The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


Libertarianism vs. Utilitarianism in Encouragement of Suicide

Guyora Binder and Luis Chiesa break it down, and some quibbles.


Following up on my post about the case of Michelle Carter who texted her boyfriend to kill himself, my colleague Brenner Fissell pointed me to to a new article by Guyora Binder and Luis Chiesa that deals with the issue of encouragement of suicide. In "The Puzzle of Inciting Suicide", they view the question of criminal liability in such situations as demonstrating a conflict between libertarian and utilitarian intuitions. Under a libertarian understanding, suicide is generally seen as an autonomous act whose encouragement should not be criminalized. Under utilitarianism, however, "inciting suicide seems well worthy of criminalization" because "[s]uicide is a serious public health problem."

They view the trial court decision in Commonwealth v. Carter as struggling with that tension and splitting the difference between not finding any liability (as per libertarianism) and finding Carter guilty of murder (under a utilitarian foreseeability theory) by declaring her guilty of involuntary manslaughter. Their account strikes me as plausible overall, and I recommend their article for its excellent overview of the history and case law in this area. Having recognized their significant contribution, I would like to point out two quibbles.

First, I am not sure I agree with their conclusion that the trial court

embraced the utilitarian foreseeability standard that now prevails in most American jurisdictions. In doing so, it rejected the more libertarian standard of causation that imposes responsibility for results of a wrongful act not followed by intervening voluntary action.

The trial court, as quoted by the Massachusetts Supreme Judicial Court, emphasized that the victim "breaks that chain of self-causation by exiting the vehicle". The SJC (whose opinion I understand was not out yet at the time of the publication of Binder and Chiesa's article) interpreted the trial court as follows:

[The trial court judge's] finding of causation in this context, at that precise moment in time, includes the concept of coercion, in the sense of overpowering the victim's will.

This actually strikes me as an attempt on the part of the trial court to explain the guilty finding in terms that Binder and Chiesa would deem libertarian rather than utilitarian as such. Indeed, an important part of my criticism of the trial court's conviction and SJC's upholding thereof is based on my questioning whether there truly was no intervening voluntary action on the part of the victim.

The SJC seems almost completely focused on causation rather than foreseeability, but causation played an important role for the trial court as well. These decisions suggest that the courts wanted to convince those with a more libertarian conception of suicide as well (despite my belief that this did not succeed in the end). Perhaps Binder and Chiesa will elucidate their understanding of the case further now that the SJC decision is out.

Second, I query whether the all-or-nothing hypothesis, whereby we must let Carter go free vs. convict her of a serious criminal offense, is quite so binary in reality. There are several tools both inside and outside the law at our disposal to punish Carter, potentially provide some recovery for the victim's family, and express societal disapproval of her conduct.

For one, this is the kind of scenario that may call for a tort remedy. For another, the story of this encouraged suicide will likely follow Carter on the Internet until the end of her days, creating negative repercussions for her professional and personal life. It therefore hardly seems the case that if the criminal law did not intervene here (as I suggested it indeed should not have), she would get away scot-free. I would have liked to see more discussion of these themes in Binder and Chiesa's otherwise excellent work.