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Suicide and Legal Liability

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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24 Responses

  1. AF says:

    There is something like this for life insurance. Suicide is excluded.

  2. Maybe some suicides could be deterred, but we certainly do not have any evidence of that. And even if a small number could be, most certainly could not. So you are punishing (again) almost all individuals left behind in order to deter, at best, a small number of suicides. That seems profoundly immoral to me.

  3. I agree with Kevin, although I’d like to mention some additional reasons. The decision to make acts of suicide legally punitive presumes we’ve arrived at something like a societal-wide or democratically sufficient “agreement,” or at the very least something analogous to that among the requisite “experts” from several fields of inquiry, such that we have adequately or minimally addressed and answered a number of conceptual, moral, and psychological questions with regard to suicide.* That hardly seems to be case, nor does it seem likely in the near future. As to the class of possible individuals that may be deterred from the act owing to a rational reckoning of a legal consequence, I suspect that number is correctly and modally described by Kevin as small. Given the motley reasons for the act of suicide: “the relief of physical pain, the relief of psychological anguish, martyrdom in the service of a moral cause, the fulfillment of perceived societal duties (e.g., suttee and seppuku), the avoidance of judicial execution, revenge on others, protection of others’ interests or well-being,” it does not seem plausible to imagine the aforementioned rational contemplation of a deleterious legal consequence along the lines here suggested would sufficiently outweigh or trump the pursuit of such objectives among those considering suicide.

    * See, for example (and from which the quote was taken), Michael Cholbi’s entry on “suicide” for the SEP: http://plato.stanford.edu/archives/win2012/entries/suicide/

  4. This also appears to serve as a nice illustration of the proverb, “if all you have is a hammer, everything looks like a nail.”

  5. Brett Bellmore says:

    I would say, based on personal experience, and statistics I’ve seen, that if you REALLY wanted to reduce the suicide rate, you’d require a mental health examination of both parties as a condition of applying for a divorce, and then offer free treatment to the one who proves to be suffering from depression… as one of them, likely the guy, (About half of all suicides are recently divorced men.) probably will be.

    I can’t think of any intervention which would likely be as effective. I mean, think about it: About half of all suicides being from one particular circumstance, and we ignore that circumstance? Honestly, I wonder if ‘no-fault’ divorce would meet with such approval if half of all suicides were women who’d just gone through one.

  6. PrometheeFeu says:

    What is wrong with suicide?

    I can definitely see many problems with the things which often lead one to suicide, but I have trouble seeing why it is society’s business that one its members decided to end his or her life.

  7. Joey Fishkin says:

    If you actually wanted to discourage suicide, the best thing would be to make it a little more difficult, for example by packaging Tylenol in blister packs instead of in bottles from which it is easy to grab a handful of pills. (This is a policy change that actually worked in the UK, see this op-ed, http://opinionator.blogs.nytimes.com/2013/06/02/a-simple-way-to-reduce-suicides/ ) I suspect that making it harder for mentally ill people to buy handguns would have a similar effect.

    Those are legal/regularory measures. By making suicide more difficult, they discourage the most impulsive/reckless suicides — especially common among teenagers, etc. That, it seems to me, is a valid public policy goal, and this is an area where a little nudging could help a lot of people avoid doing something they later would be thankful to have avoided.

    In contrast, the policy proposal in the post above, if it has any effect at all on anyone’s decision to commit suicide, which I’m not sure it would, would perversely penalize only those suicides by people who are planning ahead a great deal, and also, had an estate — likely older people who are ill and in pain. This seems to me clearly the wrong group to focus on; in fact penalizing people in that situation with “partial escheat” just seems cruel.

  8. Joe says:

    Who are we discouraging and how closely tailored to these people is the methods suggested?

    The penalty is going to hurt survivors as well as those who we might not want to discourage. The former seems a kind of corruption of blood [you are tainting the estate specifically here, even if it is only a somewhat minor taint].

    I also don’t know how much of a deterrence this really is. That is the idea, right?

  9. PrometheeFeu says:

    I disagree with the argument that we shouldn’t penalize the estate because it mostly hurts the survivors. I think that a better way to look at the estate is that it is an asset which the deceased is disposing of. So while the survivors are losing out, that is no more the case than when imposing a fine on somebody during their lifetime. We don’t usually consider that we are penalizing a person’s heirs when we fine them for speeding for instance.

  10. Brett Bellmore says:

    I honestly don’t think this would effectively discourage suicide. The thing about suicides is that they’re self-absorbed, thinking of themselves. If they were thinking of others, they’d soldier on regardless of their own pain. Imposing consequences on others won’t mean much of anything.

    And, to remind, a great many suicides are recently divorced men. They’re going to be so upset about depriving their ex of part of their estate… Not. They’d probably consider the penalty posthumous revenge.

  11. This piece raises the possibility that a significant correlation suggests a possible socio-economic cause for the recent increase in the rate of suicides: http://www.alternet.org/economy/whats-behind-substantial-increases-suicide-rate-middle-aged-americans-bad-economy-likely?paging=off

  12. Joe says:

    Some suicides are not merely “self-absorbed” but believe that they are hurting others. The person who is long term disabled because of an accident, e.g., might believe (at times rightly given the situation, even if society as a whole should see the person as an asset) he or she is a burden.

