The first-degree murder charge leveled against Dr. Jack Kevorkian has rekindled the debate over whether doctors should be legally free to assist terminally ill patients in ending their lives. But regardless of how that broad issue is ultimately resolved, it is absolutely clear that Kevorkian should not be convicted of the highest level of murder -- a crime that carries a mandatory term of life imprisonment with no possibility of parole.
When we think of first-degree murder, we imagine a gangland execution, a terrorist assassination or a deliberate killing to collect insurance. In each of those cases, the victim did not want to die. An innocent life was taken against the unambiguous will of the victim. Kevorkian's "victims," on the other hand, actively sought out his assistance. They wanted him to help them die.
I am not a supporter of Kevorkian or his death machine. Kevorkian is a zealot -- an advocate of an extreme view of the role of doctor as a facilitator of dignified and painless death. Zealous advocates make poor judges, especially when they purport to sit in judgment over decisions in which they have a stake. Moreover, the woman whom Kevorkian helped to die was not a typical terminal case.
She was suffering from the beginning stage of Alzheimer's disease, a relatively slow and physically painless illness that is difficult to diagnose at its inception. According to her own doctor: "Mrs. Adkins could expect several more years during which she would be able to maintain self-care and enjoy the types of experiences (spending time with her grandchildren, outdoor activities, etc.) she was currently enjoying."
I share the concerns of those medical ethicists who worry whether Kevorkian was "in any position to judge her competency," on the basis of a relatively hasty examination. And I join those who argue that "a person who promotes euthanasia and the right to die is not someone you want advising people on whether they should take their life."
But I cannot applaud -- as some medical ethicists have -- the murder charges against Kevorkian. If the state of Michigan, or any other state, wants to ban what Kevorkian did, let the legislators debate this issue of medically assisted suicide and then enact a new statute specifically directed at the problem. The first-degree murder statute is far too general.
The murder statute does not, for example, distinguish between what Kevorkian did in the Adkins case and what a family doctor might do in a case involving a patient with an extremely advanced and extremely painful cancer. It does not distinguish between cases based on the degree of competency or consent of the patient. And it does not differentiate between the active and passive involvement of the doctor. It leaves everything up to the discretion of the prosecutors. And the attitude of the Kevorkian prosecutor in this case leaves much to be desired.
Kevorkian's questionable actions should be used as a stimulus to changing the law. New statutes, with appropriate exception, procedures and punishments, should be considered by legislators around the country. These new laws should not, in my view, give individual doctors carte blanche to decide whether a patient has really thought through the life and death decision. But nor should prosecutors be permitted to roam at large through the thick volumes of existing crimes, looking for the closest analogy. That is especially so where the prosecutor selects a crime punishable by life imprisonment with no possibility of parole. Whatever else he may be, Kevorkian is not a first-degree murderer and he should not be treated like a gangland hit man.