Until the 1970s, the Western world criminalized attempted suicide. It was decriminalized because of new theories of mental health, the eugenics and euthanasia movement, a shift in legal focus to individual rights and privacy, and a lack of justification for penalizing self-harm through criminal means. Today suicide is only a crime in the few states that follow criminal common law, however, it is rarely prosecuted.
Although attempted suicide has been decriminalized in the United States, suicides occur twice as often as homicides each year. Suicide is the tenth leading cause of death in the United States for the overall population and the second leading cause of death among people between 10 and 34 years-old. The suicide rate has increased for thirteen years in a row with the highest rate since World War II in 2017.
In this series of posts I will analyze the decriminalization of suicide in light of the prison abolition framework offered by Allegra McLeod. McLeod is a legal scholar and abolitionist who defined the “prison abolition ethic” in the article Prison Abolition and Grounded Justice. The way attempted suicide changed in terms of criminal law is exemplified by two key concepts of prison abolition: decriminalization and preventative justice. I want to explore why decriminalization of suicide has been unsuccessful in lowering suicide rates, whether implementing other strategies outlined in the prison abolition framework would improve the situation, and if this offers any lessons in how prison abolition framework could be successfully applied to other crimes.
In this post I will to discuss the idea of prison abolition, the history of criminalization of suicide, and decriminalization of suicide. I will begin by discussing the prison abolitionist ethic, as outlined by Allegra McCleod. Then, I will discuss how different cultures view suicide and the history of suicide criminalization. This post focuses on England because the United States adopted English common law at its inception. Finally, I will discuss how and why suicide was decriminalized and where suicide stands in criminal law today in the United States.
This series of posts will address the criminalization of suicide and attempted suicide only. It will not discuss physician-assisted suicide, suicide pacts, influencing someone else to commit suicide, or accidental killings of another during attempted suicide.
The Prison Abolitionist Ethic
According to Allegra McLeod, prison abolition is the ethical, institutional, and political framework that aims to demolish the current criminal law and police system in exchange for positive social projects and institutions that work to prevent criminalized conduct. Prison abolition is about more than just tearing down prisons, it is about rethinking justice, security, public safety, and criminality.
There are several key concepts that are necessary for prison abolition to be successful. The first, and most significant, is preventative justice, which “designates a range of measures aimed at reducing the incidence of harmful behavior, typically by targeting the risks posed by specific individuals and less often by addressing the potential harm posed by given social situations.” These preventative measures range from alternatives to detention to funding social programs that reduce crime. Other key concepts are decriminalization, justice reinvestment (meaning “reinvesting criminal law administrative resources in other sectors and also reinvesting the concepts of justice and prevention w/ more expansive meaning”), creating safe harbors for vulnerable persons and communities to care for themselves, alternative livelihood programs to prevent conduct that would usually be addressed by criminal law administration, simple design innovations that improve security, and urban redevelopment that engages community members in projects and populating urban areas.
The following sections outline the history of suicide and attempted suicide criminalization and decriminalization. An abolitionist framework would start with decriminalization, but it wouldn’t end there. It would extend to the root causes of suicide and build out programs to prevent it. Decriminalization does little to promote public welfare without the addition of the concepts laid out in the prison abolition ethic.
Suicide in Different Cultures
The different cultural views of suicide begin within the word itself. The term “suicide” connotes an active verb of “killing.” The root “sui” means himself or herself and “-cide” means to kill. The term suicide did not exist until the 1600s. The terms self-homicide, self-destruction, and self-murder were previously used in the English language. Many other languages did not have an equivalent term because they regarded the act as a passive dying, rather than an active killing.
In ancient Rome, suicide was commendable when it was completed by warriors in battle when defeat was inevitable. In ancient Japan, seppuku was commendable in certain circumstances. Suicide was also deemed honorable in war contexts in several cultures. Buddhists in China widely accepted immolation and it is still accepted among some Buddhists today. Some instances of suicide are accepted in the Hebrew Bible and the New Testament, but it is unconditionally condemned in the Quran.
