Reading Packet 4

THE END OF LIFE

1. Hospice and the Crises at the End of Life  — Ira R. Byock

From U.S. House of Representatives, Committee on Government Reform hearing (1999)

2. Physician Assisted Death in Oregon: A Success — Kathryn Tucker

From Senate Committee on Judiciary subcommittee hearing (2006)

3. Decriminalizing Euthanasia in the Netherlands: A Failure — Wesley Smith

From Senate Committee on Judiciary subcommittee hearing (2006)

RACISM AND SEXISM

4. Black America: Beyond Equal Opportunity towards Equal Achievement—Lyndon B. Johnson

From Howard University Commencement Address, June 4, 1965

5. Apologizing to Native Americans -- Negiel Bigpond

From U.S. Senate Committee on Indian Affairs hearing (2005)

6. Hate Crimes: Grounds for Punishment — Frederick M. Lawrence

From U.S. House of Representatives, Judiciary subcommittee hearing (2007)

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#1

Hospice and the Crises at the End of Life, Ira R. Byock

Hospice programs are the least morally problematic way of dealing with terminal illness and end of life situations, certainly more so than physician assisted suicide and euthanasia. The aim of hospice programs is to provide a caring environment that meets the physical and emotional needs of terminally ill people as they live out their final days. Hospice programs are associated with a type of medical treatment known as palliative care, which seeks to reducing the severity of a disease’s symptoms, rather than curing the disease itself. The essay below is by Ira R. Byock, a physician and Director of Palliative Medicine at Dartmouth Hitchcock Medical Center. He has authored the book Dying Well (1997) and is a leading spokesperson on hospice facilities. Byock argues here that health care facilities today are not equipped to compassionately deal an ever-growing number of terminally ill people. Pain medication is inadequate, patients’ preferences are not honored, and families often lose life savings to cover medical costs. Hospice programs, he argues, are an important answer to the problem, but they are plagued by intrusive government oversight have the effect of discouraging people from using them. He concludes that this problem needs to be fixed before society should recognize the ‘right’ to preemptive death such as through assisted suicide.

. . .

HOW PEOPLE DIE IN AMERICA

There is no greater urgency facing American society than relieving the crisis that surrounds dying and care for the dying in our country. The Institute of Medicine’s report, Approaching Death, details the severity and pervasive nature of this crisis and concludes that there are serious deficiencies in medical education, health systems financing, attitudes and culture, and extensive errors of omission and commission in clinical practice.

            Dying patients and their families have known this for a long time. Even within otherwise excellent medical institutions, pain and physical suffering among dying Americans remains inadequately treated - or even recognized. Up to 40% of dying patients receive grossly inadequate analgesia. Being of minority ethnicity, older than 80 or having dementia seriously Increase the risk of having one’s pain untreated. In addition, most Americans still die in institutions, approximately 60% in hospitals and 20% to 25% in nursing homes.

            Patient’s preferences for care often are not honored, even when those choices are clearly conveyed. As if that is not bad enough, our health care system routinely pauperizes people and their families for being chronically ill and not dying quickly enough. In the large SUPPORT study, one third of families of dying patients reported losing most or all of the family’s major source of income; a third reported losing the family’s life savings; and 20% said that a family member had to either move or delay their own medical care, education, or career to meet the basic needs of their dying loved ones.

            Cultural denial marks the confused and conflicted way our society approaches life’s end. Research and public opinion surveys demonstrate that it’s not death so much as dying that we fear. We are terrified of becoming ill; being physically dependent and in pain, and we worry most about becoming a burden to others. However, although we all say we want control over the way we live and the way our lives end, only a small percentage of us fill out a living will or durable power of attorney for health care. Many people with far advanced illness refuse to talk about cardiopulmonary resuscitation or mechanical ventilation with their doctors. Most people say they would prefer that their families make decisions for them if they become unable to speak for themselves, but only a few of these people tell their families what kind of care they would want.

            The resulting fear, deep frustration and anger fuel the assisted suicide movement. Unable to face the stark reality of this end-of-life crisis, many people have embraced legalizing physician-assisted suicide as a “quick fix” that would allow us to avoid the dark and twisted roots of the crisis.

CARE FOR THE AGED

In the late 1940’s our nation awakened to a silent epidemic of pediatric failure to thrive. Rene Spitz and his colleagues studied foundling homes in which orphans were cared for and found the mortality was alarmingly high. Spitz determined that the key deficiency in the foundling homes was lack of human interaction. Babies would be fed, cleansed, swaddled and then lay untouched until it was the next time to be fed or have their diapers changed. He described the blank, listless stares of the infants.

            The expressionless faces of too many elderly residents in America’s long term care facilities call these studies to mind. They, too, are often untouched unless they are wet or it is time to be fed. We have an epidemic of geriatric failure to thrive in America today. The public is only now beginning to grasp the nature of the problem and has yet to grasp it’s breadth. Nevertheless, the problem grows.

            Today, aides in America’s home health and long term care industries are over worked and woefully underpaid. These remain entry level jobs, often at minimum wage and without health benefits. It is no wonder that the annualized turnover rate among these people is over 100%. This level of churning in the workforce inhibits meaningful training. And staffing is so short that aides rarely have time to spend simply listening to and visiting with elderly or ill residents.

            The graying of America will accelerate dramatically between 2010 and 2030, as the baby boomers turn 65 years old. By the year 2030, 75 million Americans will be over 65, more than 20% of the population. In addition, there are 40 million Americans living now with chronic illness. Some estimates have that figure tripling by the middle of the 21st century.

            While the graying of America accelerates, private care-giving resources within our individual networks of relatives and close friends are rapidly falling. Social trends, including geographic mobility, smaller families and families in which both adults are working have all contributed to this decline. Specifically, in 1970 there were 21 healthy adults representing potential caregivers for every person 85 years or older. In 2030 there will be just six such potential caregivers for the aged and just four by the middle of the next century.

            Already families struggle to provide the sort of day to day, hour to hour, minute to minute care that we all want to give to our loved ones. I shudder to think of how hard it will be when it’s my generation’s turn to be cared for and our children’s turn to provide care.

THE BURDEN OF FAMILY CAREGIVING

Informal caregiving provided by relatives and close friends represents the unrecognized backbone of care in America. It is an enormous resource that can be supported and expanded as we grapple with the crisis of how badly Americans now die. A survey conducted in 1996 by the National Alliance for Caregiving and AARP found that nearly one quarter of households contained at least one caregiver. It is estimated that 25.8 million Americans spend an average of 18 hours per week caring for frail relatives. The economic impact of such care is extraordinary. It amounts to 196 billion dollars per year, more than formal home health care ($32 billion) and nursing home care ($83 billion) combined.

            Among the most poignant characteristics of the caregivers revealed by the NAC/AARP study, are the fact that 73% of caregivers are women. These women devote an average of 4.5 years to caregiving, but often as many as ten or more. And 15% of all caregivers and 31 % of those providing the highest levels of care report significant physical and emotional stress.

            Among the difficulties faced by caregivers are the profound needs of those for whom they care. Recently, researchers at the National Institutes of Health published an important study in the New England Journal of Medicine of caregiving needs among nearly 1,000 terminally ill patients living at home. Eighty-seven percent of the people needed help with things like transportation (62%), homemaking services (55%), nursing care (29%) and personal care (26%).

            These well documented facts must force American health policy makers and planners to expand the focus beyond the patient who is ill, including relatives and close friends who comprise a person’s “family” in our planning. These facts also compel us to look beyond the medical care to the care given by family and to the support provided by the persons community.

            In summary, the existing data have cast a light on a very disturbing picture of end-of-life care in America. But the same light also illuminates potential avenues for constructive change.

HOSPICE COULD BE ONE ANSWER

Hospice is a bright spot in this otherwise gloomy landscape, a hopeful beacon that exemplifies what we can achieve. Excellent hospice programs have provided us with a best practice standard, a benchmark against which to gauge the outcomes of our clinical and policy efforts.

            But hospice is wrestling with problems as well. Hospices now care for barely 20% of dying Americans and do so for rapidly diminishing periods of time. Numbers of admissions to hospice have actually increased to a current high of approximately 540,000 a year, but lengths of stay have plummeted to an all time low. In most programs, many patients receive care for barely two weeks. Intended to provide end of life care, hospices are now scrambling to provide brink of death care.

