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February 1974

DEATH, LEGAL AND ILLEGAL

Four ways of ending life remain or have become legal in the eyes of at least some of the United States, notes the author: abortion, capital punishment, war, and suicide; "mercy killing" remains illegal. But shifts are occurring, writes Catholic theologian Maguire, that "reflect a recognition that we have overestimated our right to kill in a military setting, and underestimated it in some medical and private settings.

by Daniel C. Maguire

A motorcycle accident in June, 1973, paralyzed George Zygmaniak, aged twenty-six, from the neck down. The indications were that the paralysis would be permanent. George begged his brother, Lester, to kill him, saying he would kill himself if he could. Lester shot and killed his brother in his hospital bed.

The case went to trial, and the jury, after deliberating for two hours and thirty-five minutes, acquitted Zygmaniak on the grounds that he was insane when he shot his brother. The jury also found that he had regained his sanity and he was freed. In this and in similar cases, what the court produces is not so much a verdict as a diagnosis. And a remarkable diagnosis it is, touching as it does on the past, present, and future mental state of the defendant. The jury judged that Zygmaniak's past insanity was such as to excuse him from what would otherwise have been an act of criminal homicide. The jury then pronounced Zygmaniak cured, and the court, by releasing the defendant without further ado, underwrote the inference that his lethal illness would not recur.

In August 9, 1967, Robert Waskins, a twenty-three-year-old college student, killed his mother by shooting her three times in the head. When the police arrived and advised him of his rights to silence, he simply replied: "It's obvious. I killed her." He was arrested and charged with murder.

Waskins' mother had been suffering from leukemia. She had at the most several more days to live. She was, however, in extreme pain and wanted to die. In fact she had begged her son to kill her. Three days previously, she had tried to commit suicide by taking an overdose of sleeping pills. Both her husband and the doctors witnessed to the fact that she was in deep pain at the time she was shot.

The case went to court. The letter of the law had little to offer Waskins. Motive, however benevolent, is no defense in cases of mercy killing. Motive can influence the judge in sentencing, but the most lenient sentence in Waskins' case would be fourteen years in prison with no hope of probation.

On January 24, 1969, a jury deliberated for only forty minutes and with instant psychoanalysis found Waskins not guilty by reason of insanity. They further found that he was no longer insane and he was released. There is no psychiatric evidence that Waskins was ever insane, but thus the case was resolved.

In a famous case in New Hampshire in 1950, Dr. Herman Sander was charged with the murder of a cancer-stricken patient. Dr. Sander had given the patient ten cc.s of air intravenously four times and she died within ten minutes. It is reported that the patient asked the doctor to put her out of her misery. The doctor noted on the patient's chart that he had given her these air injections.

The defense offered for Sander at his trial was that the patient was already dead at the time of the injections. The jury acquitted the doctor apparently on the grounds that there was no proof that his action had caused the patient's death. Thus ended what appears to be the first case in which a doctor in this country was tried on the charge of euthanasia. Jurists who had hoped that the case would set a precedent on the legality of euthanasia, however pleased they might have been for Dr. Sander, were understandably disappointed in the rationale of the verdict. The jury, it would seem, can scarcely be faulted. The judge had Stated at the very outset of the trial that the question of mercy killing could not legally be an issue at the trial. One wonders what could be the issue?

Sometimes in cases of mercy killing, the evidence is simply brushed aside. In the Illinois case of People v. Werner, the defendant pleaded guilty to a manslaughter charge for having suffocated his wife, who was a hopelessly crippled arthritic and had begged her husband to put her out of her misery. After hearing testimony from the family of the defendant regarding his devotion to his wife, and after the doctor testified to the excruciating pain and mental despair of the woman, the defendant was allowed to change his plea to not guilty. The court then acquitted him on the grounds that a jury would not be inclined to convict in such cases. The judge also observed that in this case there was no likelihood of recidivism, that is, of repeating this kind of activity.

Resorting to reasons of insanity for acquittal in mercy killing cases is a common tactic. This tactic would seem to constitute a commentary on the state of the law. What is happening in these instances is that there is a flight to psychiatry when there is no help from the law. Such cases are not rare. Carol Paight, a Connecticut college girl who had been indicted for second-degree murder for killing her hospitalized father who was dying of cancer, was acquitted by reason of temporary insanity at the time of the commission of the act. And in Michigan, Eugene Braunsdorf won the same merciful judgment after killing his crippled adult daughter, who was spastic, mute. and had required hospitalization all her life.

The wheels of justice do not grind evenly here, however. In the same year in which Paight and Braunsdorf were so acquitted Harold Mohr in Pennsylvania was convicted of voluntary manslaughter for the killing of his blind, cancer-stricken brother. He was sentenced to from three to six years in prison and fined five hundred dollars even though he also pleaded temporary insanity, and even though, in contrast to the other two cases, there was in the Mohr case evidence that the accused had acted upon the urgent and repeated requests of his brother. Ironically, the judge in sentencing Mohr described the defendant as a martyr who must suffer the price of martyrdom!

