Journal of Criminal Law and Criminology Volume 60 | Issue 3 Article 9 1970 Euthanasia: None Dare Call It Murder Joseph Sanders Follow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclc Part of the Criminal Law Commons, Criminology Commons, and the Criminology and Criminal Justice Commons Recommended Citation Joseph Sanders, Euthanasia: None Dare Call It Murder, 60 J. Crim. L. Criminology & Police Sci. 351 (1969) This Article is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. THE JOuRxAL OF CRIMINAL LAW, CRIMJINOLOGY AND POLsCU SCIENCE Vol. 60, No. 3 Copyright © 1969 by Northwestern University School of Law Printed in U.S.A. EUTHANASIA: NONE DARE CALL IT MURDER JOSEPH SANDERS On August 9, 1967, Robert Waskin, a twenty- nature of the act, the status of the actor and the three year old college student, killed his mother victim, and the presence or absence of consent. by shooting her in the head three times. Warned The act itself may be one of commission or one of by the police that he did not have to make a omission. The former, which is the concern of this statement, Waskin allegedly said, "It's obvious, paper, is at the present time some degree of crimi- I killed her." He was arrested and charged with nal homicideA murder.' Waskin's act, however, was a special There are three reasonably identifiable groups type-a type that has troubled and perplexed both against, or for whom euthanasia may be com- laymen and legal theorists. The homicide was a mittedY The first group consists of persons with "mercy kiling." 6 Waskin's mother was suffering from terminal There has never been a prosecution of a person for an act of omission with or without consent causing the leukemia. The doctors in the Chicago hospital death of any person falling within one of the groups where she was killed said that she had, at the most, subject to euthanasia. This fact, however, should not be a very few days to live. She wanted to die and interpreted as evidence of the infrequency of such acts. There is some evidence that these omissions make up had begged her son to kill her. Only three days the great majority of euthanasia cases in the United before, she had tried to commit suicide by taking States. In a survey of 250 Chicago internists and sur- geons by Levisohn, 156 responded to a questionnaire an overdose of sleeping pills. According to her asking: "'In your opinion do physicians actually husband and the doctors, she was suffering deep practice euthanasia in instances of incurable adult 2 pain at the time she was shot. sufferers?' Sixty-one percent agreed that physicians actually practiced it, if not in the affirmative at least in In all American jurisdictions motive is no de- the negative or in terms of the omission to use every fense to a murder charge. If it is shown that the known medical measure to sustain life." Levisohn, act was done with intent and premeditation, the Voluntary Mercy Deaths, 8 J. FoR. MED. 57, 68 (1961). 3 Of the same 156 physicians, however, 72% said the motive for the crime is irrelevant. Motive can be practice should not be legalized. taken into account by the judge in setting the Although this was not a random sample, still 38% or 95 of the Chicago physicians polled admitted know- sentence, but, for Waskin, even the utmost leni- ing of acts of euthanasia, at least by omission. This ency on a murder conviction would have resulted survey refers only to acts against persons with incurable in a sentence of fourteen years in prison with no diseases. Similar results, however, might be expected in 4 cases of old people dying of general deterioration. In possibility of probation. both these cases the patient is usually near death and On January 24, 1969, however, after a seventeen the physician inquires of the family if they wish him to month delay, a jury deliberated for only 40 min- use all possible means or permit the individual to "die in peace". utes and found Waskin not guilty by reason of Williams has proposed a statute confirming the insanity. They further found that he was no legality of acts of omission in relation to dying patients that would be useful in clarifying the law in this area. longer insane, and he was released.' Although it "For the avoidance of doubt, it is hereby declared that seems doubtful that Waskin was ever legally it shall be lawful for a physician whose patient is insane, the verdict, as we shall see, was entirely seriously ill-. .. to refrain from taking steps to prolong the patient's life by medical means;-unless ...the predictable. omission was not made, in good faith for the purpose The word euthanasiais generally used to describe of saving the patient from severe pain in an illness a killing that is prompted by some humanitarian believed to be of a incurable and fatal character." G. W=Amxz s, THm SAzuCcrrr Or Lm'x AND = CRnn- motive. Euthanasia, however, may vary with the NAL LAW 345 (1957). (Hereinafter referred to as Wr.