            The Medicare eligibility criteria of a six-month life expectancy has strongly and adversely influenced the delivery of hospice tare in America, severely limiting access to persons whose diseases, such as congestive heart failure, emphysema or senile dementias, are characterized by a prolonged or stuttering disease trajectory. Implementation by Medicare fiscal intermediaries of strict prognostic guidelines and rigid eligibility criteria for hospice admission threaten to further limit access to palliative care by patients with non-cancer diagnoses. In addition, these trends toward later referrals and shorter and shorter lengths of hospice care have substantially worsened under the influence of the Office of the Inspector General’s Operation Restore Trust [i.e., a federal program aimed at combating health care fraud, waste and abuse].

            Operation Restore Trust has sent a chill through American hospice programs. Hospice administrators and medical directors are worried -- with good reason -- that if they admit patients with slowly progressive, but ultimately terminal, illnesses who live beyond a few months, the program will be investigated for fraud for having admitted the patient. Death typically occurs suddenly and somewhat unpredictably for patients dying of chronic heart, lung or neurologic diseases, in the midst of slow, up and down decline. Thus, there is reluctance to admit them until they are obviously dying -- too late for them to realize most of the benefits of hospice care. Also, many hospice programs feel compelled to discharge patients who have become relatively stable with the comprehensive care hospice provides. Away from hospice care, these patients, decline more rapidly and die shortly thereafter. This is ethically and socially troubling. And unnecessary.

            In addition to preventing patients from receiving good hospice care, the Medicare intermediaries’ Focal Medical Review procedures and Operation Restore Trust investigations entail huge administrative costs for hospice programs, often Involve frozen payments and carry the risk of large recoupment. These events can threaten the very survival of a small or moderate sized community hospice program.

            With this level of intense scrutiny one would expect that the problem being addressed in this tiny sector of our nation’s health care industry would be proportionately large. Yet, the Office of Inspector General’s own report concludes that instances of abuse In Medicare’s two billion dollar hospice program are uncommon.

            Is it necessary to be focusing such intense scrutiny on hospice programs? It is worth recalling that in the 1989 OBRA legislation, Congress added the unlimited fourth benefit period to the Medicare Hospice Benefit and the 6 month prognosis criteria was softened with statutory language adding, “if the disease runs it’s normal course.” Both actions were taken in recognition of the medical uncertainty regarding prognostication and in an attempt to address the reluctance of physicians to refer to hospice, or the tendency to refer too late.

            Instances of fraud and abuse should be vigorously pursued and prosecuted. But oversight programs must be conducted with an awareness of the social context and potential unintended consequences of the actions. Government programs to uncover abuse and responsibly administer public funds must also preserve fair and equitable access to critically needed services by suffering people.

IT DOESN’T HAVE TO BE THIS WAY

The most maddening aspect of the crisis in end-of-life care is that it need not exist. Dying is inherently hard, but it need not be horrible. We possess the medical expertise and more than enough resources to ensure that no one will die in physical agony. Pain and other distressing symptoms among dying persons can always be alleviated. Doctors and nurses may not be able to eliminate a person’s pain, but we ‘are always are able to make it a little less severe, a bit more tolerable.

            What we currently lack is a firm commitment on the part of the health care system to bring the power of medicine to bear in service of comfort and quality of life. Palliative care [i.e., symptom reduction] can be provided earlier In the course of a person’s illness. By managing symptoms, helping people address the difficult, but normal, psychosocial and spiritual concerns they may have and assisting with coordination of medical care and support services, including transportation and housekeeping, palliative care can dramatically improve the quality of life for the patient and his or her family.

            Beyond assurance of relative comfort, people need not die alone. Many times the caring presence of another person can soothe a dying person’s anxiety and distress. But comfort and companionship are not all there is.

            Over the years, patients and their families have taught me a surprising truth; this stage of life holds remarkable possibilities. When people are relatively comfortable, know that they will not be abandoned or allowed to become too heavy a burden on their families, they frequently use the time to strengthen bonds and complete relationships with people they love and create moments of profound meaning.

            People who are dying of a progressive illness have a chance to consider the question of what would be left undone if they died suddenly. In contrast to a sudden death, they can ask themselves what matters most and say and do many of the things that come in answer to those questions.

COMPLEMENTARY THERAPIES

When basic good care is provided, the complementary therapies have a wonderful contribution to make to people’s comfort and quality of life. The “complementary therapy” that I most commonly employ is the simple practice of eliciting and .listening to people’s stories. In the process of life-review, people often achieve a better sense of the meaning of their own life; their struggles and regrets as well as their triumphs and joys. They also may attain a deeper sense of the meaning of life in general.

            Obviously for many people approaching death, the spiritual aspects of life come to the fore. Spirituality and religion are not synonymous. Although many people cherish a felt connection to God, spirituality also exists in a felt connection to one’s family that will live on for generations to come. And spiritual bonds can extend beyond family. Fatally injured soldiers may express a connection to their country which will survive partly through their sacrifice. In Montana, people I care for commonly express a sense of connection to the wilderness, the rivers and the mountains into which their body or ashes will go.

            A number of alternative or complementary therapies represent resources for inner growth. Massage therapies can provide moments of peace and generate positive physical memories to balance the pain of illness. Therapeutic touch, an increasingly accepted nursing technique, can alleviate patients’ pain and anxiety. Relaxation training and meditation can help a person center swirling thoughts and calm emotions. Meditation and contemplative prayer can provide a place of safety and distance, not from, but within, the experience. This ability to remain centered and “well within oneself” In the middle of distraction, doubt, anxiety and bodily discomfort is recognized by many cultures and religious traditions as being critical preparation for the transition from life.

            The techniques of dream work and guided imagery, skillfully practiced, can help people explore inner realms and uncover rich insights from their unconscious. Breath work can allow access to otherwise hidden domains of personal and transcendent experience.

            A person’s culture, values, beliefs and temperament will all influence which, if any, of these practices will be helpful. But a common element among these techniques and therapies is that they foster a sense of inner confidence and openness. By relaxing body and mind a person can become more open to and less fearful of the mystery that awaits.

COSTS OF BETTER CARE

This is one national crisis whose solution need not cost more money. When the basics of good medical and supportive care are provided, families are able to care for their loved ones at home. It’s what patients and families want to do.

            Because dying people are, by definition, the sickest patients in the health care system, their care will never be inexpensive. However, home-based care of people with advanced illness, although not cheap, is much less costly than the Institution-based, medically focused care dying people currently receive. Indeed, as comprehensive as it is, even full hospice care is significantly less expensive than the care that is provided in its absence.

            Although hospice is less expensive than our “high-tech” curative care, statutory requirements that a person give up life-prolonging care as a requirement for hospice under Medicare erect a significant barrier to utilizing hospice. This requirement imposes a “terrible choice” on seriously ill patients and their families. They must acknowledge that the patient is officially “dying,” an emotionally devastating milestone that no one wants to cross. They also may need to relinquish their relationship with their oncologist, cardiologist, neurologist or pulmonologist and give up access to the hospital or another round of chemotherapy. Expensive medications to build up blood counts or treat resistant cases of nausea and vomiting may not be available under hospice care. Is it any wonder that some people refuse to make that choice?

            But, in fact, once admitted to hospice programs, the vast majority of patients and families are delighted with the care they receive. They become confident of being cared for, even in emergencies and as confidence builds. They tend to focus more on quality than absolute quantity of life. By providing a skilled and reliable home-based alterative to ambulance transports, emergency rooms, MRI’s and ICU’s, hospice experience shows that high levels of hands on care can be provided while remaining cost effective.

            This either-or approach to Medicare reimbursement for hospice care is built on the untested assumption that providing life-prolonging and palliative care together would be too costly. The experience in Canada and Britain would strongly challenge this assumption. In both countries, care for patients with chronic, progressive illness is of higher quality and significantly less cost. Although both health care systems have their problems, hospice is widely available, and few people worry about leaving their family financially devastated as they die.

            An important new model of affordable, enlightened long term care is provided by the Eden Alternative. Initially developed by Dr. William Thomas. the Eden Alternative has become a virtual movement within progressive segments of long term care, especially dementia care. In Eden nursing homes, there is strong emphasis on .greening” the environment with plants and pets. Intergenerational activities between seniors and young children and pleasurable human interaction are also fostered. The impact of “edenizing” nursing homes on patients with dementia can be profound. People who have been withdrawn often brighten when Interacting with a colorful bird, affectionate dog or cooing baby. Even having responsibility for a plant has been shown to have notable impact on a person’s health.

