The Right to Die in Prison

January 7, 2015

by Theo Schall

 

Earlier this year, an inmate serving a life sentence in Belgium petitioned to either be transferred to a mental hospital or allowed to receive a mercy killing. The inmate, Frank Van Den Bleeken, is a serial rapist and murderer who argued that the psychological issues linked to his crimes had not improved, causing him to suffer unbearable pain in inhumane conditions. In a late reversal, the Belgian justice minister just announced that Van Den Bleeken is to be moved to a new psychiatric treatment center rather than euthanized, but the case remains a challenging one.

 

European laws do not permit the death penalty, but euthanasia is legal in Belgium. While it’s used primarily for those with terminal illness, legal euthanasia has expanded to aid those suffering from intractable psychiatric conditions. Van Den Bleeken’s case is important because it’s the first time an inmate without a terminal condition has petitioned for euthanasia. Reports suggest that many other inmates may follow his example, which critics worry may establish a different kind of death penalty as the norm. Comments that Van Den Bleeken made to a documentary crew in 2013 suggest that much of his suffering is incarceration itself: “I’m in my cell 24 hours a day. That’s my life. I don’t feel human here. What do I have to do? Do I have to sit here and waste away? What’s the point in that?” If Van Den Bleeken were allowed euthanasia, it would set a precedent, effectively giving all mentally competent inmates serving life terms a choice between prison and death.

 

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Belgium requires that those seeking euthanasia be competent, conscious, and able to give a “voluntary, considered and repeated” request. Of these conditions, voluntariness is most obviously complicated by imprisonment. The confinement arguably constitutes a form of coercion in itself. As an inmate, Van Den Bleeken is only able to access the mental health services that the prison is willing to provide and has minimal ability to refuse the threat of ongoing suffering. The choice to live under these conditions is inextricable from the choice to live. Are these circumstances sufficient to justify euthanasia, but flexible enough to allow for voluntary decision-making?

 

report.jpgIn examining a similar issue, that of research on prisoners, the Belmont Report reflects, “Whether to allow prisoners to ‘volunteer’ or to ‘protect’ them presents a dilemma. Respecting persons, in most hard cases, is often a matter of balancing competing claims urged by the principle of respect itself.” Should the state err on the side of protecting prisoners from themselves or should Van Den Bleeken’s personhood be respected above all? Van Den Bleeken, who would obviously prefer the latter, is quoted as arguing that “I am a human being, and regardless of what I’ve done, I remain a human being. So, yes, give me euthanasia.”

 
Questions can also be raised about Van Den Bleeken’s capacity to make a considered request. Does his mental illness undermine his autonomy? After his first arrest for rape and murder, he was declared insane and sent to a mental institution for several years. Upon his release, he raped several more women and was then sent to prison. He has since refused parole hearings, arguing that he still cannot control his impulses and would be a danger to others. Mental capacity and mental illness are related, but not the same – Van Den Bleeken is clearly self-aware enough to know the risks of his own illness if it remains untreated. The media reports that Van Den Bleeken is a smart guy, yet intelligence alone doesn’t prove that he has capacity – there are certainly plenty of brilliant people stricken by dementia.

 

Ultimately the question is whether someone who has been declared legally insane retains (or recovers) the capacity to make decisions for himself. Perhaps the best that we can say at a distance is that establishing mental competence is particularly challenging in the context of insufficiently treated mental illness and doubly so when the patient is imprisoned. This isn’t a case we’re likely to ever see in the United States, but it nonetheless points to challenges faced by societies around the world.

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