As another example of the uncertain state of the law, it is interesting to note the Texas case of Sanders v. State. Here the act of assisting someone to kill himself by furnishing the means of death is considered to be innocent of any criminality. Then the Texan Court of Criminal Appeals went even further, saying that someone who "administered" poison was guilty of no offense if the poison were taken voluntarily. This would seem to give an open road to some forms of euthanasia in the State of Texas. However, in another case, the Texas court went on to say that anyone who administered poison by placing it in the "victim's" mouth was guilty of murder. In other jurisdictions, though, persons who mixed poison and made it available to incurably ill persons who wanted it and took it were found to be guilty of murder.

Beyond all theoretical questions of what the legal status of mercy killing ought to be, two facts are painfully obvious about the way it is. The current situation is inherently unfair by reason of the unevenness in the judgments reached. Verdicts range from murder in the first degree to acquittal. Prosecutors, judges, and juries generally approach cases of mercy killing in a way that contradicts the law as given. Devious means to circumvent the rigor of the law are the order of the day. But devious means are unregulated and in some cases the law in all of its conceptual rigor will be enforced. Thus the evenhandedness that a rule of law should ensure to create a sense of justice in society is not in evidence.

Secondly, the way in which the law has to be circumvented would appear to merit the epithet hypocritical. Judges and juries, sensing that the law as it stands is deficient, and being unable to do anything about it, declare the defendant deficient, that is, insane. Pleasing as acquittal may be to the defendant, there is some inequity in his having to get the verdict he and the jury want and believe to be just by the loss of his claim to mental health. The situation is all the more macabre since it is often clear that the defense of insanity is only a gimmick used to make it possible to slip out from under the harshness commanded by the law but not by the facts.

The present categories of the law do not encompass the realities involved in death by choice, that is, cases in which by omission or by commission one's own death or the death of another is opted for in preference to continued living. The kinds of death spoken of here are those usually referred to in popular parlance as mercy killing or euthanasia. The motives for these deaths are compassion and an unselfish desire to bring on death when continued living is unbearable for the patient due to physical and/or mental suffering. Mercy killings thus described do not fit into any of the categories of unjustifiable homicide available in American law. They are not murder in the first or second degree, nor are they a form of criminal manslaughter.

Murder is the killing of one human being by another with malice aforethought, either express or implied. "First degree murder is distinguished from other grades of homicide primarily by the mental element known as 'malice aforethought' or 'express' malice, and the unique characteristic of this degree of murder is deliberation or premeditation--a design to take life" (American Jurisprudence). Thus first-degree murder is not something unplanned or impulsive or the product of sudden and overwhelming passion.

In a mercy killing case, there is usually obvious deliberateness and premeditation. The mercy killer has to plan to get the poison or shotgun or whatever means he may use. The immensely serious action, normally involving a loved one, will have been mulled over for a long time during the progressive course of illness. Mercy killings are usually clearly planned events. There is deliberation and premeditation aplenty. But what about the business of "express malice"?

Here the court often turns to the classical definition by Blackstone: "Express malice is, when one with a sedate and deliberate mind, and formed design, doth kill another; which formed design is evidenced by external circumstances discovering that inward intention, as lying in wait, antecedent menaces, former grudges, and concerted schemes to do him some bodily harm."

Blackstone dips into motive here and implies (what should be obvious) that malice, in legal as well as in common parlance, normally imports some sinister overtones in the agent's reason for acting. Thus the idea of ambush, menacings, and grudges. The conclusion would seem to be then that the mercy killer is certainly not eligible of the charge of first-degree murder since his motives, be they right, wrong, or misguided, do not at all manifest Blackstone's or anyone else's "express malice."

Nonetheless, efforts are made to describe mercy killing as first-degree murder. How do the courts achieve this? How do they describe the "malice" of the mercy killer? In the California Supreme Court case of People v. Conley, Chief Justice Traynor shows how it is done. He observes that "one who commits euthanasia bears no ill will toward his victim and believes his act is morally justified, but he nonetheless acts with malice if he is able to comprehend that society prohibits his act regardless of his belief." What this remarkable description amounts to is a nonmalicious sort of malice! Blackstone stresses the quality of ill will and spells it out a bit. The courts which allege malice in mercy killings admit that there is no ill will. Indeed, in the case of Harold Mohr we noted that the judge sent the mercy killer off to jail with the expressed and almost admiring recognition that the man was a martyr. One wonders just what he was a martyr to. Could it, perchance, be to the inadequacy of the laws? Are there malicious martyrs?

And why does the law not employ this enigmatic notion of well-intentioned malice in any other legal use of the term such as in cases of "malicious abandonment," "malicious damage," et cetera?

When the law imputes malice to mercy killings it is indulging in the Anglo-Saxon penchant for confusing reality with legality. Happily for the human race, legality and reality do not always coincide. That is why wise judges are needed to temper the shortcomings of the written law. That is also why the Greeks insisted on the virtue of epikeia, whereby it is reasoned that the law is too general to cover every particular case and that therefore there are valid exceptions which epikeia discovers. Epikeia discerns the primacy of the spirit over the letter of the law. It is the virtue that knows that the spirit gives life whereas the letter can be lethal.