GOVERNMENT’S ROLE

The field of palliative care has advanced dramatically. Reimbursement structures and government policies have not kept pace. Unless bold and creative new solutions are helped to flourish, Americans won’t achieve the goals they say they want; to live out their lives in comfort and at home.

            Where do we start? First, a formal audit of the effects of prevailing statutory limitations and regulatory policies on access to needed services and quality of care for people who are dying is urgently needed.

            Second, creative models for delivering care have been developed and are ready for further testing. . . .

            Third, government can help by ensuring that medical education includes sufficient content in symptom management and the core skills of communication and ethical decision making.

            Fourth, compensation of aides in the nation’s home health and long term care programs must provide them with a living wage and their own health benefits. Requirements for training and certification of aide level personnel must be raised. So, too, staffing levels must be raised, enabling aides in nursing homes the time to give adequate care to the residents. The costs of these “high touch” improvements would be modest and more than likely would be offset by a corresponding reduction in futile “high tech” care and emergency admissions to hospitals and intensive care units.

            Fifth, America’s families are already giving their fair share in caring for their loved ones -- in fact many are doing so at the cost of injury to their own health. They deserve support. Government can provide tax breaks for caregivers and, as one of the nation’s major employers, can model flexible workplace and health benefit policies, setting an example for industry to follow.

            As someone who has actively opposed the legalization of physician-assisted suicide, I can tell you that opposition to physician-assisted suicide is shallow and insincere unless it is wedded to a constructive program of caring that Includes Increasing the number of health care professionals who are able to offer skilled care.

OTHER PLAYERS

Government can ensure equitable access to critically needed services such as hospice and home care. But ultimately, this national crisis is not one that can be fixed by government alone.

            The communities of our nation’s neighborhoods, workplaces, schools and the faith communities of our congregations also have critical roles to play. Each of us as friends, co-workers and neighbors can reach out to those we know as they are dying and to the families we know are struggling to provide care. We can even reach out to strangers in need. Compassion In Action’s Twilight Brigade of volunteers is an excellent example of what can be achieved. The critical service they provide is to show up. In so doing they give tangible evidence that they care and that the person who is dying still matters to them.

            Other programs around the country also provide us with valuable models of volunteer training and community-based support. The Stephen’s Ministry programs, Parish nursing programs, Care Team Network programs in Texas and Alabama, among others, often American faith communities, workplace communities and neighborhoods examples of strategies that work. We can and must build on these important examples.

CONCLUSION

In the midst of this crisis in end-of-life care, we have an opportunity to transform the way American society approaches the inevitable end of life. The root problems that comprise this crisis are many and deep, but every one can be addressed. We can build a future in which no one has to die alone or with their pain untreated. Congress can provide critical leadership in approaching this national crisis. Ultimately, the real solution to this national crisis lies in strengthening communities in which people share a sense of common life and look after one another, because to ignore each other’s needs would seem as unnatural as it is.

            Before we allow our society to recognize a so-called “right” to preemptive death, we must honor a basic human right to die in relative comfort, in the presence of caring people and in a clean, dry bed.

            Each of us can play an important role in realizing this goal, as legislators, as clinical professionals, but also as family members, friends and neighbors. We can see to it that people are cared for in a way that ensures relative comfort, prevents a sense of isolation but that also and honors people in their passing.

            The real solution to the crisis of care for the dying ultimately will emerge one person at a time by treating people in a medically competent, genuinely caring and even loving manner, allowing them to feel wanted, worthy and dignified even in their terminal frailty and physical dependence. . . .

Source: Adapted from U.S. House of Representatives, Committee on Government Reform hearing on Improving Care at the End of Life with Complementary Medicine (1999). Notes have been removed.

Questions for Review

1. According to Byock, what is the similarity between the orphanage crisis in late 1940s and care for the aged today?

2. What are some of the problems faced by family care giving today?

3. How does governmental oversight and efforts at fraud detection negatively impact hospice programs?

4. What are some of the complementary therapies that would enhance care for the aged and terminally ill?

5. How might volunteer groups help the situation?

Questions for Analysis

1. Byock argues that “Before we allow our society to recognize a so-called ‘right’ to preemptive death, we must honor a basic human right to die in relative comfort, in the presence of caring people and in a clean, dry bed.” Explain his rationale and whether you agree.

2. Examine some of the complimentary therapies mentioned by Byock and indicate which of any might be especially useful in enhancing a caring environment for the aged and dying.

3. Byock argues that listening to people’s stories gives them a better sense of life’s meaning. Explain why this might be the case.

4. Byock argues that government fraud detection efforts should be relaxed with hospice programs since it has the unintended consequence of discouraging people from participating. Do you agree that governmental oversight should be relaxed for the reasons Byock gives? Explain.

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#2

Physician Assisted Death in Oregon: A Success

Kathryn Tucker

In 1994, voters in Oregon passed a ballot measure legalizing physician assisted dying. Known as the “Death with Dignity Act,” the measure allows for terminally ill patients to acquire through their physician a prescription for a lethal dose of medication, which the patient, and not the physician, would administer him or herself. The text of the Death with Dignity act is detailed, but the essential elements of it are these:

· “An adult who is capable, is a resident of Oregon, and has been determined by the attending physician and consulting physician to be suffering from a terminal disease, and who has voluntarily expressed his or her wish to die, may make a written request for medication for the purpose of ending his or her life in a humane and dignified manner. . . .”

· “‘Terminal disease’ means an incurable and irreversible disease that has been medically confirmed and will, within reasonable medical judgment, produce death within six months.”

· “A valid request . . . [must be] signed and dated by the patient and witnessed by at least two individuals who, in the presence of the patient, attest that to the best of their knowledge and belief the patient is capable, acting voluntarily, and is not being coerced to sign the request.”

· “To ensure that the patient is making an informed decision, [the attending physician shall] inform the patient of: (a) His or her medical diagnosis; (b) His or her prognosis; (c) The potential risks associated with taking the medication to be prescribed; (d) The probable result of taking the medication to be prescribed; and (e) The feasible alternatives, including, but not limited to, comfort care, hospice care and pain control.”

· “In order to receive a prescription for medication to end his or her life in a humane and dignified manner, a qualified patient shall have made an oral request and a written request, and reiterate the oral request to his or her attending physician no less than fifteen (15) days after making the initial oral request. At the time the qualified patient makes his or her second oral request, the attending physician shall offer the patient an opportunity to rescind the request.”

The measure was controversial and in many ways stands as a test case as to whether a legalized policy of physician assisted dying might be abused. The article below is by attorney Kathryn Tucker, who defended Oregon’s Death with Dignity Act in a landmark Supreme Court case on the issue. She argues here that, since the Death with Dignity Act became law, there has been no evidence of abuse, coercion or misuse of the policy of physician assisted dying. It was carefully crafted to avoid such problems, and those who use the Dignity Act are well educated, insured, and have good pain management, but “find that the cumulative burden of their terminal illness is intolerable.” There is nationwide support for assisted dying, she argues, and there should be a nationwide law permitting it.

I. INTRODUCTION

. . . More than eight years of experience in the state of Oregon has demonstrated that risks to patients are not realized when a carefully drafted law is in place. In light of the Oregon experience, even previously staunch opponents have recognized that continued opposition to such a law can only be based on personal moral or religious grounds. The State of Vermont recently concluded, after thorough review of the Oregon experience, that: “it is [quite] apparent from credible sources in and out of Oregon that the Death with Dignity Act has not had an adverse impact on end-of-life care and in all probability has enhanced the other options.”

            Arthur Caplan, Director of the Center for Bioethics at the University of Pennsylvania School of Medicine, after reviewing the Oregon data stated: “I was worried about people being pressured to do this. But this data confirms, for the seventh year, that the policy in Oregon is working. There is no evidence of abuse or coercion or misuse of the policy.”

            The American Public Health Association, in an amicus brief filed in the Supreme Court of the United States recently, advised the Court:

Researchers have consistently found that experience in Oregon does not bear out concerns that physician-assistance 'would be disproportionately chosen by or forced on terminally ill patients who were poor, uneducated, uninsured, or fearful of the financial consequences of their illness.’

II. OVERVIEW OF OREGON LAW AND EXPERIENCE WITH IMPLEMENTATION:

A. Passage and Challenges

The Oregon Death with Dignity Act (“Dignity Act”) was passed in 1994 through the initiative process. Opponents of the Dignity Act have worked since then to overturn this law. First they sought relief from the Federal Government, urging the Drug Enforcement Administration (“DEA”) to take action against Oregon physicians who acted in compliance with the law on the basis that such activity violates the Controlled Substances Act (“CSA”).

