After Forty Years, Nebraska Weighs in on Assisting Suicide: Criminal Liability for Assisting Suicide in Nebraska After State v. Stubbendieck

• Publication year: 2021

99 Nebraska L. Rev. 736. After Forty Years, Nebraska Weighs in on Assisting Suicide: Criminal Liability for Assisting Suicide in Nebraska After State v. Stubbendieck

After Forty Years, Nebraska Weighs in on Assisting Suicide: Criminal Liability for Assisting Suicide in Nebraska After State v. Stubbendieck

Note ^[*]

TABLE OF CONTENTS

I. Introduction .......................................... 737

II. The Law of Assisting Suicide in Context ............... 740
A. History and Approaches in Other Jurisdictions ..... 740
B. Public Policy Considerations ....................... 744

III. The Stubbendieck Opinion ............................. 747

IV. Distinguishing Assisting Suicide from Homicide ....... 750
A. The Spectrum of Assistive Conduct ................ 751
B. Analysis of Stubbendieck's Conduct ................ 755

V. The Standard of Aiding and Abetting .................. 757
A. Aiding and Abetting Jurisprudence Is Inappropriate ................................................... 757
B. The Stubbendieck Standard Is Overly Broad ....... 758
1. The Stubbendieck Standard Inappropriately Criminalizes Trivial Assistance ................ 759
2. The Stubbendieck Standard Problematically Lacks a Proximate Causation Requirement ..... 761
C. Narrowing the Scope: The California and Minnesota Approaches ....................................... 762

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1. The California Approach: Implicit Proximate Causation Requirement ........................ 763
2. The Minnesota Approach: Proximate Causation Required Via Strict Scrutiny Under the First Amendment ................................... 764
3. Implications for Nebraska Post-Stubbendieck . . . 765

VI. Conclusion ............................................ 767

I. INTRODUCTION

In State v. Stubbendieck, ^[1] the Nebraska Supreme Court affirmed the first conviction for assisting suicide ^[2] in state history, ^[3] even though the Nebraska Legislature had criminalized assisting suicide more than forty years prior. ^[4] The Nebraska Legislature made assisting suicide a Class IV felony in 1977 by enacting section 28-307 of the Ne-

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braska Revised Statutes, which reads in pertinent part: "A person commits assisting suicide when, with intent to assist another person in committing suicide, he aids and abets him in committing or attempting to commit suicide." ^[5] In interpreting the statute for the first time, the Nebraska Supreme Court clarified the legal contours of assisting suicide in Nebraska but simultaneously raised new, difficult issues that must be resolved in future criminal prosecutions. ^[6]

The bizarre and sensational facts of Stubbendieck take place against the backdrop of national controversy in the legal status of assisting suicide. ^[7] In 2019 alone, New Jersey ^[8] and Maine ^[9] both legalized physician-assisted suicide. ^[10] Further, the highly publicized case of Commonwealth v. Carter recently sparked controversy after the Massachusetts Supreme Judicial Court affirmed the involuntary manslaughter conviction of a defendant who pressured her depressed boyfriend, through text messages and phone calls, to kill himself. ^[11] Accordingly, the first judicial interpretation of Nebraska's assisting suicide statute warrants analysis to clarify the status of assisting suicide in Nebraska. ^[12]

The Stubbendieck holding establishes an overly broad standard for assisting suicide in Nebraska. ^[13] Under the standard established by the Nebraska Supreme Court in Stubbendieck, a defendant may engage in a moderate degree of involvement in the death of the victim-

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such as temporarily smothering and giving poison to the victim ^[14] - and still only face prosecution for assisting suicide ^[15] rather than homicide. ^[16] Yet, on the other end of the spectrum, a Nebraska defendant may now incur criminal liability for assisting suicide by minimally participating in the victim's death; mere verbal encouragement of suicide is sufficient to find guilt when suicide is attempted orcompleted. ^[17]

