Leigh Buchanan Bienen: Works

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Title: Socially-Assisted Dying: Media, Money, & Meaning
: Leigh Bienen
Publisher: Cornell Journal of Law and Public Policy
Issue: Vol. 7, Issue 2, Article 2
Description: Introductory remarks to a legal medical conference held in 1998.

My comments are about assisted suicide as a subcategory of homicide. We’ve been hearing about assisted suicide as a legal, medical, moral, philosophical, religious, and ethical question today; but, of course assisted dying is also a circumstance, a set of actions by individuals and groups, which has the potential to land some in the middle of the criminal justice system.

Assisting suicide is a crime under almost all state criminal codes, but it is not the same crime in every state. The penalty structures vary greatly. Not only are there over fifty independent legislative bodies—that’s omitting the United States Congress—demographically dominated by older white men, but there are also literally thousands of independent prosecutors in the states whose jobs are to enforce these laws, and thousands upon thousands of criminal trial and appellate judges whose jobs are to administer and interpret them.

The state legislatures have the power, first, to continue to criminalize assisted suicide for doctors and others; second, to enact statutes regulating physician-assisted suicide-basically decriminalizing or legalizing assisted suicide under certain restricted circumstances as the individual legislature sees fit; or, third, to abstain from the issue, leaving the existing criminal statutes prohibiting assisted suicide or the common law in place, as they exist in all but a few jurisdictions.

The traditional state statutes prohibiting assisted suicide are part of the states’ homicide provisions. Statutes such as the Oregon Death with Dignity Act13′ either repeal these criminal statutes or create a defined exception to them. Some of the recently enacted statutes combine decriminalization with some legalization or regulation.

The New Jersey law is a typical traditional statute: “A person who purposely aids another to commit suicide is guilty of a crime of the second degree if his conduct causes such suicide or an attempted suicide, and otherwise of a crime of a fourth degree.” These statutes carry over a common law offense. They are essentially a variation on manslaughter provisions and stipulate a legally imposed punishment for causing the death of another.

Causing suicide, that is, harassing a person to the point where he or she kills him or herself, is in most jurisdictions a form of murder. Attempted suicide is usually not a crime, but a misdemeanor. Suicide is not a crime, although there may be legal consequences for the heirs, and this issue should be discussed in the policy debate over assisted suicide. Life insurance policies may prohibit heirs from inheriting from a suicide, and these consequences can influence the decision of a patient or a family.

In 1979, in New Jersey when the criminal code and common law offenses were being revised, the principal legislative committee came close to eliminating the provision criminalizing assisted suicide. In 1979, the legislature was not envisioning its application to the circumstances primarily talked about in this conference. There was a general feeling that the preferred policy choice was to leave the provision in place. The statute would then be there should circumstances arise in which a prosecution was appropriate. I was in the Committee room at the time, and I was struck by how close the Committee came to decriminalizing assisted suicide, and also, incidentally, solicitation for the purposes of prostitution. In fact, the discussion of the two issues was similar: Why have a criminal statute which is never used? …



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