            The DEA initially opined that its agents could revoke the registrations of physicians who assisted in hastening deaths under the Dignity Act. U.S. Attorney General Janet Reno, however, overruled this position, concluding that the CSA did not reach such conduct. Opponents then sought, in two successive sessions of Congress, to amend the CSA to expand its scope to reach the Dignity Act. Both efforts failed in the face of strong opposition from the medical community founded on the concern that the proposed measures would exacerbate physicians’ fears regarding the use of controlled substances in pain management.

            A change in federal administration and philosophy led to a change in legal interpretation. The Bush Administration’s first Attorney General, John Ashcroft, issued a Directive on November 6, 2001 (the “Ashcroft Directive”), advising that the Department of Justice had concluded that prescribing controlled substances under the Dignity Act violated the CSA” .

            The Ashcroft Directive was challenged in federal court by the state of Oregon, an Oregon physician and pharmacist, and a group of terminally ill Oregonians, who asserted that it violated the CSA, the Administrative Procedure Act and the U.S. Constitution. The federal district court, the Ninth Circuit Court of Appeals, and the United States Supreme Court all concluded that the Directive exceeded the authority granted under the CSA, and a permanent injunction was entered. The Supreme Court held that the Attorney General did not have the authority to effect a “radical shift” in the balance of state-federal power as it pertains to the regulation of the practice of medicine. The Court reaffirmed the traditional state-federal balance of power in regulating the practice of medicine, specifically upholding Oregon’s physician-assisted dying law as a legitimate regulation of medicine. By noting that General Ashcroft’s view of physician-assisted dying was but “one reasonable understanding of medical practice,” the Court made clear that Oregon’s view also is reasonable.

B. Implementation of the Oregon Law

The Dignity Act establishes tightly controlled procedures under which competent, terminally ill adults who are under the care of an attending physician may obtain a prescription for medication to allow them to control the time, place, and manner of their own impending death. The attending physician must determine, among other things, that the patient is mentally competent, an Oregon resident, and confirm their diagnosis and prognosis. To qualify as “terminally ill” a person must have “an incurable and irreversible disease that has been medically confirmed and will, within reasonable medical judgment, produce death within six months.”

            The attending physician must also inform persons requesting such medication of their diagnosis and prognosis, the risks and probable results of taking the medication, and alternatives to taking their own lives, including, but not limited to, hospice care and pain relief. A consulting physician must confirm the attending physician’s medical opinion.

            Once a request from a qualifying patient has been properly documented and witnessed, and all waiting periods have expired, the attending physician may prescribe, but not administer, medication to enable the patient to end his or her life in a humane and dignified manner. The Dignity Act immunizes physicians and pharmacists who act in compliance with its comprehensive procedures from civil or criminal sanctions, and any professional disciplinary actions based on that conduct.

            The Dignity Act also requires healthcare providers to file reports with the State documenting their actions; thus, Oregon’s experience with legal physician-assisted dying has been extensively documented and studied. To date, the Oregon Health Division and/or the Oregon Department of Human Service Office of Disease Prevention and Epidemiology have issued eight annual reports that present and evaluate the state’s experience with the Dignity Act. Related reports and articles have also been published in leading medical journals. These reports constitute the only actual source of reliable data regarding the experience of legal, regulated physician-assisted dying in America.

            These reports have shown the dire predictions of those initially opposed to the Dignity Act to be baseless. The data clearly demonstrate that the option of physician-assisted dying has not been unwillingly forced upon those who are poor, uneducated, uninsured or otherwise disadvantaged. The Reports show the following:

• use of physician-assisted dying is strongly associated with a higher level of education; those with a baccalaureate degree or higher were 7.6 times more likely than those without a high school diploma to choose physician-assisted dying.

• ninety-nine percent of patients opting for physician-assisted dying during the Dignity Act’s first six years had some form of health insurance and eighty-six percent were enrolled in hospice care.

• use of physician-assisted dying is limited. During the first six years in which physician-assisted dying was a legal option, a total of only 171 Oregonians chose it. The number of terminally ill adults choosing this option in 2003 represented only one-seventh of one percent—i.e., 0.0014 percent—of Oregonians who died that year.

            Indeed, rather than posing a risk to patients or the medical profession, the Dignity Act has galvanized significant improvements in the care of the dying in Oregon. These include:

• greatly increased enrollment by Oregon physicians in Continuing Education courses to improve their knowledge of the use of pain medications for the terminally ill, improving their ability to recognize depression and other psychiatric disorders, and more frequently referring their patients to hospice programs.

            In sum, the available data demonstrate that making the option of assisted dying available, far from posing any hazard to patients or the practice of medicine, has galvanized improvements in end of life care, benefiting all terminally ill Oregonians.

            The experience in Oregon reveals much about why dying patients choose to hasten impending death. In nearly all cases, multiple concerns contributed to the request. The patient’s most frequently cited concerns include a decreasing ability to participate in activities that made life enjoyable, the loss of autonomy, and the loss of dignity.

            A core argument made in opposition to legalizing the option of assisted dying contends that what terminally ill patients really need is good pain management and palliative care, not hastened death. These opponents contend that motivation to improve pain management will be undermined if assisted dying is an available option. Yet, as noted above, the Oregon experience has shown that legalization of assisted dying has galvanized efforts to improve pain management, and hospice enrollment in Oregon is stunningly high among patients who choose to make use of the Dignity Act. Terminally ill Oregonians do not choose assisted dying because they have untreated pain, quite the contrary; Oregonians have access to good pain and symptom management. Only the relatively few patients who find that the cumulative burden of their terminal illness is intolerable, and who persist in a desire to hasten impending death, go on to utilize the Dignity Act.

III. OVERVIEW OF SUPPORT FOR THE OPTION OF PHYSICIAN AID IN DYING

Though Oregon is the only state to have yet legalized the option of physician aid in dying, support for the option is widespread nationwide.

• Harris poll, January 2002, found that sixty-five percent of respondents support legalization of the right to physician-assisted dying and sixty-one percent favored implementation of a version of the Dignity Act in their own state.

• Another group of studies found that between sixty-three and ninety percent of people with a terminal illness support a right to physician-assisted dying and would like to have the option available to them.

• In California, surveys in March 2006 and March 2005 found that 70% of California residents support the idea that “incurably ill patients have the right to ask for and get life-ending medication.” An assisted dying measure introduced in the California State Legislature in 2005 has garnered strong support.

• Support is found among persons of diverse religious faiths.

Support is also strong among physicians:

• A national survey conducted in March 2005 found that 57% of physicians believe it is ethical for a physician to assist a competent, dying patient hasten death.

• A 2001 survey published by the Journal of the American Medical Association found that fifty-one percent of responding physicians in Oregon supported the Dignity Act and legalization of physician-assisted dying.

• A nationwide survey published in 2001 in the Journal of General Internal Medicine found that forty-five percent of responding physicians believed that physician-assisted suicide should be legal, whereas only thirty-four percent expressed views to the contrary.

• Mental health professionals recognize that dying patients can choose aid in dying and be fully mentally competent.

• A significant number of medical associations have decided to embrace a position of “studied neutrality” on the question of legalizing physician-assisted dying, recognizing the division within the medical community on the question.

IV. THE BACK ALLEY, COVERT PRACTICE

Although legal only in Oregon, physicians throughout the country regularly receive requests for assistance in dying. Nearly thirty-percent of physicians responding to a 1998 New England Journal of Medicine survey stated that, since entering practice, they had received a request from patients to hasten death. Of those physicians who had received such a request, twenty percent had complied.

            A survey of physicians in Washington revealed that twelve percent of had received a request to hasten death during the previous year, and twenty-four percent of the patients who requested medications to hasten death received them, notwithstanding the fact that Washington does not have a law in place like the Dignity Act.

            Patients who cannot find a physician willing to assist under existing law often act alone or with assistance from family members. Many people shared such stories in amicus briefs submitted to the Supreme Court in the Glucksberg, Quill and OR v. Gonzales cases. These stories detailed the suffering of loved ones who did not have access or authority to end their own lives. One woman told the story of her husband who had terminal cancer of the spine, lungs, and lymphatic system. Unwilling to await death in a drugged state, her husband kissed his wife good-bye and shot himself in the front yard. “I wish I could have been with him at the end, but he said ‘no, it will be messy.’”