To say that mercy killing is first-degree murder because it is premeditated and malicious, and that it is malicious because it is against the law, is a non sequitur. It ignores the possibility that this case is not covered by the law as it now stands. It also lumps together all kinds of disparate cases. By not observing the distinction between illegality and malice. It places Dr. Sander who dispatched his patient at her request to put her out of terrible misery in a class with a rapist who kills his victim to eliminate the witness. Both are, on the face of it, murderers in the first degree. Obviously, common sense, to which the law is not immune protests. And, of course, the judges and juries who wiggle out of such judgments by gymnastic contortions are also protesting. Mercy killings may be wrong and because of this maybe they should be classified as illegal and felonious. They do not, however, qualify under the essential requirement of first-degree murder--malice aforethought." If they are wrong, another category and rationale must be found for them.

Murder in the second degree is characterized by "implied malice," which is present, for example, where death is caused by recklessness, but where willful design is absent. Thus a murder charge goes from first to second degree when there is no deliberately and explicitly formed plan to take life or when the action is not part of another felonious action, which other felony would, the law thinks, show enough malice to make the murder first degree.

The key then to second-degree murder is "implied malice," as opposed to malice that is aforethought or "express." Some statutes define second-degree murder as a killing "perpetrated by any act imminently dangerous to others and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual." Sometimes verbal provocation will be enough to change the charge from first to second degree. An example of this may be illuminating and may help show whether we are in a category suitable for acts of mercy killing.

"Where the deceased refused to withdraw the remark that defendant was a 'son of a bitch,' by continued repetition of the remark in the face of the defendant's stern warning not to continue with the name-calling. There was sufficient provocation to merit a reduction of the charge from first to second degree murder."

Similarly, the intoxication of the killer at the time of the act may have the effect of reducing the crime to second-degree murder.

The first and obvious difficulty with fitting mercy killing into the second degree of murder is that we are still dealing with malice, albeit implied. Everything we said about malice above also applies here. Nor are mercy killings caused by recklessness. They will be marked by considerable emotional strain, but they are caused by willful design.

Suppose, however, for the sake of argument that there is some kind of legal malice involved in mercy killing. Would it be correct to say that it was of the "implied" kind? On the contrary if it is artificial to say there is express malice in these cases, it is also artificial to say that the malice is of the implied variety. The word "implied" points to diminished premeditation. It is difficult to imagine one killing out of compassion with diminished premeditation; the motivating compassion which leads the mercy killer to act would also lead him to act only after intense premeditation.

Then there is manslaughter: "Manslaughter is a distinct offense, not a degree of murder. It is an unlawful killing of a human being done without malice, express or implied, either in a sudden quarrel or unintentionally while in the commission of an unlawful act" (American Jurisprudence).

If this sounds a lot like second-degree murder to the astute reader, let him be consoled by knowing that many juries have been baffled by the way in which the law in word and in practice distinguishes the various degrees and classes of homicide. Voluntary manslaughter is that which is done in the heat of passion caused by a sudden provocation. (Involuntary manslaughter is a killing which results from the commission of certain nonfelonious but unlawful acts without the intention of taking life. Obviously, mercy killing does not fit into the involuntary category since it is entirely geared to taking life.) What then of voluntary manslaughter?

Voluntary manslaughter is usually a consequence of quarrels and combats. It occurs suddenly, without reflection or prearranged plan to kill. The killer acts "in the heat of blood." The things which would usually provoke this heat are assault, trespass, epithets, insults, gestures, and threats. The emotion provoked may be anger, or resentment, or it may be fear, extreme excitement, or nervousness. For this charge to stick, and not be escalated to murder in some decrees the courts seem to agree that the passion must not have had time to cool. The manslayer acts with all reason obliterated by the sudden provocation. There is no premeditation and no malice. Manslaughter is like an angry strike of retaliatory, unanticipated lightning.

There are two reasons why voluntary manslaughter is not a suitable classification for mercy killings. First, this charge requires that the agent be impelled by uncontrollable passion arising from a sudden provocation; manslaughter is incompatible with passage of much time. The courts presume that if there was "an appreciable length of time," there was premeditation. There is, it would seem, always "an appreciable length of time" in mercy killing. People do not usually gun down a relative upon the first news that he has a terminal illness.

All of the emotions cited in manslaughter cases are self-defensive in character. This is the psychological element that both anger and fear have in common. The emotions and motive of the mercy killer are of another nature. They are marked by sympathy, concern, and anxiety for another, generated usually over a long period of time, in a context that is likely to generate strong and mixed emotions with the consequent need for adjudicating reason. Those who would put mercy killing into the first-degree-murder class are on better ground, and, as I argued, their better ground is not sufficient.

In the second place, manslaughter, though it does not involve malice in the sense that murder does, is an action by which death is dealt without reason or just cause. It is a lesser crime than murder only because of the distraction of the killer. There is, presumably, no just cause for ending a life. Mercy killing is based on the position that there may be a just cause for ending life. This is the fundamental reason why mercy killing does not fit into any one of the categories of unlawful killing.

