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Crimcast is a virtual resource devoted to critical conversations about criminology and criminal justice issues. Our blogposts, twitter feeds, podcasts and other content provide an overview of trends, research, commentary and events of interest to criminal justice practitioners, academics and the general public. CrimCast is sponsored by The Center for Crime and Popular Culture, St. Francis College, Brooklyn, NY.

Should “Dying with Dignity” be a Crime? The Euthanasia/Assisted Suicide Debate

Nickie Phillips

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Crimcast sat down with Dr. Demetra Pappas, St. Francis College Department of Sociology and Criminal Justice professor and author of The Euthanasia/Assisted Suicide Debate (2012), to discuss her book’s thorough legal and historical exploration into this important topic. Her book (which was recently nominated for the 2013 British Society of Criminology book prize) documents the cases that contributed to the rising euthanasia movement in England and the U.S. in the early twentieth century and follows the movement through critical decades, such as the 1950s, and the rise of the assisted suicide debate in the 1990’s, along with the infamous Jack Kevorkian cases of the 1990s. Her tour de force concludes with the current state of euthanasia and assisted suicide related law in light of more recent cases such as Terry Schiavo, and the latest legislation from U.S. states that have considered whether to decriminalize assisted suicide. Pappas does not take a side in the debate, but rather puts her legal and analytical skills to work in providing a fair-minded and informative account of all the considerations, arguments, and developments that have shaped the controversy.

You describe the early history or euthanasia-related law as one that put doctors in the position of final arbiters in complex and heart-wrenching decisions about euthanasia. Why was that the early trend?

Unlike the contemporary view of medicine, in which patients are seen as active participants in their health care decisions and treatment, during the rise of modern medicine during the late 1800s and early 1900s, doctors were viewed as all-knowing. They had powers to relieve pain through emerging anesthetics and pharmaceuticals, powers to cure previously fatal infectious diseases (largely due to the discovery of antibiotics, though the same argument applies to cancer and chemotherapy treatments) and to, if necessary “heal with steel” by surgically removing cancerous (and other) tumors. This confluence of factors gave doctors extremely high social (as well as professional) status and public esteem, which has been likened by some (both positively and negatively) to gods. Patients, on the other hand, were passive (and often uninformed) recipients of treatments, seldom consulted, and certainly not in the partnerships or even consumeristic social arrangements that we see in the medical system today. Doctors had a great deal of unfettered discretion in treatment, in the early part of the century, with an as-yet undeveloped theory (or legal reality) of informed consent). In what was an overwhelmingly paternalistic Anglo-American society (with highly educated and socially prominent class of physicians), doctors were all but sole arbiters in cases where medical euthanasia occurred. In the event that a doctor was somehow held to account for medical euthanasia, Anglo-American legal theory regarded criminal law constructs of necessity and duress (as mitigation, but also informally used as a jury nullification technique) in cases of terminally ill patients in what we now would refer to as end-stage illness.

The book puts forth the argument that the centrality of doctors then shifted to a focus on the patient as a consumer of medical services. Tell us why this shift occurred by the end of the twentieth century. What about the role of patients’ families or next-of-kin?

The Euthanasia/Assisted Suicide Debate by Demetra Pappas

I love this question – it puts a great frame on the overall issue. During the 20th century, informed consent came into medical practice and legal requirement. That precipitated the beginning of the shift, I believe. In addition, the medical technology which can keep a heart beating, lungs breathing and tubal feeding in cases where a patient is in a persistent vegetative state spurred the advent of cases which many colloquially refer to as pulling the plug. These started with the Quinlan case in the 1970s; not many people know that the Quinlans were devout Catholics, their efforts were really very brave and ahead of their time and started a trend resulting in the United States Supreme Court decision in the Cruzan case (in 1991, ironically the year Kevorkian started his practice and New York’s Dr. Timothy Quill, discussed in chapter 6, wrote his controversial New England Journal of Medicine essay, which resulted in his brief prosecution – in which the Grand Jury declined to indict him – after which he was part of the extraordinary pair of cases that went to the United States Supreme Court in 1997). So families were the backbone of the PVS cases, by definition, though also involved in the euthanasia and assisted suicide cases (usually as consenting or being called as witnesses).

You report that the two most active euthanasia doctors (Jack Kevorkian and Harold Shipman) disproportionately aided women in dying. Why do you think this is the case? Is euthanasia a gendered phenomenon?

I am going to answer in reverse, if I may. In Washington State (which I discuss in chapter 8) and Oregon (which I discuss in chapter 7), where there are legal procedural mechanisms for “death with dignity” (in fact, physician assisted suicide by prescription for Seconol or similar barbiturates), the statistics for who avails themselves of consultation and/or of death with dignity are very close to 50-50 (with a 10 per cent or so variance from year to year). Of course, procedural mechanisms require a whole host of protocols to be followed. These include (but are not limited to), repeated and enduring voluntary requests (at least one in writing), consent procedures of imminently terminally ill patients, outside consulting physicians to verify the terminal illness and projected lifespan, psychiatric/psychological consultation protections of the patient, encouraged family participation in the decision making process, residency requirements (in Oregon), documentation that patients have been informed of other alternatives to medical death with dignity. With Kevorkian, patients sought him out, and there was a study in which Michigan Medical Examiner Dr. Dragovic found that some 72 per cent of Kevorkian’s patients (or clients or victims, depending upon your perspective) were women. Kevorkian knew most of his patients/clients/victims/decedents for very short times (some as little as a couple of days) as his practice increased and escalated, and I note that the patients sought out the former pathologist for the express purpose of ending their lives. As an aside, the criminal justice system actually brought to trial cases involving three male decedents (indeed, both the first and the last cases tried involved male patients) and four female decedents, closer to the 50-50ish statistic of the Oregon and Washington patients. That said, Oakland County prosecutor Richard Thompson brought many more charges, which his successor David Gorcyca dismissed prior to the infamous 60 Minutes “Death by Doctor” broadcast of Tom Hyde’s medical euthanasia by Kevorkian (which resulted in Kevorkian’s sole conviction). With Harold Shipman, although he was beloved by his patients, he was viewed as a true serial killer, who simply decided to (and did) administer lethal doses to patients. One might ultimately posit the theory that whereas roughly equal numbers of male and female patients may want “death with dignity” (i.e. to end their own lives) a disproportionate number of women (especially of earlier generations) looked to (overwhelmingly male) doctors and gave them control (as with Kevorkian) or access (as with the vulnerable women in the Shipman cases). It will be interesting to see what the next several decades hold, with generations of empowered women who take as a given (we hope) the idea that they, not a third party male (doctor or not) are in control of their lives, their destinies and their fates. Hmm, another book may be waiting to happen!