            Another woman detailed the death of her daughter who was dying of bone cancer. Despite the excruciating pain, her daughter feared for her mother’s participation in ending her life. “I should be able to talk with my doctor and plan this, not ask my mom. Mom, what if you go to prison? What will happen to you?” Nonetheless, the woman assisted her daughter by giving her medication. “It was the ultimate act of love a mother could do for her suffering, dying child.” When her daughter died, the woman was finally able to hug her daughter without hurting her. Many other such stories have been told: from loved-ones who helped patients die, to others who helplessly watched patients die and the resulting effects on the surviving family members.

            Thus, the question is not whether assisted dying will occur, but rather whether it will occur in a regulated and controlled fashion with safeguards and scrutiny, or whether it will occur covertly, in a random, dangerous and unregulated manner.

V. CONCLUSION

In Glucksberg and Quill the Supreme Court recognized that Justice Brandeis’s concept of the states as laboratories was particularly applicable to physician assisted dying. The Court’s conclusion in those cases that the federal constitution does not bar states from prohibiting physician assisted suicide rested in large part on a reluctance to reach a premature constitutional judgment that would cut off the process of democratic decision making in the states.

            It is timely, prudent and humane for states to enact laws to empower terminally ill, mentally-competent adult citizens to control the timing and manner of their deaths by enabling them to obtain medications from their physician that could be self-administered to bring about a peaceful and humane death, subject to careful procedures. Passage of such laws would harm no one, and would benefit both the relatively few patients in extremis who would make use of them, and a great many more who would draw comfort from knowing this option is available should their dying process become intolerable to them.

Source: Senate Committee on Judiciary subcommittee hearing, The Consequences of Legalized Assisted Suicide and Euthanasia (2006)

Questions for Review

1. what kind of legal challenges have been made to the Dignity Act?

2. What is the profile of the typical person who availed his/herself of the Dignity Act?

3. What are the typical reasons that patients have given for using the Dignity Act?

4. Critics of the dignity act argue that patients really need is good pain management and palliative care, not hastened death. How does Tucker respond?

5. Describe some of the “back alley” and covert suicide practices that terminally ill people have resorted to.

Questions for Analysis

1. Based on the quotations from the Death with Dignity Act in the editor’s introduction to this essay, which parts of it are most important for preventing abuse, and why?

2. Tucker argues that “even previously staunch opponents [to the Dignity Act] have recognized that continued opposition to such a law can only be based on personal moral or religious grounds. Her implication is that such a basis for opposition is insufficient to guide public opinion on this issue. Do you agree, and why?

3. Review the statistics that Tucker presents regarding support for assisted dying among U.S. citizens and physicians. Is such support strong enough to justify a law allowing it?

4. Tucker argues that in the absence of laws permitting assisted dying, people will end their lives anyway. Is this a sufficient reason for legalizing assisted dying?

___________________

#3

Decriminalizing Euthanasia in the Netherlands: A Failure

Wesley Smith

The Netherlands has a long history of liberal social policies, which in recent times has included euthanasia. Technically, laws against it are still on the books, but at the same time the law permits a defense from doctors who follow to official guidelines. Thus, for all practical purposes it is legal, and is the only place in the world where it is openly practiced. What is key to the guidelines is that patients may voluntarily request euthanization from their doctors if they are experiencing unbearable suffering with a lasting longing for death. Countries around the world scrutinize the Dutch experience with euthanasia as a test case for potential problems and what the effects of legalized euthanasia might be if permitted elsewhere. The essay below is written by attorney Wesley Smith, a critic of euthanasia and author of the book Forced Exit: Euthanasia, Assisted Suicide, and the New Duty to Die (2006). Smith argues here that over the past 30 years the Dutch practice of euthanasia has gone down a slippery slope of abuses, which should serve as a serious warning to US policy makers. While euthanasia in the Netherlands was originally presented as being for rare occurrences, it then became frequent and applied to “categories of people whose assisted deaths would have once provoked outrage.” Smith particularly notes how euthanasia use has expanded to include patients who experience emotional suffering, but no physical suffering. Also, a growing range of infants and children are being euthanized. He argues that the guidelines themselves are routinely discarded, largely because the Dutch government fails to prosecute physicians who violate them.

… There are two deep ideological beliefs asserted by advocates for legalizing assisted suicide. The first is radical individualism that perceives the right of personal autonomy as being virtually absolute. Accordingly, promoters of assisted suicide generally believe that “the individual’s right to self-determination—to control the time, place, and manner of death” is a paramount liberty interest. The second ideological principle underlying assisted suicide advocacy is that killing (ending life) is an acceptable answer to the problem of human suffering.

            Assisted suicide is usually couched in terms that would limit assisted suicide to those who are terminally ill. But given the philosophical/ideological principles that underlie the euthanasia movement—that autonomy is paramount and killing is a valid answer to human suffering—restricting assisted suicide to the dying becomes utterly illogical. After all, many people experience far greater suffering and for a far longer period than people who are terminally ill. Thus, once the premises of assisted suicide advocacy become accepted by a broad swath of the medical professions and the public, there is little chance eligibility for “permitted” suicide will remain limited to the terminally ill.

            We need only look to the experience of the Netherlands to see the destructive force that the implacable logic of euthanasia ideology unleashes. The Dutch have permitted euthanasia and assisted suicide since 1973. Euthanasia became an integral part of Dutch medicine after a court ruling that refused to meaningfully punish a physician, Geetruida Postma, who had euthanized her mother. The court accepted the premise—supported by both the prosecution and the defense—that most Dutch doctors favored euthanasia in some cases. Accordingly, even though convicted of murder, Dr. Postma received only a one-week suspended sentence and a year’s probation.

            To justify its action, the Court established the first “boundaries” for euthanasia practice in the Netherlands. Among these were the requirements that the patient be considered incurable, implying that the patient must suffer from a severe physical illness; that the patient’s suffering be subjectively unbearable; that the request for termination of life be in writing; and that there should be adequate consultation with other physicians before euthanasia could be carried out. Inclusion of these conditions in the court’s decision became the basis for subsequent public and government acceptance of euthanasia in the Netherlands.

            With the Postma decision, the Dutch stepped boldly onto a steep slippery slope. Other court decisions soon followed, with each widening and further liberalizing the conditions under which euthanasia would not be punished. Thus, even though euthanasia remained technically illegal until 2002, it soon became entrenched in Dutch medical practice.

            In 1993, the Dutch Parliament formalized the permissive “decriminalized” system of euthanasia permissiveness that had been first crafted by the courts. Under this approach, so long as doctors followed the guidelines when euthanizing patients, they would not be prosecuted. These guidelines included:

• The request must be made entirely of the patient’s own free will and not under pressure from others.

• The patient must have a lasting longing for death.

• The request must be made repeatedly over a period of time.

• The patient must be experiencing unbearable suffering.

• There must be no reasonable alternatives to relieve suffering than euthanasia.

• Doctors must consult with at least one colleague who has faced the question of euthanasia before.

• Only a doctor can euthanize a patient.

• The euthanasia must be reported to the coroner, with a case history and a statement that the guidelines have been followed.

            In actual practice these guidelines were porous and provided scant protection for the weak, vulnerable, and despairing, nor, as we shall see, have they inhibited doctors from euthanizing patients who fell outside the guidelines’ parameters.

            At this point it is important to recall that when euthanasia was first accepted in the Netherlands, it was supposed to be a rare event, to be resorted to only in the most unusual cases of “intolerable suffering.” The guidelines were designed specifically to keep euthanasia occurrences few and far between by establishing demanding conditions that had to be met, at the risk of criminal prosecution. Over time, however, doctors began to interpret the conditions loosely and even ignore them altogether. In the few circumstances where the law took notice, the courts accommodated expanded euthanasia through continual loosening of the meaning of the guidelines.

            This is the typical pattern of the assisted suicide movement. Life-ending actions by doctors are always presented to the public as being advocated as a “rare’ occurrence, to be applied only when nothing else can be done to alleviate suffering. Proponents soothingly assure a doubtful public, as the New York euthanasia advocate Dr. Timothy Quill once put it, that assisted suicide will be restricted to “the patient of last resort, [to be] taken only when hospice care stops providing comfort and dignity,” when “all alternatives have been exhausted.” But once accepted widely and put into actual practice—as the Dutch experience clearly demonstrates—it quickly ceases to be rare, nor is killing resorted to only when all else fails. Instead, in the words of the physician, Dr. K. F. Gunning, perhaps the most notable Dutch opponent of euthanasia, “Once you accept killing as a solution for a single problem, you will find tomorrow hundreds of problems for which killing can be seen as a solution.”