This Note proceeds in five Parts. Part II discusses the history and public policy considerations for assisting suicide laws and describes the various approaches taken to criminalize assisting suicide in jurisdictions across the United States. ^[18] Part III provides an overview of the Stubbendieck opinion and the key takeaways from the court's first interpretation of Nebraska's assisting suicide statute. ^[19] Part IV examines how the Stubbendieck opinion provides useful precedent for distinguishing assisting suicide from criminal homicide in light of a multi-jurisdictional challenge to draw distinctions between the two. ^[20] Finally, Part V argues that the Nebraska Supreme Court's interpretation of "aiding and abetting," as used in Nebraska's assisting suicide statute, employs far too broad of a standard and recommends preferable alternative approaches taken by courts in jurisdictions with similar statutes. ^[21]

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II. THE LAW OF ASSISTING SUICIDE IN CONTEXT

A. History and Approaches in Other Jurisdictions

Under English common law, suicide was a crime. ^[22] Because suicide was a crime, any attempt, incitement, or conspiracy to commit suicide was a crime as well. ^[23] Although several states once criminalized suicide as a common law offense, no state ever went so far as to actually punish an offender. ^[24] Today, no state criminalizes suicide or the attempt to commit suicide. ^[25] This reflects the prevailing belief that suicide requires psychological rather than criminal intervention. ^[26] However, the vast majority of jurisdictions in the United States, to

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varying degrees and by various methods, criminalize the act of assisting another to commit suicide. ^[27]

Jurisdictions in the United States take three general approaches in criminalizing assisting suicide. ^[28] Thirty states, including Nebraska, ^[29] have statutes that specifically criminalize assisting suicide as a sui generis ^[30] offense. ^[31] Ten states have statutes that criminalize assisting suicide as a form of criminal homicide. ^[32] Five states and the District of Columbia prohibit conduct that amounts to assisting suicide under the common law, either as a standalone offense or under a theory of criminal homicide. ^[33] Michigan recognizes the common law offense of

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assisting suicide in addition to its assisting suicide statute. ^[34] Montana, ^[35] New York, ^[36] and Pennsylvania ^[37] have statutes that prohibit assisting suicide as a standalone offense under certain circumstances and as a form of criminal homicide under other circumstances. ^[38] The legal status of assisting suicide is undetermined in Nevada and Wyoming. ^[39]

In states that have statutes specifically criminalizing assisting suicide as a sui generis offense, ^[40] assisting suicide is generally a lesser-included offense of criminal homicide. ^[41] Nebraska law is representative of this approach. ^[42] Alaska is illustrative of jurisdictions that define suicide assistance as a form of criminal homicide-in Alaska a defendant who "intentionally aids another person to commit suicide" is guilty of manslaughter. ^[43] Pennsylvania's statutory scheme is representative of states that criminalize suicide assistance as a sui generis

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offense ^[44] under certain circumstances and as criminal homicide under other circumstances. ^[45] In Pennsylvania, a defendant is guilty of criminal homicide, rather than assisting suicide, when the defendant causes the victim's suicide by "force, duress or deception." ^[46]

Commonwealth v. Carter ^[47] is illustrative of the approach taken in jurisdictions that prosecute assisting suicide under a common law theory of criminal homicide. ^[48] In Massachusetts, involuntary manslaughter is not a statutory crime but is instead defined at common law as the unintentional killing of another person through "wanton or reckless" conduct that disregards probable harm to another. ^[49] The Massachusetts Supreme Judicial Court held that defendant Michelle Carter acted wantonly and recklessly by helping her suicidal boyfriend form a plan to kill himself and by pressuring him to follow through when he sought to abandon the attempt. ^[50] In jurisdictions that have no assisting suicide statutes, defendants such as Carter face the full penalties of criminal homicide laws, whereas defendants in other jurisdictions would be punished less severely under assisting suicide laws. ^[51]

To add to the complexity of the issue, state statutes that prohibit assisting suicide vary widely in the conduct they forbid. ^[52] For example, a number of states provide exceptions for healthcare providers who provide varying degrees of assistance to competent adults who decline life-sustaining treatment. ^[53] The language statutes use in

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describing criminal assistive conduct include "assisting," ^[54] "causing," ^[55] "encouraging," ^[56] "advising," ^[57] "aiding," ^[58] and, in the case of Nebraska, "aiding and abetting" suicide. ^[59] As a result, whether a defendant's conduct amounts...