In effect, American law outlaws and bans all but the most conservative moral opinion on mercy killing. Ensconced in our law is a discriminatory bias which takes no account of the legitimate moral pluralism which has developed on this issue. Conscientious objection is disallowed. (Since the Supreme Court was unwilling to give exclusive rights to more rigorous opinions on the disputed subject of abortion, it would be interesting to see how they would rule on the disputed issue of mercy killing. Even the conservative American Medical Association, while condemning "mercy killing" and opposing legislative efforts to define the moment of death, adopted a "death with dignity" solution at its December convention, stating that "the cessation of the employment of extraordinary means of prolonging the life of the body when there is irrefutable evidence that biological death is imminent is the decision of the patient and/or his immediate family."

Of course, there are apparent mercy killings which are immoral and should be unlawful. The patient may be done in for reasons that have nothing to do with mercy. This is why, even if our law were reformed to permit some kinds of mercy killing, the mercy killer would still have to prove his mercy.

Law is always interested in precedents, and the legal systems of other nations offer us a few striking ones. There have been a variety of modern reforms in various countries, most of them stressing, in mercy killing situations, the significance of motive and the character of the action. The reform which went furthest is that of Uruguay. This law provides for complete exoneration in a homicide case in which the act was motivated by compassion and performed upon the "victim's" own request. As it was promulgated in 1933 it reads: "The judges are authorized to forgo punishment of a person whose previous life has been honorable where he commits a homicide motivated by compassion, induced by repeated requests of the victim." This provision is understood to be a conferral of power on the judges to offer pardon in these circumstances.

Germany does not go so far as Uruguay in this regard, but its laws are an enlightened move in the direction of reform. The German law follows the trend of modern European reform by stressing not the act so much as the actor. Thus, they are concerned not with a type of action such as killing, considered in the abstract, but with the psychological state of the actor, the killer. They want to know the actor's character, his dangerousness or lack of it, the probability that he will repeat his act, his motives. To get it out of the abstract and into the concrete. German law even replaced the conventional terms "murder" and "manslaughter" with the personal terms "murderer" and "manslayer." Premeditation and deliberation are not looked on as decisive, since both compassion and villainy can be premeditated and the law sensibly recognizes that compassion and villainy are not the same reality.

The German definition of a murderer shows the paramount importance of motive. Notice what a far cry it is from the confusion of "malice aforethought" of American law. "A person is a murderer if he kills a human being out of lust for killing; for the satisfaction of sexual desire; out of greed, or any other base motives; in a treacherous or cruel manner or by means causing common danger; or in order to make possible or to conceal another crime." Mercy killings are in the separate category of "homicide upon request." These are indeed punishable, but with lighter sentences.

The Swiss penal code provides that the judge "may mitigate the punishment...where the actor was induced to commit the act by honorable motives." This, in cases of compassion, may lead to total exonerations. Swiss law also provides that whoever ''from selfish motives assists someone to commit suicide shall be punishable; if the motives are not selfish then there will be no punishment. This means that a physician who, motivated by compassion, assists his patient to commit suicide is not subject to punishment.

The law of the land--any land--always allows for killing as a legitimate activity. No society functions without the recognition that life may be terminated for good reasons. Usually the laws mirror the mores of the populace in this regard, though at times they run ahead, and at times they lag behind. The kinds of killing indulged by American law provide a specimen of some traditional and some not so traditional attitudes toward acceptable killing.

Americans are permitted by law to terminate life in four kinds of situations: abortion (because of the Supreme Court decision of January 22, 1973), capital punishment (though the Supreme Court struck down the death penalty laws of thirty-nine states in Furman v. Georgia, nineteen states, not yet ready to fire the hangman, have restored the penalty), war (declared and undeclared), and, in some jurisdictions, suicide. What this indicates is that in some cases, such as war and abortion (if one follows the Court in discounting the moral claims of the fetus in the first six months of its uterine life), man's moral dominion over death has been exaggerated. In other cases, such as death by choice in a medical context, no moral dominion is recognized. Particularly in war, the tolerance for killing is virtually unlimited. Long and destructive wars can be waged by this country without the usual constitutional formalities such as declaration by the Congress. The powers of a President to wage war have swollen malignantly. Dubious precedents are adduced to justify military crusades without giving the people a real chance to judge. The worm, however, is turning. In the Indochina war it was deemed necessary to hide the facts of war from the people and the Congress in order to wage it. The mores, in a word, are less tolerant of war now than are the legal structures.

Also not reflected in the law is a major shift in attitude on the subject of mercy killing. In a Gallup Poll the change of opinion since 1950 is remarkable. The question asked both in 1950 and in 1973 was: "When a person has a disease that cannot be cured, do you think doctors should be allowed by law to end the patient's life by some painless means if the patient and his family request it?" In 1950, only 36 percent said yes to this question. In 1973, 53 percent replied in the affirmative. The breakdown of statistics also is striking. Among adults under thirty years of age, the approval figure is 67 percent. It is noteworthy too that only 46 percent of the Catholics interviewed said they disapproved. Forty-eight percent approved and 6 percent were unsure, meaning that not even a majority of Catholics voiced disapprobation of mercy killing. It is worth saying too that the poll was not taken without a context. Two stories were being highly publicized at this time, that of Dr. Montemarano who was charged with giving a fatal injection to a patient and that of Lester Zygmaniak who shot his brother, who had been paralyzed in a motorcycle accident and had pleaded for death.

