Academic journal article
By Deigh, John
Journal of Criminal Law and Criminology , Vol. 88, No. 3
Yale Kamisar, in a series of influential articles on physician-assisted suicide and voluntary active euthanasia, has written eloquently in opposition to legalizing these practices.(1) Today he revisits the first of these articles, his seminal 1958 article, Some Non-Religious Views Against Proposed "Mercy-Killing" Legislation.(2) In that paper Professor Kamisar used the distinction between the law on the books and the law in action to quiet concerns about the harsh consequences of a blanket prohibition on mercy killing.(3) A blanket prohibition, after all, if strictly applied, would impose criminal punishment on physicians and relatives whose complicity in bringing about the death of a patient, or loved one was justified by the dying person's desperate condition and lucid wish to die. It would impose criminal punishment, that is, on innocent people. To mitigate this difficulty, Kamisar argued that, while the law on the books rightly criminalizes all acts of mercy killing, the law in action, given the possibilities of prosecutorial forbearance and jury nullification, recognizes exceptions and thus can be relied on to protect such innocent people from criminal punishment.(4) Revisiting this argument, Kamisar now sees things differently. The hope of a middle ground between legalization and punishment without exception that the distinction had seemed to offer is, he now thinks, false.(5) And critical examination of other attempts to establish a similar middle ground leads him to think that they too will be unsuccessful.(6)
Such critical examination of ideas friendly to one's own position shows exemplary intellectual honesty. It is not easy to revisit one's earlier views and find them faulty. It is especially hard when those views are more than contributions to an academic dispute, when they are part of a national debate on major policy issues that deeply affect us all. At a time when public debate seems dominated by disingenuous hyperbole and cynical refusal to concede any truth in one's opponents' views, Professor Kamisar's interest in openly examining the difficulties in his own views, and his willingness to acknowledge their persistence, deserves our admiration and praise. It should also remind us, at a time when such salutory reminders are rare, of the important difference between advocacy and the search for truth.
Professor Kamisar has consistently taken a utilitarian approach to the question of legalization.(7) He expressly based the nonreligious views he advanced in his 1958 article on utilitarian arguments, and the gist of those arguments can be seen in the reasons he cites today in support of a policy of blanket prohibition.(8) To take a utilitarian approach means that one treats the good and bad consequences of adopting some policy (law, program, or course of action, etc.) as the only considerations arguing for or against that policy. Utilitarian arguments, in other words, are arguments to the effect that adopting a certain policy has better consequences than adopting any of its alternatives. Kamisar thus favors the legal ban on physician-assisted suicide and voluntary active euthanasia, not because he thinks either act is inherently unjust--indeed, he thinks either can be justified in certain compelling, heart-wrenching cases--but because the adverse social consequences of legalizing these acts would outweigh the benefits.(9) Or what comes to the same thing, he favors the legal ban, despite the hardships and tragedies it creates in these compelling, heart-wrenching cases, because he thinks the social consequences of legalization would be worse.
What are these adverse social consequences? What leads Kamisar to think that legalization would be worse than keeping the ban? What speaks in its favor is that legalization would end the cruelty of denying dying people whose suffering and humiliation is great, who are lucid and rational, and who truly wish to die the humane means of escaping their misery that medicine can supply. …