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.

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  1. “inciting suicide seems well worthy of criminalization” because “[s]uicide is a serious public health problem.”

    Is it though?

    1. Is it a problem – that really depends on how you set your standards.

    2. Is it a *public health* problem – its not communicable so . . . no. Its not.

    Basically, this person’s ‘utilitarian’ argument boils down to ‘I don’t like the idea that vulnerable people may be driven over the edge – therefore we should criminalize this behavior’.

    Which really doesn’t seem very utilitarian to me.

    1. I can see the utilitarian argument.

      Suicide, especially of the young, is damaging to society as the investment in their development has been wasted. Therefore, suicide should prevented and encouraging it should be banned.

      However, I find it very concerning that the courts are the ones to decide this under existing rules. If we wish to ban this, it should really be done by the legislature passing a new law.

      1. Especially because the linked paper isn’t about whether suicide is good or bad from a utilitarian perspective, I think it cites to enough sources to make a plausible claim that suicide is generally bad from a utilitarian perspective.

    2. 2. Is it a *public health* problem – its not communicable so . . . no. Its not.

      But it is communicable — that is exactly what this thread is about. Humans are more than just DNA. A good chunk of their behavior is communicated, and defects in that data stream can lead to to degradation of the organism.

      We protect speech precisely because it is so powerful to modify behavior. That’s its whole purpose! Note to the censorious: these modification levers include making people feel bad or embarrassed or sad or shocked or triggered.

      1. Well, Krayt and Ben of Houston, you both have basically rendered ever limitation on government action moot.

        If anything can be considered a public health crisis and everything is communicable – then what are the limits of a government that has the power to intervene in ‘public health crises’? Everything’s a public health issue, everything affects interstate trade . . .

        1. I said I can see the argument. I didn’t say I agreed.

        2. My point was the power of communication was so great, that’s why it is in the First Amendment — so you can, indeed, change the behavior of others, or more specifically, so the king cannot forbid you from changing the behaviors of others against him.

          But that is not carte blanche to encourage illegal behavior.

      2. “But it is communicable — that is exactly what this thread is about. Humans are more than just DNA. A good chunk of their behavior is communicated, and defects in that data stream can lead to to degradation of the organism.”

        While there is some evidence of a suicide contagion that might provide a hook for a public health claim, this case isn’t an example of that. It wasn’t her desire to kill herself that led him to commit suicide.

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    4. Agree completely. It seems bizarre to simply state this is a “public health problem.”

      Given that we have don’t know what happens to people after they die, and that we can’t know the depths of the specific pain and anguish that any particular individual feels, it seems to me that we cannot necessarily say that any particular suicide was a good, or bad, outcome.

      Surely some percentage of people who commit suicide are truly better off for doing so. I can’t really think of any plausible way to estimate what that percentage may be. It might be quite low, but it might also be quite high. We simply can’t know.

      (I know that some people come back at this with “But most people who attempt suicide and fail end up regretting it!” which IMO isn’t a valid objection. It’s a completely one sided sample biased towards those with less conviction, and fails to obtain the needed sample of “how many people who successfully committed suicide ended up regretting it?”)

    5. Cancer is not communicable either. Is it a public health problem?

      If not, then why does the government spend money on research into prevention and treatment?

      When suicide is the result of depression, which it often is, then it is a death caused by a treatable disease. The libertarian view of it as “an autonomous act” makes not much more sense than viewing dying of cancer as an autonomous act.

      1. Yeah, “communicable” probably wasn’t the right determinant to sort out public vs personal health problems.

        Despite that, I concur with the conclusion that suicide is not a public health problem. That said, I think that depression is a public health problem. And while curing depression will reduce the incidence of suicides, they are quite different problems.

      2. If cancer is a public health issue – on where the government is to be allowed to criminalize conduct that might lead to you getting cancer – then so is the common cold.

        then why does the government spend money on research into prevention and treatment?