Thus there are shifts occurring in the general moral outlook on killing. Inasmuch as those shifts reflect a recognition that we have overestimated our moral right to kill in a military setting and underestimated it in some medical and private situations, I believe the shifts are in the right ethical direction. A look at the four classes of legal killing will bear out my contention that the law is lagging behind the times.

The moral discussion of abortion is plagued by the wrong questions. Though the wrong questions might accidentally lead to some right answers, they are more likely to befoul discussion. This has happened in the abortion debate. The first potentially bad question is, "Is the fetus a person?" The question is pernicious if it implies that if the fetus is not a person, it has no claims to reverence. Not only fetuses are threatened by the presupposition of this question; infants are too. For if personhood and the distinctive, affective imaginative, and intellectual activities thereof are the foundation of respect for fetal and infant life, fetuses and infants are in trouble.

Joseph Fletcher has written a somewhat unfortunate article entitled "Indicators of Humanhood: A Tentative Profile of Man." I say "somewhat" unfortunate because the attempt to delineate personal human qualities is at least a gainful ethical endeavor. I say "unfortunate" because there are threatening implications in the air when Fletcher says that "mere biological life...is without personal status." That is potentially dangerous language because it implies too strongly that fetuses and comatose persons, lacking humanhood in Fletcher's sense of the term, lack a claim to life or are reduced to merely animal or object status.

Fletcher equates "humanhood" and personhood. He lists the qualities that are the marks of persona, being. They are: minimal intelligence (anyone below the IQ mark of 40 is probably not a person), self-awareness, self-control, a sense of time, of futurity, and of the past: concern for others, ability to communicate with others, control of existence, curiosity, changeability and creativity, a balance of rationality and feeling, distinctiveness, and neocortical functioning.

Applying these criteria of personhood to the fetus, it is clear that the fetus is not a person. But what conclusion would be drawn from that? Is it mere tissue or a negligible maternal growth? Could it be plucked like a flower for little or no reason? Is the question of personhood, in other words, ethically decisive? The question "Is the fetus a person?" sometimes implies this. It is then a bad question.

By way of correction, I would say that the fetus is not a person, but that does not answer the question about whether it is moral to abort it. The conceptus from the very beginning is a human reality. From the first moment of its existence it is in a process toward personhood. In a situation of conflict about values, there may be proportionate reason to terminate fetal life, but not because this fetal life is valueless or worthless. Rather, it is valuable but not so absolutely valuable that no other value--principally, the life of the mother-- could ever outweigh it in the unavoidable and sometimes tragic calculus of ethics.

The ethical consideration of abortion must be prejudiced in favor of the fetus. It is mute, and the other competing claimants of value are loud and articulate. They also might, at times, have a better claim, but the fetus' case must be pleaded forcefully in each contest of values with the recognition that its case grows stronger each day it matures in the womb.

Capital punishment is, in a way, a species of killing the incurable. A judgment is made that the person who has committed certain kinds of crimes is, morally, a terminal case and so he is killed. Of course, no supporter of capital punishment explains it in this way. A variety of other explanations are offered--self-defense on the part of society, deterrence of crime, redressing injustice, and so on--but none of these is more than a rationale. Capital punishment, of course, has needed little defense. Throughout the years, it has enjoyed enthusiastic popular support or, at the least, an imperturbable tolerance. It has also been spared acute and persistent moral criticism. The question of why capital punishment has been so widely tolerated is an intriguing one. Yet the fact remains that only war has won greater popularity.

In recent years, the zest for capital punishment had receded. Executions are no longer festive public events. This development, however, is shockingly recent. For example, it was not until 1868 that executions ceased being public in England. A. Alvarez, the author of The Savage God, feels that capital punishment, on the European scene, was a surrogate for the gladiatorial games.

"In Christian Europe, executions replaced the Roman circuses. Criminals were beheaded publicly: they were hanged, their intestines drawn out and their bodies quartered: they were guillotined and elaborately tortured in front of festive crowds: their severed heads were exposed on pikes, their bodies hung in chains from gibbets....The execution was like a fun fair, and for the more spectacular occasions even apprentices got the day off."

No strained arguments about deterrence will account for the long and wide acceptance of penal killing. The roots are deeper than logic and are traceable to our primitive past.

Capital punishment can, I submit, be easily shown to be incompatible with minimal respect for life and consequently immoral. In support of that contention, I would offer these arguments:

(I) Capital punishment is suspect in its origins. Nicholas Berdyaev, the Russian philosopher, writes: "Capital punishment is rooted in the ancient instinct of blood vengeance and human sacrifice, though it has assumed a civilized and legal form." He sees it as blood vengeance transferred to the state, and he suggests that "vengeance is the chief moral emotion of ancient humanity." Primitive tribes often believed that only by the shedding of blood could the debt incurred by certain crimes be satisfied. This was the meaning of the Jewish Goel, an avenging kinsman. The rule was simply this: "The blood of a kinsman must be avenged by the death of the one who shed it, or, failing him, by the blood of one of his family." "An eye for an eye and a tooth for a tooth" was a lived-out maxim for a good number of our barbaric ancestors. In some societies this notion was heavy with superstitious content, so that the spirit of a dead man who died violently would roam tortured and discontented until the blood of his assailant was shed. This primitive notion was purely vindictive punishment which had no interest in correcting or redeeming the malefactor. He was, rather, to be obliterated.