At the time the book was published, you felt that the trend in Anglo-American law was toward decriminalization of assisted suicide. Have there been any new developments since your book was published that support your conclusion? Has anything unexpected happened?

There have been a number of developments, some of which regarded decriminalization, some of which regarded mitigation (compassionate treatment of criminal defendants) and yet also in the move or effort toward criminalization. I will outline a very few here. Just last week (read, the first week of April 2013), Connecticut failed in its attempt to become the fourth state to have legal assisted suicide or death with dignity, when members of the state legislature announced that the bill would fail to come out of committee, citing time constraints (a way of tabling something). Less than one month ago, in an example of what seminal legal theorist Yale Kamisar (1950s, chapter 3) would have noted as a case of the law in practice being as malleable as the law on the books is absolute, in Pheonix, Arizona, 86-year-old George Sanders received a sentence of probation (notwithstanding the originating murder charges) for killing his ailing wife, who had been afflicted with multiple sclerosis. The prosecutor, the judge and the couple’s grandchildren were all in agreement about this. This reminded me of my discussion of Carol Carr (chapter 8), who shot her two Huntington’s Disease afflicted sons as they lay side by side in a nursing home; Carr was allowed to plead guilty to assisted suicide, which no stretch of the sociological or criminological imagination (let alone black letter law) would have allowed for. On the other hand, there is a legislative moment to criminalize assisted suicide in Montana. In another example, Connecticut is now considering legalizing assisted suicide – a step beyond decriminalization, whether de jure (as in Montana’s Baxter decision) or de facto (as in Arizona’s compassionate treatment of Sanders).

What are you working on these days? Are you continuing to study euthanasia or have you moved on to new controversial topics?

[While] I am continuing to give conference papers (I just gave one at a medical humanities conference about the euthanasia of King George V, which was the subject of chapter 2 of the book, and got great questions inviting me to tie in to other, more recent events, the result of which is that I feel another article coming on!) and to expand into other areas from the book (as with a law school colloquium yesterday comparing the medical and legal deviance of Jack Kevorkian and Michael Jackson's doctor, Conrad Murray) and write more articles about euthanasia and assisted suicide[, t] However, there is no question that I needed to step away from the book a bit. This I did in two ways. First, I am continuing to develop a line of research on anti-stalking movements and mechanisms (I won a prize in 1997 for my ethnography and article on the effort to redraft Minnesota’s anti-stalking law after the Supreme Court struck it down in 1996, the article is "When a Stalker's Hot Pursuit Turns Coldly Calculated Chase in Minnesota: How Specific Need Expressions of Intent Be or Do Actions Speak Louder Than Words?", 20 Hamline L. Rev. 371, 1997). I have had a paper on “The Stalked Student: Two Unanticipated Qualitative Studies, Across a River, a State Line, a Decade,” accepted for this year’s American Society of Criminology conference. In addition, I am developing a line of research in visual sociology concentrated on hurricane and natural disaster recovery (my student's work on the visual sociology project is published here: "The Sociology Assignment: When Visual Images of Hurricane Sandy Got Personal," Note by Dr. Demetra M. Pappas, Post and Images by students Kelsey Papanicolaou and Leah Vanden Bosch, Post and Captions by Valia Haskopoulos, SocialShutter.com, March 17, 2013 (pedagogical methodology, visual sociology, natural disasters). In a different vein, I write theater reviews and travel and cultural pieces, my most recent theater piece (which was fun for Broaday, and more serious for the Off-Broadway) can be found hereManilowon Broadway and Forever Dusty, which appeared in the March 2013 issue of The New York Resident (find the article by"turning the pages" to page 83). Each set of interests somehow seems to inform the other and I more often than not seem to find common threads over time in juxtaposition and comparative work , such as last fall, when I reviewed The Exonerated for its 10th anniversary run at New York's Culture Project, and then showed my students the film and devised a midterm exercise and THEN did an ongoing string of pieces for Crimcast (I think in horse racing terminology, that would go beyond a tri-fecta to a multi-fecta!). And, on the side, I am working on developing a course in dramaturgy and the sociological imagination, as well as criminal justice representations in dramaturgy. But I have to admit, having the chance to travel and write about cultural and culinary experiences in other locales, such as on a recent trip to Puerto Rico (after which I also wrote up a little known pre-revolutionary prison fort dungeon for Crimcast!) l is a great way to get my head out of the clouds.

In closing, thanks so much to Crimcast for the interest in my work and the opportunity to reflect (and project!) in this interview!