Autonomies of Scale:
A New York Capital Case Asks Whether Defendants Should be Forced To Exercise their Rights

State courts have disagreed over whether mitigating evidence should be offered when a defendant wishes to waive its presentation, with more courts permitting than barring waiver. One could, and I do, take a principled stand against paternalism in this context. However, I will focus in this piece on confusion between two kinds of autonomy right that can cloud consideration of the issue: pure autonomy and instrumental autonomy.

Let us begin by considering the case for allowing waiver of the right to present mitigating evidence. In an adversary system such as ours, we rely on the competing parties to utilize or give up their prerogatives, as they see fit. Often, the decision to waive a right will be made either as a matter of strategy or as a sensible choice between incompatible values.

For example, a criminal defendant might waive her right to trial (by pleading guilty) in the hopes of motivating the government to seek a less severe sentence in return. Or a criminal defendant might waive his right to call a particular witness to the stand, because that witness is the defendant's child and whose experience of testifying and facing cross-examination could be traumatic. In either case, it would seem inappropriate (and not necessarily even helpful to each defendant) to refuse the waiver and force the defendants, respectively, to plead not guilty and to call the child to the stand.

In a different sort of system, an inquisitorial one, the fact-finder might wish to get at the truth and pursue the evidence accordingly, regardless of what either "side" (pro-suspect or anti-suspect) might wish. For such an investigative system, the goal is an accurate determination of what occurred and what penalty (if any) ought to follow, as understood by a neutral party.

In our own criminal justice process, by contrast, the neutral person -- the judge -- is largely a passive and reactive figure who, absent unusual circumstances, responds to motions by the parties to the controversy. The ultimate goal (or at least a fundamental one among several) may be to arrive at an accurate and fair result. But the competition between the sides is the method of operation, and views that fall outside of the stated desires of either side are accordingly excluded.

Therefore, if neither the government nor the criminal defendant offers an available exhibit into evidence, then the exhibit ordinarily and properly stays out of evidence.

In LaValle's case, the defendant stood convicted of having raped and murdered a schoolteacher who was out for a run when she had the misfortune to encounter LaValle. Prior to sentencing, the defendant could have presented mitigating evidence (that is, evidence that might reduce the degree to which the jury would view him as deserving of death), involving his family history, which may have included sexual abuse.

The defendant, however, refused to offer such evidence because he allegedly felt reluctant to have his family history publicized in court. Once condemned to die, however, he claimed (and still claims) on appeal that he should not have been given the option of waiving his right to offer mitigating evidence. He should have been forced, in other words, to exercise his rights, over his own objection.

One powerful response to the defendant's claim here is that it is not practical to force parties to a criminal case to exercise their rights, especially when some level of affirmative cooperation in that exercise is appropriate. As discussed above, people often waive their rights for good reasons, either strategic or personal, that put the lie to the notion that waiver is categorically against a defendant's interests.

An individual -- if competent -- is generally trusted to know his own interests better than anyone else does. And a corollary of that trust is a willingness to allow the individual to make decisions that may seem foolish or self-destructive to a neutral third party.

Does this argument amount to a claim that the individual has an autonomy right to act in ways that may be against her own interests?

Assistant Attorney General Luke Martland of New York State implies as much by saying, with respect to this case, that the defendant has a right to "determine his own destiny." But the answer is not so simple.

Pure autonomy rights are generally understood as honoring an individual's sovereignty over his own body and his life. Proponents of such individual autonomy generally support the right to decide whether to marry, have children, have same-sex relationships, or live with a terminal illness rather than exercising a right to die.

When we do not directly harm another person, a true libertarian supports our individual choice without passing judgment on its wisdom. The point is to enable personal decisionmaking, rather than to serve some systemic value through the presumptively beneficial choices that free individuals would make.

But those who support waiver of criminal procedural rights are not ordinarily coming from a tradition of pure autonomy and libertarianism. The ability to waive a criminal procedural protection, in other words, is available or not based on considerations regarding maximizing beneficial and fair outcomes within the criminal justice system. We thus do not believe that a death row inmate can waive claims because he has an individual right to dispense with whatever exercise of those rights would have guaranteed.

If an inmate simply wants to be tortured, for example, we do not honor that wish -- he has no "right" to be tortured. And for those rights as to which we do permit waiver, it is similarly not out of a deep respect for the defendant's wishes.

The defendant has no "right" to be convicted, to be punished, or to undergo a trial, appellate, or sentencing process in which he is unfairly doomed to failure, or in which he is subject to race or sex discrimination in the selection of the jury pool. We simply accept that he is best situated to determine his own interests and to weigh them against one another.

It thus rings hollow (and is quite unpersuasive, even if taken at face value) when Justice Scalia asserts in a concurrence in the judgment in a 2000 case, Martinez v. Court of Appeal of California, the importance of a defendant's ability to waive Fifth Amendment rights and confess or waive the right to counsel and represent himself, on the ground that "[a]ny other approach is unworthy of a free people."

Particularly for people convicted of rape and murder, this is not and should not be a "free country" in which rights may be forfeited out of an abiding respect for individual liberty. Indeed, to suggest otherwise is to make a mockery of true individual liberty. But perhaps Justice Scalia, who mocks constitutional rights to love and to live as we please in his jurisprudence, is comfortable with that role.

It is more than ironic, of course, for Justice Scalia to support a rapist/murderer's "right" to waive an effective death penalty defense, as part of what it supposedly means to be a "free people" when he gladly joins the Court elsewhere in denying an innocent, terminally ill patient the right to end his own suffering with the assistance of a physician.

Only a few state courts have thus far accepted the argument that the Eighth Amendment prohibits a death sentence in which known, available mitigating evidence was not offered. The defendant claims that New York State should join them and rule that even over a defendant's objections, an attorney should be appointed to argue strenuously against the execution of the defendant through such evidence.

On the merits, it seems to me, it is not practical to appoint independent attorneys for competent defendants to take affirmative positions opposed to those of both the State and defendants.

More important, however, than the decision to allow waiver, is the recognition that when a defendant is allowed to waive his rights, it is not because of regard for individual liberty as such. It is instead out of a sense that the assertion of most rights is best left as a matter for each party -- and that it is okay, if as a result, a party sometimes decides not to take advantage of every opportunity that the Constitution provides.