Suicide was first criminalized by the Romans. The Roman Council of Arles “denounced suicide as a diabolical inspiration” and criminalized suicide of servants in the fifth century to prevent the significant number of slave suicides. Attempted suicide of a soldier was also criminalized by Roman military law. The punishment, ironically, was death.
Christianity also played a part in suicide criminalization in Rome. St. Augustine condemned suicide as violating the Sixth Commandment “Thou shalt not kill”) unequivocally but excused it for the rare virgin suicides that resulted in sainthood, such as with Samson or Pelagia. The Council of Braga in the sixth century denied funeral rites to those who committed suicide. Dishonoring the corpses of persons who completed suicide became customary and then codified into law. Then forfeiture of a victim of suicide’s property to the lord later became codified. The exception was if the suicide was committed as a result of madness or illness. In the thirteenth century, Saint Thomas Aquinas further condemned suicide in his Summa Theologiae. The Catholic perspective of suicide condemnation became the dominant view across Europe.
Suicide Criminalization in England
The Catholic Church’s perspective most likely led to criminalization of suicide and attempted suicide in England. In the thirteenth century, Henry de Bracton considered suicide a felony and wrote that committing suicide resulted in a forfeiture of goods. By the fourteenth century, suicide was called felo de se and treated as a felony. In order to be considered a suicide, the self-killing had to have the legal element of “malicious intent.” Courts would hold post-mortem jury trials to determine intent. The criminal stigma and forfeiture of property could be avoided by a finding of insanity. Either way, there was a customary practice of driving a stake through the corpse’s heart and dumping the body in a pit near a crossroads. This was to prevent the spirit from returning, and ensure that, if the spirit did return, it would be confused as to which direction it should go.
William Blackstone believed that suicide was: “[a] double offence; one spiritual, in invading the prerogative of the Almighty, and rushing into his immediate presence uncalled for; the other temporal, against the king, who hath an interest in the preservation of all his subjects; the law has therefore ranked this among the highest crimes, making it a peculiar species of felony committed on one’s self.”
Suicide Criminalization in America
Suicide criminalization practices varied in the early colonies. Although the colonies adopted English common law, they did not adopt all aspects of it. Suicide was rampant among indigenous peoples and enslaved Africans. Along with the mass deaths of indigenous peoples due to diseases carried over from Europe and conflicts with colonizers, there were also numerous acts of suicide. Enslaved Africans often committed suicide on ships but this was soon prevented by force-feeding and nets which prevented jumping overboard. In the colonies, legislation provided state compensation to slave-owners for the suicide of slaves who were accused of felonies.
Early on in colonial America, Massachusetts adopted the impaling and burial by a highway law from England. However, none of the states considered suicide a crime by the nineteenth century. The colonies decriminalized suicide to set them apart from England during the Revolution and after, with no penalties remaining in the thirteen colonies by 1798. However, attempted suicide was considered a crime at common law. It was treated as a misdemeanor since it was considered an attempted felony. Some states have enacted legislation that expressly rejects common law crimes. If these states did not codify attempted suicide into their criminal statutes then attempted suicide would not be a crime in those jurisdictions. Some states did codify a criminal statute. Most of them mandated that attempted suicide is punishable by up to 2 years in jail, a $1000 fine, or both.
Suicide Decriminalization in England
Ideas about the criminalization and condemnation of suicide began to shift in the seventeenth century as a result of progressive intellectual, scientific, and cultural thought of the age of the Enlightenment. Non compos mentis, or insanity, jury verdicts rose in postmortem suicide trials, which protected families from being forced to forfeit their property. Before the seventeenth century, 2% of suicides had non compos mentis, or insanity verdicts. 42% of verdicts were non compos mentis in 1700 and they rose to 80% in 1750 and 97% in 1800.
