Friday, May 15, 2009

Theories of Punishment

Suicide is the only action that is not a crime that may be prevented by force.


Criminal justice is the formal practice of preventing and punishing proscribed behaviors.

There are five generally recognized theories of punishment, in criminal justice terms:

  • General deterrence means making an example of a criminal so that the population at large will be deterred from committing a crime.
  • Specific deterrence refers to punishing an individual criminal so that he or she will "think twice" and be deterred from committing a crime in the future.
  • Incapacitation means isolating and/or restraining a criminal so that he or she will not be able to commit a crime for the duration of the incapacitation.
  • Rehabilitation refers to providing assistance to a criminal so that he or she will not want or need to commit a crime in the future.
  • Retribution involves taking revenge on a criminal for the crime that he or she committed.

Deterrence, incapacitation, and rehabilitation models aim to prevent crime. Deterrence and rehabilitation models operate on the criminal's mind, whereas the incapacitation model operates only on his body.

Suicidality is often considered to be a mental illness, properly considered to be within the purview of medicine; however, the interventions that are commonly undertaken in cases of suicidality demonstrate that the act is properly viewed as part of the criminal justice model.

The key feature of suicide: it is the only action that is not a crime that may be prevented by force.[1]

The prevention of suicide generally takes punitive, rather than medical, form. Generally, the methods used are incapacitative:

Because [preventing a determined person from committing suicide] is impossible, psychiatrists enjoy (if that is the right word) virtually unlimited professional discretion to employ the most destructive suicide-prevention measures imaginable, provided the measures are called "treatments." The authoritative American Handbook of Psychiatry (1959 edition) endorsed lobotomy "for patients who are threatened with disability or suicide and for whom no other method seems likely to relieve or restore them." In the 1974 edition, lobotomy was replaced by electroshock treatment administered in sufficient doses to destroy the subject's will to kill himself: "[W]e do advocate its initial use for one type of patient, the agitated patient, often middle-aged and usually a man, who presents frank suicidal intention. We give ECT [electroconvulsive therapy] to such a patient . . . daily until mental confusion supervenes and reduces the ability of the patient to carry out his suicidal drive." Thomas Szasz, Fatal Freedom: The Ethics and Politics of Suicide, pp. 56-57 (citations omitted). [Emphasis mine.]

However, often the methods used are so obviously unpleasant that they fall under the deterrent models as well - if not the retributional models!

In they Army, anyone reporting suicidal ideation is made to wear a bright orange vest and rubber bands in place of his shoelaces - not to mention watched 24/7 by a "buddy." As reported by Elspeth Reeve:

Suicide watch (also called unit watch, buddy watch, or command interest profile) is how the Army deals with soldiers in garrison who express suicidal thoughts but don't appear to be in immediate danger of harming themselves. It's been around in some form since the 1980s, and generally involves a suicidal soldier being watched by one or two fellow soldiers around the clock, and having his gun, shoelaces, and belt taken away, so he can't kill himself.

. . . . "You're in an isolated state," [a recruit who was under suicide watch] says. The orange vest makes you a pariah. "You've got the reason you're on suicide watch to begin with on top of the fact that you stick out like a sore thumb," he says. "It's like you're walking around in a zoo, and you're the animal."

. . . . The purpose of the vest is, ostensibly, to make it easy for others to keep an eye on a suicidal soldier, but forcing a soldier to advertise his own depression creates a powerful stigma. "When you see what happens to someone on suicide watch—the orange vest, the trips to the chaplain, the drill sergeant talking about them when they're not there, saying they can't handle the military. … When you see that, you're going to think twice about speaking up and saying you need some help. It makes you not want to talk to someone. You don't want to be like that guy," the recruit from Benning says. [Emphasis mine.]

The Army's treatment of suicidality is clearly punitive. Indeed, there is a strong incentive for soldiers to express insincere suicidality - that is, removal from combat duty. This would make it seem rational for the Army to institute counterincentives (conceding, implicitly, that suicidal behavior is rational in that it responds to incentives). But, as Reeve indicates, the punishment also dissuades genuine suicides from disclosing suicidal ideation.

At any rate, the "treatment" is clearly not rehabilitative, but punitive. General and specific deterrence are at work here, as well as incapacitation.

