—can be applied in a number of settings to create a wedge between lawyer and client.

The Ruling

The 8th Circuit's decision on January 24th, in a case styled In re Lombardi, is one of many rulings the court has recently had to issue as it seeks to bring order to the chaos that now exists over Missouri's execution methods. The reasons for this chaos are long and complicated, but the thing to know is that a federal trial judge gave defense attorneys permission to get basic information about the new (and largely untested) drugs that are to be used in upcoming executions, and the 8th Circuit overturned that ruling.

Attorneys didn't need to have access to that information because it was "not relevant to any claim" the defendants could make under the Eighth Amendment, the 8th Circuit held in Lombardi. Why? Because, the court concluded, any such constitutional claim would have to include an allegation by the defense "that the risk of harm arising from the State's current lethal-injection protocol is substantial when compared to known and available alternatives." According to the 8th Circuit, the reason the defense attorneys had no right to access the drug information was because they did not "allege that a different lethal-injection protocol, or a different method of execution (e.g., lethal gas, electrocution, or firing squad) is more humane." 

The federal appeals court majority came to this conclusion by interpreting the Supreme Court's decision in Baze. Here is the link to the 8th Circuit's ruling, and here is the heart of its rationale:  

Where, as here, there is no assertion that the State acts purposefully to inflict unnecessary pain in the execution process, the Supreme Court recognized only a limited right under the Eighth Amendment to require a State to change from one feasible method of execution to another. The controlling opinion of the Chief Justice in Baze provides that if a State refuses to adopt a readily available alternative method of execution that would significantly reduce a substantial risk of severe pain, then “a State’s refusal to change its method can be viewed as ‘cruel and unusual’ under the Eighth Amendment.” 553 U.S. at 52 (plurality opinion) (emphasis added in original).

In sum: “A stay of execution may not be granted on grounds such as those asserted here unless the condemned prisoner establishes that the State’s lethal injection protocol creates a demonstrated risk of severe pain. He must show that the risk is substantial when compared to the known and available alternatives.Id. at 61 (emphasis added in original).

But the Supreme Court in Baze was not confronted with the situation the 8th Circuit confronted in the current Missouri case. In Baze, the justices looked at a Kentucky case in which two death row inmates challenged that state's lethal injection protocols—but in that case, they argued that there was at least one alternative procedure more likely to generate a "humane and constitutional" execution.  A fractured court held that the two Kentucky prisoners could not successfully challenge the state's injections protocol merely by citing "a slightly or marginally safer alternative" that the state had chosen not to employ.

Such an alternative, Chief Justice John Roberts wrote in his majority opinion in Baze, must be "feasible, readily implemented, and in fact significantly reduce a substantial risk of severe pain." What no justice ever claimed in Baze, however, was that it was the constitutional duty of the death row inmate to come up with an alternative method of execution as a condition of making an Eighth Amendment challenge. That duty is something the 8th Circuit majority in Lombardi invented from the penumbras they perceived as emanating from Baze so that they could protect Missouri from having to disclose information about its lethal drugs. 

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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