This past summer I wrote about the case of Michelle Carter, a minor who was convicted of involuntary manslaughter for verbally encouraging her boyfriend, Conrad Roy, to commit suicide. Carters case established a rather unique legal precedent in the state of Massachusetts. As I explained at the time:

Although states can and do criminalize assisted suicide, Massachusetts had no such statute at the time Carter was convicted. Moreover, although assisted suicide was/is a common law crime in Massachusetts, as with many state statutes, the common law wasexplicitly tailored around doctor-prescribed suicide. Accordingly, Carters case is inapplicable to all Massachusettss law relating to assisted suicide because unlike doctor-prescribed suicide, Carter neither provided the means nor physically participated in the act. In fact, it was the older Roy alone who would research the method of suicide, obtain the means to do so, and in the end, physically carry out an act he had attempted multiple times before. In other words, it was Carters speech alone that formed the basis of her conviction, but not for the crime of assisted suicide as many might think. Rather, Carters conviction was based on a common law standard of behavior categorized as wanton and reckless verbal conduct constituting involuntary manslaughter.

Creating a category of verbal conduct within common law involuntary manslaughter allowed the Massachusetts courts to argue Carters speech belongs within thesupposedly but not really at allwell-defined and narrowly limitedspeech integral to criminal conductfederal exception to free speech protection.

In Carters petition to the U.S. Supreme Court to overturn her Massachusetts involuntary manslaughter conviction, her attorneys focus on the argument that the common laws verbal conduct standard lacks any clear, meaningful, and constitutional way to determine the line between criminal and permissible encouragement of suicide. In fact, the Massachusetts Supreme Court acknowledged in its decision of the Carter case that not all instances of encouraging suicide are the same. Accordingly, Carters federal petition argues any family member who encourages a sick loved one to die with dignity, or to avoid what they view as unnecessary suffering, exists at the mercy of a Massachusetts prosecutor of being charged with involuntary manslaughter.

The obvious danger with laws that offer no clear indication as to whether citizens have broken them or not is that prosecutors/government can apply them with bias, using them as a pretext to target dissent for example. More important to consider, however, is the fact that vague laws have recently been overturned by a bipartisan majority of the U.S. Supreme Court. The Massachusetts legislature is at least now attempting to define the parameters of its newly established involuntary manslaughter verbal conduct standard to include instances where the will of 1 person is substituted for the wishes of another.

The common law standard established by the Carter case is currently being played out in another Massachusetts court room with the case of Alexander Urtula and Inyoung You. Similar to the Michelle Carter case, the defendant, Inyoung You, is being portrayed by the prosecution as some kind of monster who verbally established complete control over Urtulas suicide. Further complicating the issues of personal responsibility is the substantial evidence that both the suicide victim and the defendant in both the Carter and You cases suffer(ed) from some form of psychological disorder. In the You case, Mr. Urtulas friends had at one point tried to intervene in the relationship by observing that You, not Urtula, needed professional help.

When it is discovered that a criminal defendant suffers from some form of neurological disorder, not only do our moral intuitions often change, the law can strive to change as well. Objective, scientific reasons have been put forth for why our morals and laws should shift in such circumstances. As neurological scientist Sam Harris has explained, brain disorders appear to be just a special case of physical events giving rise to thoughts and actions, and that above all luck, or lack thereof, is the ultimate factor in every human decision. Therefore, according to Harris, even when it comes to the most disturbing or repulsive examples of human behavior:

We should admit that a person is unlucky to inherit the genes and life experience that will doom him to psychopathy. That doesnt mean we cant lock him up, or kill him in self-defense, buthatinghim is not rational, given a complete understanding of how he came to be who he is. Natural, yes; rational, no. Feeling compassion for him would be rational, however or so I have argued.

We can acknowledge the difference between voluntary and involuntary action, the responsibilities of an adult and those of a child, sanity and insanity, a troubled conscience and a clear one, without indulging the illusion of free will. We can also admit that in certain contexts, punishment might be the best way to motivate people to behave themselves. The utility of punishment is an empirical question that is well worth answering.

I would question the legal and moral utility of the criminal punishment in both the Carter and the You cases, not discounting any opinion as to the abhorrent nature of the behavior by each. That is not to say nothing should be done, just that having law enforcement and the criminal justice system tackle this particular harm with incarceration by utilizing difficult to define verbal conduct standards seems inapt.

Unfortunately, there is ample evidence law enforcement and the criminal justice system is substantially burdened by being one of the primary regulators of mental health patients in this country. Of course, to alleviate the current burden on law enforcement would first require exercising the moral will to defer even repulsive behavioral cases from criminal mechanisms, to ones more tailored to alleviating harms due to mental health. As preposterous as state funding for metal health infrastructure might sound to some, given how much we currently spend on locking mentally ill patients up, and if trillion dollar a year budgets and historic tax (tariff) increases are now things conservatives budget hawks in Congress support, we eventually might get around to funding a mental health system capable of addressing the harm.

Tyler Brokers work has been published in the Gonzaga Law Review, the Albany Law Review, and is forthcoming in the University of Memphis Law Review. Feel free toemail himor follow him onTwitterto discuss his column.

Excerpt from:
The Law Of Personal Responsibility And The Illusion Of Free Will - Above the Law