Commentary: Roof should not have been allowed to represent himself

By Jules Epstein

The return of death sentences by the jury was inevitable in the case of Dylann Roof, who was on trial for killing nine black churchgoers during a Bible study in Charleston, S.C.

But no one - fan or foe of capital punishment - should take comfort in how this came about; and an understanding of core Eighth Amendment values should make clear that the process and resulting sentence are unconstitutional.

What went wrong first was the decision to permit Roof to self-represent. This flowed from a basic principle of autonomy - just as individuals have the right to the assistance of counsel, so too do they have the right to go it alone or, as some courts have put it, to be the captain of one's ship.

However, nearly a decade ago the U.S. Supreme Court held that, under the Sixth Amendment, "a right of self-representation at trial will not 'affirm the dignity' of a defendant who lacks the mental capacity to conduct his defense without the assistance of counsel. . ." Placing an unskilled person at the helm can only embarrass and harm that individual, according no dignity at all.

The more complex the defense - and there is no defense more complex than that involved in capital litigation - the higher the threshold for self-representation should be. Given the hundreds of capital cases that have been reversed because trained lawyers failed to understand and fulfill the requirements of death-penalty representation, an ill-lettered accused cannot be capable of performing adequately.

But ignored in the decision to let Roof "captain" the penalty trial was an Eighth Amendment analysis, based on principles set forth by the Supreme Court in the last 30 years, that capital cases require "heightened reliability" and that the penalty of death be reserved for those who are proved to be in the class of the "worst of the worst." Not the worst crime, but the worst person who committed such a heinous crime.

Given those commands of the Eighth Amendment, a searching inquiry must be had as to the character, background, and record of the defendant; and a penalty hearing artificially circumscribed to exclude consideration of that information prevents a determination of whether the "worst of the worst" threshold has been met. Yes, Dylann Roof circumscribed the process; but it is not Roof who has the authority or the right to decide punishment.

Courts have come to the contrary conclusion, upholding death sentences where defendants prohibited the presentation of what is termed "mitigation" evidence - the background and character (and in Roof's case mental health) evidence that is essential to the "worst of the worst" classification. But they do so from an autonomy perspective, and not by considering that capital punishment must be a community decision and not one that an accused may accept or achieve by default.

In a society that criminalizes suicide, Roof engaged in a courtroom variant. The death penalty must require more - a fully informed decision based on as complete a body of information as is possible. The adage that we convict people for their crimes but sentence the person was lost in Roof's case. Instead, he was convicted and sentenced solely for his crimes. That violates the Eighth Amendment.

Jules Epstein is the director of advocacy programs at the Temple Beasley School of Law. Jules.Epstein@temple.edu