        Good question – why does the government take money from people to spend on things that are not within the scope of the government’s duties? Just because they are spending money to research something does not mean that that something is a public health issue – unless you believe government never makes mistakes nor exceeds its authority.

        1. Are firearms a public health issue? What about wildfires? What about obesity? What makes something a public health issue? Is it whatever a government agency says it is or do we have an agreed upon legal standard?

          1. I have no good definition of public health issues, but I don’t think communicable diseases are the only such issue.

            Nor am I sure that whether something is a “public health issue” or not by some definition is the appropriate standard for government involvement.

            1. Neither do I – I prefer a much more restrictive standard.

        2. Of course the common cold is a public health issue. It’s just that it’s a minor one that doesn’t justify using the vast panoply of powers against it.

          The flu, on the other hand, is the exact same sort of thing, but depending on details like epidemic size could indeed justify all sorts of reactions.

      3. “When suicide is the result of depression, which it often is”

        How do you suggest we determine whether any particular suicide was the result of depression, or the result of other factors?

        If you concede either is possible, it would seem that you can’t. Even a person who is known to have depression might have committed suicide for reasons unrelated to their depression.

        I’d also suggest the notion that depression is “treatable” is highly debatable. It’s one of the few “diseases” we’ve seen that tend to be getting more prevalent over the last few decades, not less.

    6. Doesn’t the fact that I can encourage (and cause) someone to commit suicide make it communicable?

      To continue a medical analogy, the person encouraging suicide is a disease reservoir. That is, an organism unaffected by a bacterial or viral infection, but capable of infecting others

      1. Except that the causal link here is weak.

        Yes, she *encouraged* it. And *maybe* she pushed him over the edge. Maybe. Or maybe not. We have no hard data here, only gut feelings – of pity, disgust, revulsion, etc.

        1. Well, we have to make a judgment here as to the strength of the causal link.

          That’s what the court did.

    7. Not communicate? There have been no copycat suicides?

      Next thing you’ll tell me is murder-suicide isn’t communicable either?

      What planet did you say you were from again?

  2. The anti libertarian side seems much much more deontologically oriented (see Bob from Ohio).
    I see no attempt at a utilitarian calculus at work there.

    1. Sort of like the difference between “malum in se” and “malum prohibitum.”

  3. 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.

    OK then. There is a spectrum of available penalties. But isn’t that true of criminal law, and sentencing, as well? IOW, why can’t we see her conviction and sentence as just one point on that spectrum? Do you see a huge discontinuity between the most severe non-criminal penalty and the mildest possible criminal punishment?

    1. $20 fine vs. being kicked out of a great school and labeled a sexual harrasser for life because you recited a poem about a man from Nantucket?

  4. Bitch deserves prison, and if she didn’t get it, well then the law is an ass.

    1. Bitch was a bitch but didn’t deserve prison. Because she got jail, the law is an ass.

      Personally I think that it should not be necessary to have a law degree in order to sit for the bar exam. Case in point, IANAL but my legal analysis is simply brilliant.

  5. Unless I missed it, I saw no one addressing the issue of diminished capacity. The victim had been in a vehicle that was filling with CO. He exited the vehicle and appeared to be suffering from the preliminary effects of the gas, one of which is reduced mental capacity. Did Carter talk him into returning to the vehicle while he was unable to make an informed choice?

  6. Just to clarify, I meant I saw one in the comments addressing this.

  7. There are many other possible ways of looking at the issue besides libertarianism and utilitarianism.

    Also, nothing prevents states from prohibiting soliciting a suicide a crim, any more than soliciting a suicide. States could make suicide a crime, surely if possessing dangerous drugs an be criminalized using them lethally can be.

    States have decided that criminalization is not the best way to handle the situation as a public health matter, just as they are weighing doing with drug laws. That is not a decision that the individual has a right to do it or that the state has no interest in the subject.

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