The history of warfare also shows some of these barbaric elements of pure vindictiveness. The Roman assault on Carthage was one example of this, as was the practice of herem of the ancient Hebrews. The application of herem is described in the Book of Deuteronomy:

"...you must kill all the inhabitants of that town...without giving any quarter; you must lay it under ban, the town and all it contains. You must gather all the wealth of it in the public square and set fire to the town and all its goods, offering it all to Yahweh your God. It shall be a ruin for all time, never to be built again."

This kind of genocidal war was mitigated by the thinking that eventually became enshrined in the "just war" theory. It became recognized that war should redress wrongs without going to the extent of annihilation. This represented a limitation of force and a move away from the barbaric thirst for the complete obliteration of the enemy.

Capital punishment represents a perdurance of the primitive lust for liquidating the malfeasant or enemy. It is untainted with the more civilized notions of constraining the criminal or even converting him. On this count alone it is worthy of moral reprobation. But there are other arguments against it.

(2) Capital punishment does not work. As one study of the effectiveness of the death penalty puts it: "Whether the death penalty is used or not, and whether executions are frequent or not, both death penalty states and abolition states show rates which suggest that these rates are conditioned by other factors than the death penalty."

Murder is often the result of fright or other passion. It is not usually accompanied by a cool estimate of the possible consequences. Also, it is done by those who have no intention of being caught and having to put up with the legal consequences. Small wonder that Justices Brennan and Marshall pointed out on the occasion of Furman v. Georgia that capital punishment is unnecessary for the protection of the public.

(3) Capital punishment is not a form of self-defense. It is sometimes alleged that the death penalty is society's way of defending itself from aggressors. What the death penalty should be compared with, however, is not self-defense, but the shooting of prisoners. The condemned man was presumably an aggressor against some part of society. At the moment of his execution he is an unarmed prisoner. Killing unarmed and unresisting prisoners is immoral. Even killing in self-defense is immoral if there are alternative modes of defense available.

(4) Capital punishment is unevenly used. In recent years in the United States, only about one out of ten men convicted of capital murder was sentenced to die, leading Justice Stewart to conclude that the death penalty is "wantonly" and "freakishly imposed."

(5) Capital punishment presumes the infallibility of juries and judges. It leaves no room for correction of a miscarriage of justice. The fallibility of judges and juries, however, is a screaming fact of history. Juries, at best, provide a cross section of the wisdom, foibles, myths, and prejudices of a society. No matter how sequestered, they are impressed with public expectations. They can be duped and befuddled by the double-talk of the law. They can be overly generous or blindly cruel. And if they err, the error, in the case of execution, is incorrigible.

(6) Capital punishment bespeaks an absolute and demonic conception of the state. If the state undertakes to kill persons in its custody when those persons have ceased to be a threat to society, the state is acting as if it had an absolute dominion over life. It is presuming that it could sacrifice one man's life to influence the behavior of other men. In essence, this action is arbitrary, despotic, and replete with pretension to a false sovereignty.

War is an enterprise which seeks to resolve conflict of interest by violence. It is a form of death by choice by which states decide to kill those who do not wish to be killed. It is generally accepted that war can at times be justified. There are few absolute pacifists. The problem is that we are so habituated to wars and rumors of wars that we have justified war too facilely. We have, in fact, tragically overestimated our moral right to wage war.

Violence is addictive; it affects the people who rely on it with the ecstasy of the "quick fix." Violence also tends to be escalatory. At the beginning of World War II Hitler's bombing of population centers provoked expressions of shock from England and the United States. As the momentum of the war increased, however, shock gave way to imitation. The Western Allies soon swallowed their moral indignation and determined that civilian morale and private property were legitimate targets of war. The British Foreign Secretary, Anthony Eden, wrote to the British Air Chiefs in the spring of 1942:

"I wish to recommend therefore that in the selection of targets in Germany the claims of smaller towns of under 150 thousand inhabitants which are not too heavily defended should be considered, even though those towns contain only targets of secondary importance."

A Member of Parliament voiced his approval with enthusiasm. He declared himself to be "all for the bombing of working-class areas in German cities. I am Cromwellian--I believe in "slaying in the name of the Lord.'" These were not mere words. On the night raid on Hamburg of July 27-28, 1943, phosphorus incendiaries and the techniques of the "bomber stream" produced within thirty minutes a fire storm several miles wide which burned or asphyxiated from 42,000 to 100,000 people. Fire-bombing and attacks on civilians also became American policy against Japan. In the March 9-10, 1945, raid on Tokyo, 83,800 persons are reported to have died. Then, of course, followed Hiroshima and Nagasaki and American consciences had grown so at ease with slaughter of populations that these unjustifiable attacks were borne with complacency.