Similarly, from prisons to mental hospitals, disgusting and punitive "interventions" are used to prevent suicide. This is "mental health treatment" only in the most crudely and obsoletely behavioralist sense. Humiliating heavy dresses/smocks, presumably worn without underwear, are placed on male and female prisoners (of hospitals and prisons) to prevent them from committing suicide.[2] Again, general and specific deterrence are operative, as well as incapacitation. The smock is awful and undesirable, in addition to preventing one from enacting one's suicidal wishes.

If suicide is a symptom of a mental illness, though, wouldn't the distress be treated - not the action? People with trichotillomania do not have their hands forcibly restrained from touching their heads. Rather, the distressing compulsion to pull one's hair is treated - and that only if it distresses the patient in the first place. In the case of suicide, however, the distress of everyone except that of the suicidal person is considered. If suicidal ideation does not cause one marked distress, why is it a mental illness?

The truth is that, despite the ostensible decriminalization of suicide, modern society still encounters suicide under a criminal model. The extreme position of Justice Scalia is, unfortunately, the one tacitly held by our government in general:

"At common law in England, a suicide - defined as one who "deliberately puts an end to his own existence, or commits any unlawful malicious act, the consequence of which is his own death," 4 W. Blackstone, Commentaries *189 - was criminally liable. Ibid. Although the States abolished the penalties imposed by the common law (i.e., forfeiture and ignominious burial), they did so to spare the innocent family, and not to legitimize the act." Cruzan v. Director, MDH, 497 U.S. 261 (1990).


Thanks Rob Sica.



1. I realize it may be necessary to distinguish civil injunctions, and civil contempt actions, here. Civil injunctions are ordered only in the case of irreparable harm to others. And, to be punished - by fine or jail - a contempt action must be proved beyond a reasonable doubt. Neither of these criteria are in place in the case of suicide. And, just to be clear, civil injunctions are by far an exceptional case. Money damages are by far the preferred remedy, when they are at all applicable.

2. Gawker says, "It's weird these models don't get more work! They are really selling the look. 'Show me 'I sure wish I could kill myself but this smock is impossible to rip into strangle-friendly strips'! Perfect.'"

Tuesday, May 12, 2009

With a .22

I. Fourteen Shots

He shot himself fourteen times with a squirrel rifle. "It is probably the most incredible kind of suicide I have ever seen," says P. Boxho, reporting the case in the Journal of Forensic Science ("Fourteen shots for a suicide," 101:1:71-77, 1999).

The man, a 56-year-old Belgian, used such a low-energy weapon (.22 LR cartridges in a 22 mm rifle) that he had to shoot himself fourteen times in the chest in order to effect his end - and, even after fourteen shots, his death was slow. He had to operate the bolt of his rifle between shots, and, most incredibly, he had to reload after the first seven shots. According to Boxho,

The last bullet was certainly the one that went through his left arm for, with a humerus fracture and the fatigue generated by developing hypovolemia, it was getting impossible for him to reload the gun and to keep shooting.

So he had to lie down in the position in which he was found and to wait for death to come.

That death was certainly very slow for, considering their trajectories, the projectiles could only go through his lung, maybe skim past his heart, causing a slow haemorrhage, responsible for death by a hypovolemical shock.

II. Christmas Money

Mychal Bell, best known as one of the Jena Six, shot himself with a .22 pistol. Bell became despondent after being charged with shoplifting, he says.

Police say surveillance video appears to show Bell stuffing merchandise into a bag in a Dillard's store while another male seems to serve as a lookout.

Bell walked out with the bag without paying, officials said, and a security guard approached and took it from him. Police said Bell and the other male fled, and guards chased Bell because he'd had the bag. Authorities say it contained $370 worth of clothes.

Bell hid under a car in the parking lot, and as a store security officer tried to pull Bell out, he hit the guard in the face with his elbow, police said. Bell, who was charged with shoplifting, simple battery and resisting arrest, was released on bail, according to authorities.

Investigators don't know who the other male was, and Bell "admitted to everything" to a detective, Lt. Jeff Harris said.

He decided to use his Christmas money to buy a gun, and eventually obtained the .22-caliber handgun. And then he "went awry" at his grandmother's house, he said.

He aimed it at his head and pulled the trigger, he said, but the gun misfired. Then he pointed the gun at his chest and fired. The bullet clipped his lung, and he was taken to the hospital and treated. It is not clear who found him, or whether he was alone in the house at the time of the shooting.