            Euthanasia was finally formally legalized in the Netherlands in 2001, effective 2002. In the thirty-plus years since euthanasia was redefined in the Netherlands as a legitimate tool of medical practice instead of a serious crime, cultural biases have changed. No longer constrained by conscience or culture, thanks to a redefinition of euthanasia as medical treatment instead of killing, Dutch doctors now terminate categories of people whose assisted deaths would have once provoked outrage, and do so in numbers that were not anticipated when the practice was first promoted in 1973. Rather than being rare, statistics show that euthanasia is now almost a matter of medical routine.

THE REMMELINK REPORT

In 1990, responding to the ongoing heated debate about Dutch euthanasia and the many anecdotes being told internationally about the involuntary killing of patients by doctors, the Dutch government decided to determine how euthanasia was actually being carried out and appointed an investigative committee for that purpose. Called the Committee to Investigate the Medical Practice Concerning Euthanasia, it was commonly known as the Remmelink Commission, after the committee’s chairman, Professor J. Remmelink, then the attorney general of the Dutch Supreme Court.

            The commission’s two-volume report, known as the Remmelink Report, was issued in 1991. The Remmelink Report included complete statistical data upon which it based its conclusions. Independent analysis of this rich source of information had a profoundly negative impact on the world’s view of Dutch euthanasia. According to the Remmelink Report, about 130,000 people die each year in the Netherlands. Of these, approximately 43,300, or about one third, die suddenly—from catastrophic heart attacks, stroke, accidents, etc.—thus precluding medical decision making about end-of-life care. That leaves approximately 90,000 people whose deaths involve end-of-life medical decision making each year.

            With that in mind, here are the figures about euthanasia-related deaths in 1990, derived from the Remmelink Report’s published statistical data:

• 2,300 patients were euthanized (killed) by their doctors upon request, and 400 people died through physician-assisted suicide, for a total of 2,700 doctor-induced deaths. That is approximately 3 percent of all deaths involving end-of-life medical care. The equivalent percentage in the United States would be approximately 41,500 deaths.

• 1,040 died from involuntary euthanasia, lethal injections given without request or consent—three deaths every single day. These deaths constitute slightly more than 1 percent of all cases involving end-of-life medical care. (The same percentage in the United States would be approximately 16,000 involuntary killings per year.) Of these involuntary euthanasia cases, 14 percent, or 145, were fully competent to make their own medical decisions but were killed without their request or consent anyway. (The same percentage in the United States would be more than 2,000 who would be killed.) Moreover, 72 percent of the people killed without their consent had never given any indication they would want their lives terminated.

• 8,100 patients died from an intentional overdose of morphine or other pain-control medications, designed primarily to terminate life. In other words, death was not a side effect of treatment to relieve pain, which can sometimes occur, but was the intended result of the overdose. Of these, 61 percent (4,941 patients) were intentionally overdosed without request or consent. The equivalent percentage in the United States would be approximately 78,000.

            These figures are startling. Of the approximately 90,000 Dutch people whose deaths involved end-of-life medical decision-making in 1990, 11,140 were intentionally killed (euthanized) or assisted in suicide—or 11.1 percent of all Dutch deaths involving medical decision-making! This is approximately 8.5 percent of Dutch deaths from all causes. Of these killings, more than half were involuntary (1,040 involuntary lethal injections and 4,941 involuntary intentional overdoses). Applying those percentages to the U.S. death rate would mean more than 170,000 deaths each year caused by euthanasia or assisted suicide, and about 85,000 of these involuntary, more than the current number of U.S. suicides and homicides combined.

            It should also be kept in mind that the Remmelink statistics probably underestimate the actual number of deaths caused by euthanasia and assisted suicide. A study conducted by the Free University at Amsterdam revealed that two thirds of Dutch general practitioners have certified a patient’s death as resulting from natural causes when in fact it was euthanasia or assisted suicide. Another Dutch study arrived at a similar conclusion, finding that only 28 percent of doctors were honest about their euthanasia killings when filling out death certificates. A more recent Dutch study, written up in the New England Journal of Medicine in November 1996, found that only 41 percent of all euthanasia deaths were reported to the authorities. This same study revealed that 23 percent of physicians interviewed had killed patients without having received an explicit request. Along a similar vein, a 2003 study published in The Lancet found that “the rate of euthanasia had significantly increased” between 1995 and 2001, while “the rate of ending life without a patient’s explicit request remained virtually unchanged.

A PRACTICE BEYOND EFFECTIVE CONTROL

In 1999, a statistical analysis of Dutch euthanasia practices published in Journal of Medical Ethics concluded that the Dutch promise of “effective regulation ring hollow” and that killing by doctors in the Netherlands “remains beyond effective control.” And for good reason: As University of Haifa’s Raphael Cohen-Almagoran a self-described ideological believer in euthanasia admitted in his 2004 book, Euthanasia in the Netherlands: The Policy and Practice of Mercy Killing, Dutch euthanasia policy:

…does not work because all of the guidelines, without exception, are broken time and time again. It is not always the patient who makes the request for euthanasia or physician-assisted suicide. Often the doctor proposes euthanasia to the patient. Sometimes, the family initiates a request. The requirement that the request be voluntary is thus compromised. On occasion, the patient’s request is not well considered…[T]here have been cases in which no request was made and patients were put to death. Furthermore, the patient’s request is not always durable and persistent as required.

            Beginning with the Remmelink Report and continuing thereafter with virtually every other study of Dutch euthanasia practices—whether by proponents or opponents of medicalized killing—report after report has demonstrated clearly that guidelines do not protect and do not restrict. And why should they? The Dutch government has clearly indicated it has no interest in forcing doctors to toe the line by its infrequent prosecution of doctors who violate euthanasia regulations, and in the rare case of a conviction, never imposing meaningful punishment. For example, the British Medical Journal reported on a general practitioner who killed his elderly comatose patient with a lethal injection, was convicted of murder but received a one week suspended sentence, hardly a meaningful penalty despite having violated virtually every protective guideline.

            But the issue goes much deeper than law enforcement authorities refusing to enforce the rules. What euthanasia really did to the Dutch was to profoundly alter the nation’s conception of right and wrong. With the widespread acceptance of a euthanasia consciousness in the Netherlands, the guideline limitations became mere window dressing that made little actual difference at the bedside to doctors or, indeed, to much of the general public. Finding the proverbial exception to the rule became a standard practice, which in turn, soon changed the exception into the rule. The official guidelines then expanded to meet the actual practice.

            The psychiatrist Dr. Herbert Hendin, medical director of the American Foundation for Suicide Prevention, is one of the world’s foremost experts on Dutch euthanasia. Over the last several years, Hendin has held extensive discussions with Dutch doctors who euthanize patients and has reviewed the records of actual cases. Dr. Hendin believes that many doctors in the Netherlands feel justified in performing involuntary euthanasia, because a system that accepts killing as a legitimate medical practice “encourages some to feel entitled to make [euthanasia] decisions without consulting the patient.” As an example, Hendin recounts his interview with a pro-euthanasia doctor who justified killing a nun who had requested not to be killed on the basis of religious belief, because he felt she was in too much pain.

            To prove the existence of cases that violate the official guidelines, it is not necessary to rely on anecdotal evidence. Such cases have even been documented in euthanasia-friendly documentaries originally produced in the Netherlands and later shown in the United States. One such documentary, broadcast over public television on the program The Health Quarterly in 1993, revealed how broadly the Dutch guidelines are interpreted.

            One case documented in the film concerns a man named Henk Dykema, who at the time of filming was asymptomatic HIV-positive. Dykema feared the afflictions that he expected to befall him and had been asking his doctor to kill him for more than a year. The film shows the doctor telling Dykema that he might live for years at his current stage of infection, but the patient wants none of it. The doctor, a general practitioner, then discussed Dykema’s case with a colleague, also a general practitioner. Significantly, no psychiatrist was consulted or involved. Finally, the doctor agreed to provide a poisonous drug cocktail to Dykema, even though he was not suffering any significant physical symptoms.