The violence of war represents a reversion to the primitive notion of collective responsibility. The term "collective responsibility" can mean something quite realistic and something that is ever in need of fuller appreciation. Peoples are responsible for misdeeds and culpable non-deeds of their nations, at least because of their mute apathy which allows the ruling powers to sally forth into moral crimes on the international scene.

The term "collective responsibility" here is used to describe the primitive notion that if one member of a tribe offends you. The whole tribe of the offender is guilty. Anthropologist Robert Lowie gives examples of this:

"The sibless Hupa were content to kill any member of a murderer's family in order to punish the crime among the Crow if a Fox had disgraced himself and his society by taking back an abducted wife, the rival Lumpwoods had the right to cut up the blankets of all the Foxes; and in the same tribe the grief of the parents mourning the death of a son slain by the Dakota was at once assuaged when vengeance had been wreaked on any member of the hostile people."

It is Lowie's judgment that this primitive conception is still operative in modern societies. "Though this is an archaic notion," he writes, "it persists to the present day in the warfare of civilized nations, which summarily shelves the practice of determining individual guilt or innocence." Lowie is both right and wrong here. The primitive myth persists in modern war, but the determination of guilt is not a question that is dismissed "summarily" as Lowie says. Efforts have been made traditionally in the just war theory to apply the principle of discrimination. Originally, when war was simpler, this principle was translatable as the principle of noncombatant immunity. Kill-power had to be focused on other potential killers only. In modern war a complicated lip service is still paid to the principle of discrimination. In theory, an effort is made in "conventional" wars to be discriminating in the infliction of war deaths. In practice, there is Lidice and Dresden and Hamburg and My Lai. In theory, firepower is to be directed only at military strategic targets. In practice, many civilians are killed or maimed or dislocated. The theory accounts for civilian deaths with such clinical terms as "indirect killing" and "collateral damage." If in going after a legitimate target some civilians are indirectly killed, this is justified if there is proportionate reason to allow the "collateral damage." This rule paints with a broad brush. It does not turn out to be very discriminating in application. In practice, Lowie is right. Risks are taken with the lives of civilians that would not be taken if they were not implicitly caught in the net of collective responsibility. Police would not go after a gang of criminals in New York City the way that we have gone after "the enemy" in Vietnam, Cambodia, and Laos.

Whatever else it is, suicide is a common fact of life. About a thousand persons a day abandon life on this planet by way of suicide. In the United States alone the estimate is from eighty to one hundred suicides a day. And all estimates are probably low since many suicides are disguised as or mistaken for accidents. Whether pro or con, persons react strongly to suicide, and many theories have been advanced to explain this unique tragedy. Forbes Winslow, a surgeon, wrote in 1840, with confidence, that the increase of suicide in that day was due to the appearance of "socialism." There was, he noted, a sudden increase in suicides following upon the publication of Tom Paine's The Age of Reason. Not unaware of the complexity of the phenomenon, however, he went on to cite other causative factors such as "atmospherical moisture" and "masturbation." (He saw masturbation as "a certain secret vice which, we are afraid, is practiced to an enormous extent in our public schools.")

Cold showers and laxatives were seen as cures for the suicidal urge. It was popular to believe that suicide was primarily the act of young lovers, although the facts are that young lovers are not the most successful of would-be suicides. Others see it as a national habit that overtakes some peoples like a plague, and President Eisenhower opined that the high Swedish rate of suicide was an example of what too much social welfare can do.

Spinoza said quite simply that "all persons who kill themselves are impotent in mind." And Aristotle, in his Ethics, described suicide as a failure in courage. "To run away from trouble is a form of cowardice and, while it is true that the suicide braves death, he does it not for some noble object but to escape some ill."

Harvard Professor Edwin S. Schneidman sees suicidal purpose involved not only in some deaths but in most deaths: "The most important death category--the one that I believe may be characteristic of a majority of deaths--is the subintentioned death, in which the decedent plays some covert or unconscious role in hastening his own demise." As evidence of this Schneidman sees a variety of behavioral patterns such as poor judgment, excessive risk-taking, neglect of self, disregard of medical regimen, and the abuse of alcohol and other drugs. He notes too that "there is a notion that the speed at which some malignancies grow may be related to deep inner psychological variables."

Suicide of a sort may also take place in large numbers through what some psychologists call "victim-precipitated homicide," that is, homicide where persons have acted in such a way as to make their own death almost certain. In the same vein, Robert Lowell once remarked that if there were some little switch in the arm which one could press in order to die immediately and without pain then everyone would sooner or later undertake suicide. If some or all of this is true, then self-killing is statistically normal. Our question is, may it be moral?

With Anthony Flew, I do not say "commit" suicide. That would imply guilt. As Flew puts it:

"...If you believe as I do, that suicide is not always and as such wrong, it is inappropriate to speak of "committing suicide"; just as correspondingly if you believe, as I do not, that (private) profit is wrong, it becomes apt to talk of those who 'commit a profit.'"

A. Alvarez, who himself attempted suicide speaks of "that total loneliness which is the precondition of all suicidal depression." He says too that the suicide is "overwhelmed by his obscure and obscuring sense of inner chaos and worthlessness."

