COMPASSIONATE HOMICIDE.

• Author: Buchhandler-Raphael, Michal

ABSTRACT

Ample psychological studies demonstrate that emotions provide reasons for action and are powerful drivers of a host of behaviors, including criminal acts. Studies further establish that experiencing intense emotions might impair actors' judgment and decision-making, sometimes culminating in committing homicide.

Existing criminal law doctrines only partially correspond to these findings. They recognize mostly anger and fear as underlying the excuses of provocation, imperfect self-defense, and duress by mitigating murder charges to manslaughter or otherwise excusing offenders. Currently, however, no doctrine recognizes compassion as a basis for mitigation. Under existing laws, an actor who intentionally kills a terminally ill or severely disabled close family member, wholly out of compassion for the victim, commits the crime of murder. The actor's motive to end the victim's suffering is irrelevant for determining the scope of criminal responsibility.

In recent years, legal scholars have developed a new field of study focusing on the interplay between law and the emotions, including among others, in the realm of criminal law. This Article contributes to existing literature in this area by suggesting that compassion is yet another emotion that may trigger certain actions. Advocating the adoption of a statutory affirmative defense that is grounded in compassion, this Article argues that recognizing this excuse is consistent with the rationales and reasoning underlying criminal law's recognition of existing emotion-based excuses. This Article develops the theoretical and doctrinal bases for endorsing a compassion-based partial excuse by advancing three arguments. First, it contends that experiencing compassion towards a close family member might affect an actor's judgment and decision-making, motivating them to kill. Second, it argues that from a policy-based perspective, recognizing a compassion-based excuse is normatively warranted because while the killing is neither justified nor fully excused, it is an understandable reaction given the circumstances the actor was facing. Third, this Article outlines some necessary constraints on the scope and limits of the partial excuse to ensure that it is applicable only in appropriate cases, where actors normatively deserve mitigation.

INTRODUCTION I. COMPASSIONATE HOMICIDE UNDER EXISTING LAW A. Terminology and Scope B. The Law: Recognizing Passion, but not Compassion C. The Practice: Inconsistent and Unprincipled Mercy D. Arguments for Upholding Current Law 1. Theoretical Rationales 2. Practical and Evidentiary Rationales II. PSYCHOLOGICAL RESEARCH ON COMPASSION A. What is Compassion: Definitional Questions B. Compassion as Motivating Action C. Familial Compassion and Caregiving Relationships D. Compassion's Effect on Moral Judgment and Reasoning III. THE THEORETICAL BASIS FOR THE EXCUSE A. Psychological Research's Implications for the Law B. The Legal Basis for Reducing Culpability 1. Compassionate Homicide as Lack, of Fair Opportunity 2. Reasonable Emotion Motivating Unreasonable Action 3. A Compassion-Based Excuse for Homicide C. Additional Normative Arguments Supporting the Excuse 1. The Emotional Toll of Caregiving 2. Substituting Consistency and Uniformity for Discretion IV. THE SCOPE AND LIMITS OF THE DEFENSE A. An Objective Component: Reasonable Emotional Experience B. Motivated by Compassion for the Victim C. Close Family Members Following Caretaking Relationships D. The Victim Did Not Object to the Killing E. A Single Perpetrator, Excluding Conspiracies to Kill F. Limited Application: Homicide Offenses G. A Proposed Model Defense H. Applying the Proposal: Testing the Defense's Limits CONCLUSION INTRODUCTION

On May 27, 2015, Bonnie Liltz, a fifty-six-year-old Illinois woman, killed her twenty-eight-year-old daughter Courtney by intentionally administering her an overdose of medication. (1) Liltz adopted Courtney, who suffered from severe developmental disabilities and cerebral palsy, when Courtney was five-years-old, and according to witnesses' testimonies, had been a loving mother. (2) Liltz was Courtney's sole caregiver, and throughout her life changed her diapers, fed her through a tube, bathed and dressed her, lifted her in and out of her wheelchair, administered medications, and took her to medical appointments. (3) Three years prior to the killing, Liltz had been diagnosed with cancer, which required her to undergo surgery. While Liltz was hospitalized, she was compelled to leave Courtney in a nursing home, in which she was not well taken care of and seemed very unhappy. (4) Shortly before the killing, Liltz had undergone a colostomy bag surgery, due to ongoing complications from her illness. (5)