    A person also might sacrifice themselves for some cause or other person. Is this not supposed to be a “suicide”? Again, maybe the OP is just too vague. As to the harm to survivors, I am not necessarily saying that should nullify the proposal. It is something to take into consideration.

    Also, the lifetime fine is different in that it is limited and tied to the person, who while alive can also compensate in other ways such as working harder. Once dead, the survivors are the ones being harmed. The fact a suicide or something else might hurt them might serve deterrent or other value. But, since others are affected, it should be used carefully.

  13. Carolyn Blakelock says:

    Are we citizens or subjects? If I cannot end my life should I choose to do so, then my life is not my own and I am effectively a slave of the state.

  14. Gerard Magliocca says:

    Carolyn,

    Do you also support dueling? Two people want to risk their lives for honor and shoot it out at 20 paces. One is killed. That should be fine under your theory, right?

  15. William Bell says:

    Whatever the motive, the effect may be socially beneficial. Let’s say that two people, A and B, are both diagnosed with terminal esophageal cancer. A decides to “fight it” — i.e., demand whatever treatment is available to prolong his life as long as possible, thereby incurring enormous expense that will be borne by others. B goes home and kills himself. B’s conduct is praiseworthy, not A’s.

  16. Joe says:

    #15 is pretty black/white. “A” can be providing various benefits, including at a teaching hospital, providing love and care to family and friends, fighting for his rights under the law helping others in the process, etc. Also, he can be seen as brave, not willing to give up a fight, etc., usually good things. What expense is too much here?

    And, how long can he fight it and still be deemed praiseworthy?

  17. BC says:

    Brett, people who commit suicide are rarely self-absorbed and rarely kill themselves for selfish reasons. Sure it happens — the attention seeking attempt that goes too far, the teenager who lashes out and goes too far. However, for most people who contemplate or commit suicide, their thoughts are first and foremost on the people around them. When you are severely depressed, as most people who commit suicide are, your perceptions of the world around you are off. You feel like you make everyone around you miserable because you feel so miserable inside. You honestly — if irrationally — believe that everyone you love would be better off without you. You want to end THEIR pain — not your own (although that is a convenient side effect).

    Having some punitive measure in place would likely have no meaningful impact because someone contemplating suicide is likely not thinking entirely rationally — so the logical cost-benefit analysis of the not-depressed-or-suicidal simply does not apply.

    And, yes, I speak from first hand experience — although I obviously never went through with it.

  18. I don’t either that this will discourage people from committing suicide. It’s a personal choice. They have the right to do so if they want to. What the state can do is to give rehabilitation to these people. My two cents.

  19. Carolyn Blakelock says:

    Gerard -

    I’m not sure why you made the leap from suicide to dueling. Although I would argue that dueling is still going on, after a fashion, it is called boxing, and cage fighting and mixed martial arts. Except instead of killing you just end up with permanent brain damage. And, no, I don’t approve of it, but that doesn’t mean I want to go around limiting what other consenting adults do. And, yes, I am a libertarian.

    I agree with the other posters who don’t think your idea would do much to deter suicide, and would instead penalize the survivors. And what business is it of the state, anyway? I would rather die by my own hand and have a dignified death than waste away, leaving my family with huge medical bills.

  20. Joe says:

    The question as to dueling is fairly logical since it examines the breadth of the principle. Some, e.g., would draw the line at assisted suicide.

    Dueling was also a major controversy in this country in the early to mid-19th Century, seen as immoral and legitimately targeted by the state, though many continued to see it as an important matter of defense of honor. One way to indirectly target it was to penalize those who were involved in a duel, such as denying them the right to office or something.

  21. Kent says:

    “The thief is satisfied with diamonds; but the suicide is not: that is his crime. He cannot be bribed, even by the blazing stones of the Celestial City. The thief compliments the things he steals, if not the owner of them. But the suicide insults everything on earth by not stealing it. He defiles every flower by refusing to live for its sake. There is not a tiny creature in the cosmos at whom his death is not a sneer. When a man hangs himself on a tree, the leaves might fall off in anger and the birds fly away in fury: for each has received a personal affront.” G.K. Chesterton, Orthodoxy Ch. 5.

  22. sahara says:

    People also might sacrifice themselves for cause or other man. Is this not supposed to be a “suicide”? Again, maybe the OP is just too vague. As to the injury to survivors, I am not likely saying that should nullify any proposal. It is something to take into consideration.
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  23. Michael Kelly says:

    Freedom IMHO means the Constitutionally Protected Right of Free Will given to US by our God of Nature (The Ultimate, Infinite, Eternal One). Anyone proposing or supporting laws against the Freewill Exercise of suicide is for Servitude/Slavery to the State. The decision to ends one’s life is a personal one and the right to do so is the ultimate test of True Freedom. However, that does not mean that I assertively advocate suicide because I am also a fervent supporter of Suicide Prevention and Mental Health Programs to assist those that need such help to make hopefully, but not necessarily, a better Life’s Decision.

  24. William Bell says:

    In reply to #16: sure, there could be unusual circumstances in view of which it might arguably be of net benefit to society for someone with an incurable terminal illness to hang on as long as possible, but so what? Pointing that out does not refute my contention that suicide can, under circumstances that are not at all uncommon, be more socially beneficial than clinging to life.