Is death preferable to life in prison?

Before Belgium finally abolished the death penalty in 1996, the country had not executed a criminal since 1950. But in a land where euthanasia is legal, can prisoners opt to be killed rather than serve jail time? That is the question posed by the strange case of Belgian murderer and rapist Frank Van Den Bleeken.

In 1989, Van Den Bleeken raped and strangled 19-year-old Christiane Remacle. Deemed insane, Van Den Bleeken spent seven years in a prison psychiatric ward before being released. Within weeks of leaving prison, he raped three more victims. Van Den Bleeken, now 50, is serving an indefinite prison sentence. Considering himself an irredeemable menace to society, he has refused to apply for parole, and, faced with a life behind bars, resolved three years ago to be euthanised. In September last year, Belgium’s Federal Euthanasia Commission finally granted Van Den Bleeken his death.

On 11 January, Van Den Bleeken was to die. But, on 6 January, the doctors who were to administer death to Van Den Bleeken withdrew from the procedure. Van Den Bleeken will now be transferred to a newly opened psychiatric unit in Ghent.

Should Van Den Bleeken’s imprisonment have prevented his euthanasia? If autonomy is central to designing one’s own exit from this life, why should his being a sentenced prisoner stop a physician-administered death?

But does the psychiatric condition that caused his offending and bars his release also affect whether his desire to die is ‘voluntary’ and ‘well-considered’, as is required by Belgium’s Euthanasia Act 2002? Further, Belgian law stipulates that euthanasia should not be the result of ‘external pressure’, imprisonment being such a pressure. Also, is a life sentence a ‘medically futile condition’ covered by the 2002 Act? Can it be said that imprisonment is a ‘condition’ akin to cancer? Being jailed is an indirect result of mental illness for Van Den Bleeken and not an unbearable symptom of an ‘incurable disorder’.

Indeed, Van Den Bleeken’s wish to die was originally prompted by the state’s refusal to move him to a psychiatric facility to be treated for his violent urges. The European Court of Human Rights found in 2012, 2013 and 2014 that Belgium’s penal system’s ‘structural problems’ had resulted in mentally ill offenders being warehoused in inappropriate settings where they suffered degrading treatment without any prospect of rehabilitation (see, for instance, Lankester v Belgium (Appl No 22283/10)). Van Den Bleeken may just need humane psychiatric care, not death.

In England, Van Den Bleeken would not, of course, be given a state-assisted death. And the Assisted Dying Bill, currently being debated by the Lords, would be unlikely to apply to mentally disordered prisoners such as Van Den Bleeken. The private member’s Bill only envisages physician-aided suicides for those suffering from a ‘terminal illness’ with less than six months to live.

Life without parole

But might death be preferable to life in prison? A YouGov poll in 2014 showed that, although a majority of Britons sadly support the death penalty’s reinstatement, most also consider life without parole worse than execution. Indeed, a whole-life tariff without the possibility of review or hope of release can amount to inhuman treatment (Vinter v UK [2014]). But would a voluntary death allow prisoners to circumvent their punishments? A US court, when approving the force-feeding of a mentally sound inmate who wished to starve, has suggested as much (Caulk, 125 NH 226, 231, 480 A.2d 93 (1984)).

Disturbingly, though, a significant number of US prisoners on death row appear to choose the death penalty over the life penalty. Between 1976 and this year, 1,397 convicts were executed in America; around 10 per cent elected not to appeal and accepted their deaths, according to the Death Penalty Information Center.

The most infamous ‘death-row volunteer’ was murderer Gary Gilmore. In 1977, Gilmore became the first person in America to be executed after a 10-year moratorium on the death penalty. Gilmore, however, was willing to go before the firing squad. When his mother Bettie applied for a stay of execution, the US Supreme Court held that, although his acquiescence may have been ‘unique in the annals of the Court’, Gilmore was competent to waive his right to appeal his death sentence. In his dissenting judgment, however, Justice Marshall argued that a prisoner’s self-determination could not trump the state’s interest in ensuring that a death sentence was not a cruel and unusual punishment because of its potentially improper imposition. Marshall J also doubted that Gilmore, whose mental condition had not been independently assessed, had capacity to waive his appeal rights.

And, as 88 per cent of death-row volunteers between 1973 and 2003 suffered from mental illness or severe substance-abuse disorder, is it ever rational to accept one’s own execution? The portrayal of the lethal injection as a reasonable alternative to agonisingly prolonging one’s confinement by appealing against a capital sentence simply underlines the death penalty’s monstrousness.

Gilmore’s last words were “Let’s do it”. Perhaps, Belgium has concluded that, when it comes to Dignitas-style deaths for its reluctant lifers, let’s not. SJ

Richard Easton is a solicitor at Sonn Macmillan Walker