Does someone who shoots himself in the chest with a .22 really mean to die? It seems that our Belgian man did. However, given the limited availability of reliable means of suicide, I think it is best not to make a hasty judgment that someone did not want to die, and was merely seeking attention and sympathy, based only on the choice of an ineffective method. Perhaps an ineffective method is all the potential suicide could access.

III. Low-Energy Weapons

The term "multiple gunshot wound suicide" is often used sarcastically - a joke, meaning that the alleged suicide was really a homicide, but was (poorly) made to look like a suicide. However, about 1% of gunshot suicides involve multiple wounds. The majority of these multiple gunshot wound suicides involve those aforementioned squirrel guns (or plinkers) - .22 caliber handguns. A .22 is such a low-energy weapon that a single shot may not be enough to bring about death.

IV. Suicide Black Widow

Terry Cottle shot himself behind his right ear with a .22-caliber handgun in 1995. His wife, Cheryl, was present at the time of his death.

Initially, Cheryl told sheriff's investigators she heard 10-year-old Christopher shouting that Cottle had shot himself. She said she ran into the bathroom and found him on the floor with the revolver still in his hand.

In a second version attached to a coroner's report, Cheryl said she was eating oatmeal when one of her boys yelled, "Mom, Dad has a gun!" She said she ran toward the bathroom "and saw Terry standing up and looking at her" with the gun in his hand.

"She said that she yelled something like, `Terry, wait!', and this was at about the same time as she pushed on the door to try to get into the bathroom and at the same time she heard a shot," the report says.

Cottle was taken to the hospital, but was removed from life support and his organs donated. 57-year-old Sonny Graham received Cottle's heart.

What makes the story, though, is that a few husbands later, Cottle's widow Cheryl married Sonny Graham.

Then Graham shot himself.

If your mind weren't poisoned with Cheryl's sordid history and strange behavior, you might be tempted to romantically contemplate "cellular memory" or something. But the story seems darker. There were other gun incidents involving her other three husbands. And there's this shocking failure of proper feminine decorum and chastity:

On her MySpace account - now deactivated - her photo changed from a sweetly smiling portrait to pictures of her on a lake or drinking beer with friends. Her screen name changed, too, from simply "Cheryl" to "PrEttY LAdy," then "BeaUtiFuL MeSs."

Family members monitoring the account noticed that shortly after Graham's death, she posted a man's photo identifying him as her "new boyfriend." A flirtatious message on the man's Web page, from her account, was dated March 26 - six days before Graham's death.

I find this story remarkable because it is the first time I've ever seen a mainstream news outlet imply that a suicide was caused by another person - rather than by, say, mental illness. "Implied" may be too soft a word:

As far as [Cottle's sister] was concerned, Graham's death was less about her brother's heart than about Cheryl - the woman with whom both men had chosen to share it.

Saturday, May 9, 2009

Why Physician-Assisted Suicide is Not Good Enough

The political position in favor of a general right to suicide has few advocates; in terms of numbers, it is a rather extreme position. Much more common - common enough to be the majority in a few states - is support for a limited right to suicide for terminally ill people, with physicians as gatekeepers for that right.

I have often written on why restricting suicide rights to terminally ill people makes no ethical sense. But there is another major problem with "Death With Dignity" laws like that of Oregon and Washington: physicians are the gatekeepers to the right to suicide, taking control of death away from the individual. "Patients" must depend on physicians in order to be allowed to die. And enough physicians are refusing to "assist" that the right to suicide is empty of practical meaning.

It has been months since Washington's Death With Dignity law passed, which allows a terminally ill person to access a prescription for a lethal drug. But the scheme requires the cooperation of doctors; and in areas outside Washington's big cities, doctors simply aren't cooperating, reports Kim Murphy in the Los Angeles Times ("In rural Washington state, law allows assisted suicide, but most doctors don't," May 7, 2009).

Personally affected by this injustice was Stephen Wallace, a victim of terminal pancreatic cancer. Wallace was unable to find a single physician in his area willing to make the lethal prescription at his request. From the article (emphasis mine throughout):
Cancer of the pancreas has a cruel reputation, delivering what some say is the most intense pain humans can imagine. It killed Wallace on April 8.

