June 28, 2017

Manslaughter vs. Right to Die

(Yes, I'm posting again - not sure how often, or how lengthy, but I've decided to post when the mood strikes.)

Recently, in Massachusetts, a 20-year old named Michelle Carter was placed on trial and found guilty of manslaughter. The story notes:
Just as her friend Conrad Roy III stepped out of the truck he had filled with lethal fumes, Ms. Carter told him over the phone to get back in the cab and then listened to him die without trying to help him....“This court finds,” the judge added, “that instructing Mr. Roy to get back in the truck constituted wanton and reckless conduct.”
Of course, the ACLU has threatened an appeal, and legal eagles have said things like the following:
“Will the next case be a Facebook posting in which someone is encouraged to commit a crime?” Nancy Gertner, a former federal judge and Harvard Law professor, asked. “This puts all the things that you say in the mix of criminal responsibility.”
Her actions were reprehensible, but I am not sure they were illegal, and I believe this conviction is likely to be overturned on appeal; it may even make it to the Supreme Court.
Massachusetts does not have a "right to die" law on the books, although advocates have been pushing for one. I would also say that the general "mood" in the country is that people should be able to have doctors assist them with suicide, although that is certainly debatable.

Now, contrast this ruling with this recent news article from the Washington Post which indicates that, under California's new assisted suicide law (called "right to die" in that article), 111 people or so have sought drugs to commit suicide, and drunk the cocktail.

In the WaPo article, it has an extended discussion of a couple of those 111 people, one of which makes it clear that the family members were assisting a suicidal individual with all aspects of the suicide. To wit:
John Minor, a retired psychologist from Manhattan Beach, Calif., was among those who killed themselves under the new law..... As Minor’s body deteriorated to the point where he struggled to eat or speak, he asked for aid-in-dying drugs. But his doctors refused.
“I started cold-calling — like, just different hospitals and different departments within different hospitals,” Jackie Minor, his daughter, told NPR....Finally, the family found him a health plan that would write him a prescription. Last September, at the age of 80, he drank a cup of apple juice mixed with a fatal dose of the pills and died quietly, surrounded by his relatives...“John did what was right for him,” his wife, Sherry Minor, told the Los Angeles Times. “He died peacefully, rather than in agony, and he was in control. He didn’t feel afraid or helpless.”
So, I think there is a collision of sorts going on in our society - the collision of traditional morality which says that it is wrong to push or assist someone to commit suicide with the "choice is supreme" morality, whereby one is free to assist someone with whatever they wish to do, provided it is the individual's choice. To my mind, there is little difference between telling one's boyfriend to be brave enough to commit suicide and helping a distraught individual call around and obtain the method necessary to commit suicide.

What makes me even more twitchy about this is that it almost appears that, so long as the method is one approved by the State, it doesn't matter whether one encourages, demands, or pushes an individual to commit suicide, provided that the individual apparently decides or accedes of their own free will.

In California, there are even safe-harbors within the "Death With Dignity" law which state as follows:
443.14. (a) Notwithstanding any other law, a person shall not be subject to civil or criminal liability solely because the person was present when the qualified individual self-administers the prescribed aid-in-dying drug. A person who is present may, without civil or criminal liability, assist the qualified individual by preparing the aid-in-dying drug so long as the person does not assist the qualified person in ingesting the aid-in-dying drug....
(d) (1) A request by a qualified individual to an attending physician to provide an aid-in-dying drug in good faith compliance with the provisions of this part shall not provide the sole basis for the appointment of a guardian or conservator.
(2) No actions taken in compliance with the provisions of this part shall constitute or provide the basis for any claim of neglect or elder abuse for any purpose of law.
However, there are also criminal sanctions as follows:
443.17. (a) Knowingly altering or forging a request for an aid-in-dying drug to end an individual’s life without his or her authorization or concealing or destroying a withdrawal or rescission of a request for an aid-in-dying drug is punishable as a felony if the act is done with the intent or effect of causing the individual’s death.
(b) Knowingly coercing or exerting undue influence on an individual to request or ingest an aid-in-dying drug for the purpose of ending his or her life or to destroy a withdrawal or rescission of a request, or to administer an aid-in-dying drug to an individual without his or her knowledge or consent, is punishable as a felony.
So, how do 443.14(a) and (d)(2) and 443.17(b) interact? I am going to hazard that, so long as one is careful about how one encourages and assists, then one will not be found to have exercised undue influence over the individual.

"Undue influence" and "coercion" are very difficult to prove in most states. In California, for instance, when dealing with the execution of a will:
In order to set aside a will on grounds of undue influence, evidence must be produced that pressure was brought to bear directly on the testamentary act. Mere general influence is not enough; it must be influence used directly to procure the will and must amount to coercion destroying free agency on the part of the testator. There must be proof of a pressure which overpowered the mind and bore down the volition of the testator at the very time the will was made. Estate of Mann, 184 Cal. App. 3d 593, 606, 229 Cal. Rptr. 225, 230 (1986)(internal citations omitted). 
Focusing on the phrase "proof of a pressure which overpowered the mind and bore down the volition," how would one prove this in the context of an individual who, due to the pressures of illness or pain, is already suffering in an overpowering and volition-reducing state?

In short, this would be night unto impossible to prove, and therefore, criminal sanctions for this are likely to prove a sham - inserted into the law to relieve those who otherwise object to people being pushed into suicide.

Therefore, provided that the death mechanism provided by the State is used, and all the paperwork is filled out (the law provides for LOTS of paperwork), whatever one says to a dying individual will be ignored in favor of "free choice," even if the individual's family did all the procurement and all other requirements right up to assisting with the taking of the meds (which is curiously not permitted in the law)...leading to a question as to whether that part of the law will also be struck down under equal protection - why should para- or quadriplegics be denied this right due to an inability to use their hands to take the cocktail?

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