In the eighteenth century, society became more secularized and the medical profession emerged. Public perception of suicide became more tolerant. Two suicides in the early nineteenth exemplified the shifting attitudes. The British Foreign Secretary committed suicide in 1822 which put his post-mortem jury in a tough position. They had to decide whether an esteemed member of government was a felon or insane. They returned with a verdict of temporary insanity, meaning that his property was not forfeited to the king and he did not have to have a crude burial by impalement at a crossroads. The next year, in 1823, a law student committed suicide and was subjected to a crossroads burial. There was public outcry and the practice was outlawed the same year by the Burial of Suicide Act.
The property implication of suicide, escheating to the king, was outlawed in the Forfeiture Act of 1870. Although there was no way to penalize completed suicide anymore, attempted suicide began to be considered a misdemeanor. Attempted suicide was officially decriminalized by statute by the Suicide Act of 1961.
Suicide Decriminalization in the United States
The nineteenth century brought the emergence of psychoanalytic theory, social science theory, social Darwinism, and the industrial revolution. Privatization of family life and urbanization created a new disaffected isolation which resulted in a rise of suicide.
The eugenics movement, which evolved from the ideas of social Darwinism, in combination with the creation of morphine, led to the rise of the euthanasia movement, which was a social movement that lobbied for the legalization of euthanasia. Euthanasia, or mercy killing, is “painlessly putting to death persons suffering from painful and incurable disease or incapacitating physical disorder or allowing them to die by withholding treatment or withdrawing artificial life-support measures.”
Suicide rates spiked during the Great Depression, sparking public awareness and conversations about death and suicide. The Euthanasia Society of America was founded in 1938 by a majority of eugenicists. Euthanasia had significant lobbying efforts and began to grow public support.
Then World War II stopped the euthanasia movement in its tracks. The Nazis murdered nearly twenty million people and committed mass atrocities. People were outraged and disgusted by the crimes of eugenicists written about in the newspapers. They began to equivocate the euthanasia movement with Nazis. After the war, law began to change in the United States, with a focus on individual rights and privacy exemplified by the Warren Supreme Court, which issued a series of landmark rulings in the 1960s.
By the 1970s most states with statutes criminalizing attempted suicide had repealed them. Today, only states that follow criminal common law have the ability to criminalize suicide. This is only a handful of states and attempted suicide is rarely prosecuted.
Suicide and Prison Abolition
The history of suicide criminalization and decriminalization demonstrates that ideas about crime have more to do with politics, religion, and the voices of those in power than it does about rational assessments of the public good. The logical response to preventing suicide or any other behavior looked down upon by society is to investigate why the act was committed and address the root cause. The historical response, however, was to criminalize suicide and punish it after the fact. This did not act as a deterrent but it did have the effect of punishing the family of the victim and enriching the government. This could be said for most crimes that are still criminalized. The root cause of criminal acts is not being addressed and crime continues to occur. The only difference is that suicide is no longer considered a crime. This is largely because of changing attitudes towards suicide that began to consider it a private issue rather than a public one and the fact that the government could no longer profit from suicide in the form of escheatment.
However, suicide rates have only risen since it has been decriminalized. In the last 50 years since decriminalization began, no one has called to criminalize it again to prevent suicide. Since we know that criminalization does not impact the rate of suicide then it probably does little to prevent other acts that are considered crimes. So why do we still punish crimes when this method is ineffective? Suicide is a good example to test out the prison abolition ethic because it was decriminalized even though its prevalence has not changed. Decriminalizing suicide illustrates the importance of the positive project of abolition. Without the society-building features, decriminalization does very little to promote the public welfare.
The next post will discuss how decriminalization has not been successful in lowering suicide rates, if implementation of any of the other key concepts of prison abolition would be effective, and whether suicide decriminalization offers any lessons for how the prison abolition ethic could be applied to other crimes.