Killing Dylann Roof Will Just Make It Worse
January 10, 2017 (Fault Lines) — Convicted white supremacist murderer Dylann Storm Roof is, by many accounts and by all colloquial sentiments, totally crazy. Of course, that doesn’t mean he is insane or incompetent, as a formal, legal matter. Which means that he is currently in the process of trying his best to be sentenced to death so that he can become a self-styled “martyr” for his insane racist cause.
When he is, as is most likely, eventually killed by the government, as was his ideological forbearer, Timothy McVeigh, the only thing most of us will likely feel is queasiness that despite the unimaginably horrible things Roof has done, maybe death should never have been on the table.
Let’s back up. Roof, of course, is the evil “Prince Valiant” who murdered a bunch of innocent people in a nightmare-inducing attempt to start a race war. There’s no defending those actions, and that is coming from someone who defends people for a living.
Roof isn’t interested in defending his actions. He wanted to be caught, he confessed, and, over the repeated objections of the people who were once his lawyers, he is in the process of representing himself at sentencing. His representation, moreover, has so far constituted nothing more than assertions that he is rational and not ill (which is a red flag that he is no such thing). He is, obviously, trying to get the death penalty.
While all of this may be legally permissible, it should not be happening.
There are a number of reasons to suspect that Roof is not a totally rational actor who should be subject to the death penalty, no matter his crimes.
First, the shocking nature of the crime itself suggests that Roof is mentally ill. No sane person would do such a thing. At very least, the kind of person who would do such a thing, cannot in any ordinary sense of the word, be thought of as being “sane” – i.e. having a healthy mind and sound judgment.
There have been other clues as well. Roof’s history, before the killings and while in custody, of speaking with a creepy flat affect, his habit of laughing inappropriately, and his tendency to engage in odd non sequiturs, have suggested that he suffers from some serious illness such as schizophrenia.
Legally, that doesn’t matter. Someone can be either not guilty by reason of insanity or unable to proceed to trial by reason of incompetency. These are distinct ideas. Insanity means you lacked some essential component of rationality at the time of the act, even if you are better now. Incompetency means now, at the time of trial, you are incapable of appreciating what is happening or helping yourself.
The judge presiding over Roof’s trial has repeatedly determined that Roof is competent to stand trial, and it does not appear that anyone has ever argued that he is not guilty by reason of insanity. Competency should thus be the focus.
Competency, in federal court, is a very low bar. In order to be incompetent, the judge must determine “by a preponderance of the evidence that the defendant is presently suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense.” There are therefore two ways in which a defendant can be incompetent – lack of understanding of the proceedings or inability to provide assistance.
In practice, this standard allows profoundly ill people to stand trial. Assume a defendant is severely delusional and maybe even suffering from auditory and visual hallucinations. Very likely, that defendant will still understand the nature and consequences of the proceedings. Competency evaluators will ask that defendant simple questions such as if he knows why he has been arrested, what his attorney’s job is, and what will happen if he is convicted. If he is unsure, the evaluator will provide further information. As long as the profoundly ill defendant can repeat back a rudimentary understanding that he has been arrested and could go to jail, that is usually sufficient. Even the most delusional and ill defendants can pass this test.
On the other hand, the standard requires only capability of assisting the defense. That’s different than wanting to help the defense. In practice, if a defendant has the capacity to communicate with his lawyer or can coherently tell the judge he wants to self-represent, that’s good enough.
The judge in Roof’s case has been extremely careful, and has conducted many hearings and evaluations, but the legal determination that Roof is competent is probably not even close. (I say probably because the actual evaluations are sealed.) Let’s say Roof is severely mentally ill (a safe assumption). He has demonstrated repeatedly his ability to conceive of what is happening, and has spoken coherently to the judge that he wants to represent himself. He has thus passed all of the tests.
That doesn’t mean we should feel good about executing him.
The death penalty is the strongest condemnation we have in our society of a particular person’s conduct. We are supposed to save it for the worst of the worst of the worst. No doubt Roof’s conduct qualifies. But if we even have a sense that he is suffering from a severe mental illness that suggests that, perhaps, he is not the kind of person we should be executing.