            Dykema’s assisted suicide was clearly not a last resort, as required by the Dutch guidelines. He and his doctor did not explore all other possible options, such as psychiatric treatment, which could well have alleviated his anxiety and depression. Nor was he told of the actions the doctor could have taken to relieve his suffering when he did become ill. The doctor didn’t even wait until his patient had actual symptoms of AIDS.

            Dr. Hendin, analyzing Dykema’s case from a psychiatrist’s perspective, commented, “The patient was clearly depressed. The doctor kept establishing that the man was persistent in his request, but did not address the terror that underlay it.” Now consider this: had the doctor called in suicide prevention experts to help Dykema instead of assisting his suicide, Dykema might well have survived long enough to benefit from the drugs that now extend the lives of HIV patients for many years.

            The documentary also shows Maria, a twenty-five-year-old woman with anorexia nervosa, asking for euthanasia. She is in remission but fears a recurrence of her malady, stating: “I’ve thought about dying day and night, and I know that if relief does not come, I will return to the old pattern, the pattern of self-punishment, hurting myself I know it. I feel it, and therefore I hope the release will come soon and I die.” Maria’s doctor agrees to assist her suicide, justifying his abandoning his patient to her worst fears, “It is not possible to have a good quality of life for her.” This case was even too much for the authorities, who brought charges against the doctor. However, the euthanasia consciousness had so permeated the justice system that a judge ruled that Maria’s assisted suicide was justified because her suffering had made her life unbearable.

            Similar tragedies can be found in many published investigations of Dutch euthanasia. For example, The Oregonian reported on a woman with skin cancer who was euthanized. She was not in pain, nor was she in a terminal stage of her illness. Rather, she was upset by the scars on her face and demanded euthanasia from her doctor, or else—the threat being that she would “jump from the balcony.” Her doctor, to his later expressed regret, accommodated her wish to die.

            Studies indicate that families, rather than patients, sometimes decide when the time has come for euthanasia. According to Dr. Hendin, doctors called in such cases “usually advocate euthanasia,” because they “support the relatives’ desire to be free from the burden of caring for the patient.” One such case occurred when a wife told her husband to choose euthanasia or a nursing home. Not wanting to be cared for by strangers, he chose death. The doctor killed him, despite knowing of the coercion.

Dancing With Mr. D, a revealing book written a few years ago by a Dutch doctor, Bert Keizer, demonstrated how farcical the protective guidelines have become in the Netherlands. Keizer works in a nursing home, where he cares for—and sometimes kills—disabled, elderly, and dying people. He looks upon euthanasia as a necessary and proper, albeit distasteful, part of his job. As depicted in the book, so do his colleagues, patients, and their families.

            Keizer is brutally honest in revealing his own attitudes about his patients. He depicts the lives of frail and dying people as pointless, useless, ugly, grotesque. Those with whom Keizer interacts all seem to share these views, including his colleagues, family members of patients, and the patients themselves. This allows Keizer to kill patients without consequence other than having a few bad dreams.

            And kill his patients Keizer does, again and again. One man he euthanizes probably has lung cancer but the diagnosis is never certain. A relative tells Keizer that the man wants to be given a lethal injection, a request later confirmed by the patient. Keizer quickly agrees to kill the man. Demonstrating the utter uselessness of “protective guidelines,” Keizer never tells his patient about treatment options or how the pain and other symptoms of cancer can be palliated effectively. He never checks to see if the man has been pressured into wanting a hastened death or is depressed. Keizer doesn’t even bother to confirm the diagnosis with certainty. When a colleague asks why rush, and points out that the man isn’t suffering terribly, Keizer’s radical view of autonomy and his acceptance of killing as an answer to serious human illness, leads him to snap irritably:

Is it for us to answer this question? All I know is that he wants to die more or less upright and that he doesn’t want to crawl to his grave the way a dog crawls howling to the side walk after he’s been hit by a car.

            Another of Keizer’s patients is disabled by Parkinson’s disease. The patient requests to be killed, but before the euthanasia can be carried out, he receives a letter from his brother, who uses a religious argument to urge him to change his mind. The letter causes the man to hesitate, upsetting Keizer, who writes:

I don’t know what to do with such a wavering death wish. It’s getting on my nerves. Does he want to die or doesn’t he? I do hope we won’t have to go over the whole business again, right from the very start.

            Keizer involves the nursing home chaplain to assure the man that euthanasia will not upset God. The man again thinks he wants to die. Keizer is quick with the lethal injection, happy the man has “good veins,” and the man expires before his uncertainty can disturb his doctor’s mood again.

            Dutch doctors now also assist the suicides of depressed people who are not physically ill—and the practice was approved explicitly by the Dutch Supreme Court in the death of Hilly Bosscher. Bosscher wanted to kill herself because she had lost her two sons—one to suicide in 1986 and the other to brain cancer in 1991. Bosscher had briefly received psychiatric treatment years earlier for the depression and suicidal thoughts she experienced after her son’s suicide. On the day her second son died, she failed in an attempt to kill herself. She still wanted to die but hesitated at unassisted self-destruction for fear that she would be hospitalized if she tried and failed again. However, she moved the graves of her two sons to the same cemetery and purchased a burial plot for herself so that she could be buried between them.

            Bosscher began to attend meetings of the Dutch Euthanasia Society, where she met Dr. Boudewijn Chabot. She told Chabot that she didn’t want therapy, “because it would loosen the bonds with her deceased sons.” Chabot took her as a patient anyway and met with her on four occasions between August 2 and September 7, 1991. Chabot did not attempt to treat her. Rather, he interviewed her to determine her prognosis. After these interviews and his consultations, believing her to be suffering from “incurable grief”—and despite the complete absence of any physical illness—he helped Bosscher kill herself on September 28, 1991.

            Chabot was prosecuted, although it was never contemplated that he would be jailed or otherwise meaningfully punished. Indeed, the government’s own witness supported the assisted suicide. The Dutch Supreme Court, with the minor caveat that Chabot erred by not having a colleague independently examine the patient, validated Chabot’s actions. The basis of the ruling was that the law cannot distinguish between suffering caused by physical illness and suffering caused by mental anguish—which, of course, is where euthanasia leads with the sheer force of logic.

DUTCH EUTHANASIA LEADS TO PERMITTED INFANTICIDE

In the Netherlands, infants are killed because they have birth defects, and doctors justify the practice. A 1997 study published in the British Medical Journal, The Lancet, revealed how deeply pediatric euthanasia had metastasized into Dutch neonatal medical practice. According to the report, doctors killed approximately 8 percent of all infants who died in the Netherlands in 1995. Assuming this to be typical, this amounts to approximately 80-90 infanticides per year. Of these, one-third would have lived more than a month. At least 10-15 of these killings involve infants who did not depend on life-sustaining treatment to stay alive. The study found that 45 percent of neonatologists and 31 percent of pediatricians, who responded to study’s questionnaires, had killed infants. A follow up study of end-of-life decisions made for infants published in the April 9, 2005, found that nothing had changed. In 2001, “in 8%” of cases, drugs were administered to infants “with the explicit intention to hasten death.”

            In 2004, Groningen University Medical Center made international headlines when it admitted to permitting pediatric euthanasia and published the “Groningen Protocol,” infanticide guidelines the hospital utilized when killing 15-20 disabled newborns each year.” The Protocol creates three categories of killable infants: infants “with no chance of survival,” infants with a “poor prognosis and are dependent on intensive care,” and “infants with a hopeless prognosis,” including those “not depending on intensive medical treatment but for whom a very poor quality of life…is predicted.” Par for the course, authorities refused to prosecute even though pediatric infanticide is clearly murder under Dutch law.

            Apologists for the infanticide applauded Dutch doctors for going public with the Protocol. “As things are,” Eduard Verhagan, head of Groningen’s children’s clinic told the Associated Press, “people are doing this secretly and that is wrong. In the Netherlands we want to expose everything to let everything be subject to vetting.”

            Contrary to Dr. Verhagan’s assertion, it has long been known Dutch doctors kill disabled and dying babies—as The Lancet study of 1995 infanticides (published in 1997) cited above demonstrates. Indeed, a 1990 report of the Royal Dutch Medical Association (KNMG), Life-Terminating Actions with Incompetent Patients, set forth “requirements for careful medical practice” when ending the lives of handicapped newborns. The standard for permitting pediatric euthanasia was based on what Dutch doctors call an “unlivable life.” Rita Marker discussed Dutch infanticide in her seminal expose` of the international euthanasia movement, Deadly Compassion. I also wrote about Dutch infanticide practices in my 1997 edition of Forced Exit.