- LIAMS.) I Chicago Tribune, Aug. 9, 1967, at 1, col. 8. While acts of mercy showing just as honorable a 2Chicago Tribune, Aug. 10, 1967, at 1 col. 2. motive may be present in other murders against dif- 3State v. Ehlers, 98 N. J. L. 236, 119 Atl. 15 (Ct. ferent groups, it appears unlikely that these crimes will Err. & App. 1922); People v. Kirby, 2 Park Crim. Rep. be labeled mercy killings. Thus, for example, if one 28, 31 (1823). kills his child because he can not feed him, while he 4 Ill.Rev. Stat. ch. 38 §89-3; Ill.Rev. Stat. ch. 38 may have had the best of motives-to prevent starva- §117-1 (1967). tion-this will be considered murder. See Common- 1 Chicago Tribune, Jan. 25, 1969, at 1, col. 8. wealth v. Hall, 322 Mass. 523, 78 N.E.2d 6-14 (1948). JOSEPH SANDERS [Vol. 60 painful and terminal diseases such as cancer who, There are voluntary euthanasia societies in both by definition, have at best a month or two, per- England and the United States which have pro- haps only a few days, to live. A second group posed legislation legalizing this type of euthanasia consists of defective or degenerate persons, in- in order "to permit an adult person of sound mind, cluding the mentally ill, the retarded, those with whose life is ending with much suffering, to choose gross physical defects, and old people suffering between an easy death and a hard one; and to from senility. Some of these may be persons who obtain medical aid in implementing that choice." 11 have been rendered permanently unconscious by Two types of statutes have been proposed by disease or accident and are being kept alive through those who favor legalizing voluntary euthanasia. artificial medical means. The third group is com- The English Euthanasia Society proposal, typical posed of infants and young children who suffer of one type, requires a judicial investigation to from gross mental or physical defects. The life assure the existence of the patient's consent and expectancy of children in this group may be short, to prevent abuses. It has several requirements. or perhaps even the same as normal infants. The patient must be over twenty-one, of sound Euthanasia may be performed upon the request mind, in a hopeless condition and earnestly desirous of, or without the request of the victim. All those of a painless death. He must make an application in group three and the insane in group two are requesting euthanasia. His physician must combine incapable of consent. The consent issue, then, this request with a written recommendation usually concerns persons in group one who suffer reporting on the patient's condition, and submit from painful terminal illnesses. them to the court. The court then assigns a eutha- For purposes of legal analysis, persons com- nasia referee who visits the patient and the physi- mitting euthanasia may be divided into two groups: cian in order to make himself personally aware of physicians and all others.8 It has been suggested the circumstances of the case. If he agrees with the that under certain circumstances physicians should physician and believes the patient has given be allowed to perform euthanasia legally. rational consent, he may then authorize the death. The authorization would be valid only for a limited VOLUNTARY EUTHANASIA PERFORMED period, and the patient may withdraw his consent BY PHYSICIANS at any time. 2 It appears that neither consent of the victim, The eminent English legal authority, Glanville not the extremity of his suffering, or the imminence Williams, on the other hand, has proposed a of his death are presently defenses to homicide. 9 statute that would give wide discretion to the Demands have arisen from time to time to enact physician. The proposed statute provides: a statute permitting a physician to terminate the life of a consenting patient who is suffering from It shall be lawful for a physician, after con- some incurable, painful and terminal illness.10 sultation with another physician, to accelerate 8 As in the groups subject to euthanasia, the persons by any merciful means the death of a patient who can commit this act are limited usually to physi- who is seriously ill, unless it is proved that the cians or a member of the decedent's family.