The professors Lester, in their book Suicide: The Gamble with Death, write:

"Suicide is far less likely for a person who has lasting, satisfactory, unambivalent relationships with other people than it is for the social isolate or for the person whose closest relationships are permeated with resentment. Loss of close relationships, whether by accident or by deliberate withdrawal, may serve as a signal to a person's friends that the danger of suicide is increasing. Suicidal behavior does not occur without warning, and one of the most accurate warnings is found in the social relations of the potential suicide."

The very loneliness of the suicide constitutes a moral objection to his suicide. We are social beings intrinsically and essentially. That does not just mean that we are together; it means that we are by being together. Our selves are the counterparts of other selves and action to be human must reflect that firm fact of our nature. The decision of the suicide is lonely. It does not reflect man's communitarian nature. On that count alone, it is likely to be a bad decision. The decision is, of course, related to people. Thus the suicide note and thus the finding of studies that suicide is almost always signaled in advance to someone. But the decision does not proceed from the interpersonal context which is the natural humus from which personal decisions, especially serious ones, should come forth. The good work that is being done by suicide prevention centers is trying to meet this need. Even telephone contact with a center counselor helps people to overcome the crisis and opt for life.

The person inclined to suicide suffers from vision dimmed by pain. When we are in pain, our perception of other realities is minimal. We notice little of what is going on around us. Partial vision leads to bad moral decisions. The fruitful lives of many persons who gave life another chance or who attempted suicide and failed and later rejoiced in their failure indicate that the suicidal decision is, by its nature, not bathed in clear light.

Many are the motives of those who die by their own hand. But in assessing the potential moral meaning of suicide it is well to note that there is some evidence that suicide is often an act of aggression against others. Suicide notes give evidence of this. These notes, in ways that vary from bluntness to subtlety, sometimes show that the death is being used to inflict pain and guilt on the survivors. "Mary, I hope you're satisfied. Bill." This is a short example of a not uncommon theme. It would seem calculated to vitiate the morality of the act in several ways. First, it totally subordinates one's life to an irrational need for spite. Also, it is, to say the least, cruel and unusual punishment.

Suicide also can be wrong at the level of foreseeable effects. First, there are the effects on the bereaved. Studies are now showing that bereavement can be a fatal disease. One must have extraordinary reason, therefore, to inflict it on others. Dr. Dewi Rees and Sylvia Lutkins did a study of bereaved persons in Llanidloes, Wales, over a six-year period. During the first year of bereavement, they found that nearly 5 percent of the bereaved die, whereas the figure in a comparable group of non-bereaved persons was less than 1 percent. The death rate among widowers and widows during the first year after bereavement was 12 percent, as compared to 1.2 percent of their nonbereaved counterparts. If a spouse or child died suddenly outside the home or hospital, the death rate of the bereaved went up by a factor of five, due undoubtedly to the suddenness of the shock.

Dr. Arthur Schmale considered a number of women who were suspected of having cancer of the cervix. While they were in the hospital for a biopsy, Schmale and his colleagues interviewed these women looking for two factors: had they suffered a serious break in significant social relationships, and if so had they reacted to it with feelings of hopelessness and depression? If both of these were present, Schmale predicted that the woman would have cancer. He was correct in 75 percent of his predictions, both positive and negative. About one hundred women were interviewed.

Other studies have shown that such symptoms as insomnia, trembling, and a variety of physical and psychiatric disorders may come upon the bereaved. Again the more sudden the death, the more likely it is that these disorders will occur.

These are factors to be weighed by one contemplating suicide. Good moral decisions are ones where the values outweigh the disvalues. Death may seem an important relief for persons in great distress, but the question is, does the relief of death compensate for the problems that death will cause?

Also, in the area of effects, any suicide may have an exemplary effect. That is, it may encourage other suffering persons to do likewise even though they could have overcome their problem with more time and support. All actions are imitable, especially dramatic ones like suicide. Each suicide may be an inducement to others to end their lives prematurely with much possibility unspent.

Finally, suicide is arguably a wrong decision because of the presence of alternatives. The human spirit can create and transform and because of this, it should be slow, very slow, to admit despair. Man is a self-transcending animal and he has a native ability to transcend even the forces that move him toward suicide. The suicidal mood, of course, does not give ready entrance to alternatives and that brings us back to our first point. The suicidal decision should not be made alone. Only the hardness of other persons can drive persons to the brink of suicide; only compassion and company can bring them back.

Having said all this, however, I must concede, "in a mournful mood" to use Augustine's phrase, that suicide may at times be moral. Even then, like war, it will be tragic; but it can, like war, be moral. Generally, I judge, persons perform suicide because they have been stripped of the essential ingredients of human life--hope and love. It would be naive to think that human perfidy is not capable of depriving some of its members of these ingredients so that they can do no more and must depart. There may indeed be cases where all of the disvalues of suicide can be outweighed by ineffable pain and aloneness. In those cases, it is the survivors who are to be morally indicted, not the victim who seizes the only remaining relief.

Life is the good thing and the precondition of all good things. Any decision to end it in any context, for self or for another, must be slow, deliberate, and reverential. But the life that is good also bears the mark of the tragic. These are times when the ending of life is the best that life offers. Moral man will see this, and then, more than ever, he will know the full price of freedom.