"It was very hard to watch my father die that way," said Tricia Crnkovich, who took turns with her brothers and sisters in Wallace's small bedroom as he shrank from 250 pounds to 60, losing most of the weight in the two months before he died. "I'll tell you, if I ever get cancer," she said, "I don't want to put my kids through that."

Wallace's treatment at the hands of medical professionals was appalling. Even beyond the fact that his request to die was ignored, his pain was not being adequately managed because of "concerns" of his nurses.

. . . . Crnkovich said her father had been given strong medications when he went home from the hospital, but that his nurses had resisted increasing the dosage as his pain grew more intense.

Soon Wallace's mental state began to deteriorate. Because the assisted-suicide law requires a 15-day waiting period between the first oral and the first written requests for lethal medication, and an additional 48 hours before the prescription can be written, he no longer qualified.

"He couldn't talk for the last eight days," son Steve Wallace said. "He was not in contact with reality. I'd come in there, and he'd call me somebody else."

Mr. Wallace's nightmare had come true. He had, the article states, watched his wife die of cancer, in miserable and unrelieved pain; he did not want to die like that.

Near the end, Steve and Ginny could hardly stand to be in the house because his father was in so much pain. By the time the doctor said his medication should be increased despite the nurses' concerns, it was too late.

"He was just moaning and screaming, and it got really bad on Friday," Ginny said. "By Monday when we left, he was just screaming at the top of his lungs."

Meanwhile, major hospitals in Washington are refusing patients' right to die as a matter of policy, making the extremely limited right to "Death With Dignity" even more meaningless. From the Seattle Times:

Olympia area hospitals won't offer assisted suicide services

OLYMPIA — Providence St. Peter Hospital and Capital Medical Center officials said Thursday that the hospitals will not participate in physician-assisted suicide under the state's new Death with Dignity law, but instead will refer terminally ill patients to their primary doctors.

Providence Health & Services spokeswoman Karina Jennings said Thursday that the same standard applies for all of its medical facilities and nursing homes in Washington and Oregon. The key reason: Providence is a Catholic health care organization, and physician-assisted suicide is "not a path conducive to our values," she said.

"We don't believe that health care providers should be put in the position of taking someone's life," Jennings said.

Because of its extensive involvement in health care, the Catholic church is able to impose its values on millions of non-Catholics - and Washington's law does nothing to prevent this. We have already seen the morally repugnant position of the Catholic Church on assisted suicide and suffering: suffering is good for you. Says the Most Rev. Carlos Sevilla:

Initiative 1000 is an attack on our most fundamental beliefs and teaching, and placing it on the November ballot would contradict our proclamation of the gospel of life . . . Pain and suffering and illness are important parts of our faith experience. [Emphasis mine.]

He would probably be so bold as to say to Stephen Wallace's children that screaming at the top of his lungs in pain as he died was an important part of Wallace's faith experience. Which might have come as a surprise to Wallace.

The ethical arguments about physician-assisted suicide often focus on physicians' autonomy, emphasizing the right of a physician to avoid helping someone commit suicide (or, as hospital spokeswoman Karina Jennings misleadingly puts it above, "taking someone's life"). But the physician's "right" must be considered against the background of "rights" that have, in our system, been taken away from the patient and given to the physician. Perhaps a physician shouldn't have to assist in a suicide; but the patient will not be able to help himself and exercise his own autonomy without the physician's action, because of the drug prohibition. The only comfortable sort of suicide - a suicide by overdose of fast-acting barbiturates - is only "assisted suicide" in that competent adults are generally prohibited from accessing the necessary drugs. Given our existing laws, it is either naive or cruel to refuse physician "assistance" (drug provision) to a would-be suicide.

At any rate, suicide should not be a medical matter. Physicians should not be the gatekeepers of suicide rights - it is unfair to physicians and unfair to people who want to die. The choice to die, and the responsibility for the act, should fall on the individual, not on his physician. From Thomas Szasz, in Fatal Freedom: The Ethics and Politics of Suicide:

Although performing an abortion and developing effective methods of birth control entail the use of medical knowledge and skill, abortion and contraception are not medical matters. The same is true for suicide. Although killing oneself with a drug entails the use of medical knowledge and requires access to the necessary substance, suicide is not a medical matter. We ought to deal with death control the same way we have dealt with birth control: by removing it from the purview of Medicine and the State, by repealing all medical and legal interference with the act. [Bolded emphasis mine; italics in original; citations omitted.]

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