Liltz was initially charged with first-degree murder, under Illinois law, but later entered a guilty plea to one count of involuntary manslaughter of a family member in exchange for the state's recommendation that the trial court sentence her only to four years' probation and mental counseling. (6) Defendant stated in allocution that on the day of the homicide, she had awoken with severe abdominal pain and uncontrollable diarrhea, and her stomach was "indented," which her gastroenterologist explained was a sign that her intestines were failing. (7) At that moment, defendant believed that she was dying and had decided to kill Courtney and commit suicide because she was terrified that after her death, Courtney would not receive proper palliative care. (8) While Liltz had injected both herself and Courtney with a combination of four medications, Courtney died and Liltz had survived. (9)

Defense counsel argued for mitigation, claiming that Liltz acted with compassion, care, and unconditional love; thought she was dying; and believed, "reasonably or unreasonably, that she had no other choice." (10) Importantly, the prosecutor was willing to show compassion towards Liltz and recommended to the court a probation-only sentence, without any prison time. (11) However, the trial court rejected the prosecution's recommendation and instead sentenced Liltz to four years in prison. (12)

Liltz appealed her sentence, arguing that the trial court had abused its discretion by ignoring the ample evidence in mitigation and imposing a term of imprisonment despite the state's recommendation of a probation-only sentence. (13) The court of appeals affirmed both the judgment and the sentence, finding that the trial court properly weighed both mitigating and aggravating factors. (14) Liltz committed suicide two days before she was due to report to prison. (15)

Cases like Liltz, where actors kill terminally ill or severely disabled loved family members wholly out of compassion, in order to end their pain and suffering, challenge us to ask whether the criminal law ought to recognize a statutory defense that would provide a doctrinal basis for mitigating murder charges to a lesser form of homicide. (16)

Ample scholarly writings address the questions of voluntary euthanasia and assisted suicide, where deceased explicitly request to die, asking others to actively assist their killing or help them commit suicide. (17) Only scant scholarly attention, however, has been devoted to examining the scope of criminal responsibility in cases like Liltz, involving non-voluntary euthanasia, namely, circumstances where victims never requested to die. (18) This Article aims to fill this gap by exclusively focusing on these mercy killings, which are currently viewed as murder. (19) Consciously avoiding the euthanasia terminology, this Article coins the phrase "compassionate homicide" to refer to these cases. (20)

Considering whether defendants' compassion towards the victim ought to play any role in determining the scope of their criminal responsibility calls for delving into the growing scholarly interest in the relationship between law and the emotions in general, and the role that emotions may play in underpinning criminal excuses in particular. (21) To consider compassion's role in criminal law, this Article draws on insights gained from psychological research on compassion and specifically familial compassion. (22) The latter is broadly defined as a caretaker's desire to alleviate or end the suffering of terminally ill or severely disabled close family member and the motivation to act upon this desire. (23)

Psychological research on the role that various emotions might play in affecting actors' judgment and decision-making has significantly developed in recent decades. (24) Ample studies demonstrate that emotions are potent, pervasive, and predictable drivers of decision-making. (25) Research further establishes the mechanisms through which powerful emotions not only shape individuals' judgments and choices, but also motivate them to engage in certain behaviors, including lethal ones. (26) Put differently, emotions often explain the reasons for people's actions.

Criminal law only partially comports with these psychological findings; doctrines such as duress, imperfect self-defense and provocation recognize the role that fear and anger play in either exculpating or partially excusing defendants who were motivated to commit crimes triggered by these emotions. (27) Existing criminal law doctrines, however, do not acknowledge that other emotions, including compassion, may provide grounds for recognizing additional criminal excuses. (28) Criminal law's recognition of some emotions, but not others, as bases for mitigation, raises the question whether this disparate treatment is warranted, and whether the law should take into account the effect of additional emotions on criminal conduct by adopting new excuses. (29) Conceding that a host of emotions might motivate homicide, this Article contends that compassion, and particularly familial compassion, may also ground a partial excuse.

Criminal law doctrines currently preclude any excuse--whether complete or partial--when actors kill...