            Infants are not the only children who are eligible for euthanasia. Pediatric oncologists have provided a hulp bij zelfoding (self-help for ending life) program for adolescents since the 1980s, in which poisonous doses are prescribed for minors with terminal illness. Moreover, children who want physician-assisted death may be able to receive it without consent of their parents. Dutch euthanasia advocates have also agitated to reduce the age of consent to euthanasia to 12-year-olds.

DRAWING CONCLUSIONS

Unlike the Dutch, Americans do not come to the decision whether to accept legalized assisted suicide blindly. We have the Dutch experience to guide us. On the basis of their experience with euthanasia, what can we learn? First, the slippery slope is very real. As Dr. Gunning put it, the Dutch have proved that once killing is accepted as a solution for one problem, tomorrow it will be seen as the solution for hundreds of problems. Once we accept the killing of terminally ill patients, as did the Dutch, we will invariably, over time, accept the killing of chronically ill patients, depressed patients, and ultimately perhaps, even children.

            Second, adopting killing as an acceptable answer to human suffering eventually changes popular outlooks. The law not only reflects our values, but in our diverse age, it tells us right from wrong. Accordingly, once killing is redefined as medical treatment, it becomes transformed from “bad” into “good.” Thus, the guidelines intended to “protect against abuse” eventually are viewed not as protections but instead as hurtles separating sick and dying patients from the beneficence of death. In such an intellectual and cultural milieu, it becomes easy to justify ignoring or violating “guidelines.”

            Third, the Netherlands is a much more tolerant society than we are, generally more accepting of differences among people, such as those of race, gender, and sexual orientation. An editorial in the New England Journal of Medicine cited a plethora of studies that uncovered significant race-based inequality in the delivery of health care in the United States, and opined that the disparities in the delivery of health care apparently caused by racism need to be focused upon with the “rigor and attention given to other health concerns of similar magnitude.” These and other factors make it likely that legalizing and especially “routinizing” euthanasia in the United States would be especially dangerous for marginalized populations.

            Finally, the euthanasia virus is catching. A 2000 report found that 10 percent of Belgian deaths appear to result from euthanasia. With Belgian doctors clearly eager to follow the lead of their Dutch neighbor, Belgium formally legalized euthanasia in 2002. Notably, the first Belgian case, the killing of a man with multiple sclerosis, violated the guidelines; and just as occurs routinely in the Netherlands, the doctor involved faced no consequences. Now Belgium is set to legalize euthanasia for children. Indeed, Belgian doctors in Flanders have been found to commit infanticide in about the same numbers as their Dutch counterparts. Moreover, according to a study published in The Lancet, nearly 70% “of the physicians questioned…had either used lethal drugs for this purpose [to end infants’ lives] or could conceive of situations in which they would use them.”

            Given the profound import of the debate over assisted suicide, the federal government has a crucial role to play. By pursuing its own national public policy that unequivocally opposes transforming suicide and euthanasia, it can influence the national debate without infringing on important principles of federalism. Such policies could include enacting a statute declaring suicide not to be a legitimate medical use of federally controlled substances. It can broaden the prohibition of using federal funds for use in assisted suicide, under Medicaid, Medicare, in Veterans hospitals, and the like. Engaging the issue at the federal level would be consistent with the government’s obligation to promote the general welfare . . . .

Source: Senate Committee on Judiciary subcommittee hearing, The Consequences of Legalized Assisted Suicide and Euthanasia (2006)

Questions for Review

1. What are the two beliefs held by advocates of assisted suicide and euthanasia?

2. In what ways is the voluntary nature of the euthanasia request compromised in the Netherlands?

3. What is the Dutch Supreme Court’s view on euthanizing patients who experience only mental suffering, but no physical suffering?

4. How has euthanasia expanded to infanticide in the Netherlands?

5. In his conclusion, what is the “slippery slope” of euthanasia abuse that Smith believes is very real?

Questions for Analysis

1. Based on the information that Smith provides, is the pattern of euthanasia abuse really as serious as Smith maintains? Explain.

2. Assume that euthanasia abuses in the Netherlands are as bad as Smith maintains. In view of differences between Dutch and US culture, does this necessarily mean that such abuses would emerge in the US? Explain.

3. Smith notes the Dutch Supreme Court’s position that the law cannot distinguish between suffering caused by physical illness and suffering caused by mental anguish. Is there a reasonable distinction between physical pain and mental pain that might allow euthanasia in the former case but not in the latter?

4. The Dutch guidelines for euthanasia do not include a requirement that the patient must be terminally ill; such a stipulation is included in the Oregon Death with Dignity Act. Is this a serious omission in the Dutch policy that might account for most of the abuse that Smith mentions?

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#4

Black America: Beyond Equal Opportunity towards Equal Achievement

Lyndon B. Johnson

The American Civil Rights Movement of the 1950s and 1960s aimed at ending the legacy of racial discrimination against African Americans that was grounded in centuries of slavery and social oppression. At the time of the Civil Rights Movement, the inequalities between Blacks and Whites was staggering and called for serious governmental intervention. President Lyndon B. Johnson addresses this issue in the following landmark speech, delivered at Howard University’s commencement ceremony in June 4, 1965. Johnson argues here that achieving freedom and equal opportunity among Blacks is not enough, and justice will only be served if Blacks have equal achievement. This means that special governmental efforts must be taken to provide Blacks with decent jobs, homes, and welfare programs designed to keep families together. The equal achievement rationale that Johnson presents here underlies the affirmative action and preferential treatment hiring policies that became instituted throughout the US in later years.

I am delighted at the chance to speak at this important and this historic institution. Howard has long been an outstanding center for the education of Negro Americans. Its students are of every race and color and they come from many countries of the world. It is truly a working example of democratic excellence.

            Our earth is the home of revolution. In every corner of every continent men charged with hope contend with ancient ways in the pursuit of justice. They reach for the newest of weapons to realize the oldest of dreams, that each may walk in freedom and pride, stretching his talents, enjoying the fruits of the earth.

            Our enemies may occasionally seize the day of change, but it is the banner of our revolution they take. And our own future is linked to this process of swift and turbulent change in many lands in the world. But nothing in any country touches us more profoundly, and nothing is more freighted with meaning for our own destiny, than the revolution of the Negro American.

            In far too many ways American Negroes have been another nation: deprived of freedom, crippled by hatred, the doors of opportunity closed to hope.

            In our time change has come to this nation, too. The American Negro, acting with impressive restraint, has peacefully protested and marched, entered the courtroom and the seats of government, demanding a justice that has long been denied. The voice of the Negro was the call to action. But it is a tribute to America that, once aroused, the courts and the Congress, the President and most of the people, have been the allies of progress.

            Thus we have seen the high court of the country declare that discrimination based on race was repugnant to the Constitution, and therefore void. We have seen in 1957, and 1960, and again in 1964, the first civil rights legislation in this Nation in almost an entire century.

            As majority leader of the United States Senate, I helped to guide two of these bills through the Senate. And as your President, I was proud to sign the third. And now, very soon, we will have the fourth -- a new law guaranteeing every American the right to vote.

            No act of my entire administration will give me greater satisfaction than the day when my signature makes this bill, too, the law of this land.

            The voting rights bill will be the latest, and among the most important, in a long series of victories. But this victory, as Winston Churchill said of another triumph for freedom, “is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning.”

            That beginning is freedom; and the barriers to that freedom are tumbling down. Freedom is the right to share, share fully and equally, in American society: to vote, to hold a job, to enter a public place, to go to school. It is the right to be treated in every part of our national life as a person equal in dignity and promise to all others.

            But freedom is not enough. You do not wipe away the scars of centuries by saying, “Now you are free to go where you want, and do as you desire, and choose the leaders you please.”

            You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, “You are free to compete with all the others,” and still justly believe that you have been completely fair.

            Thus it is not enough just to open the gates of opportunity. All our citizens must have the ability to walk through those gates.

            And this is the next and the more profound stage of the battle for civil rights. We seek not just freedom, but opportunity. We seek not just legal equity, but human ability; not just equality as a right and a theory, but equality as a fact and equality as a result.

            For the task is to give 20 million Negroes the same chance as every other American to learn and grow, to work and share in society, to develop their abilities -- physical, mental and spiritual -- and to pursue their individual happiness.

            To this end, equal opportunity is essential, but not enough, not enough. Men and women of all races are born with the same range of abilities. But ability is not just the product of birth. Ability is stretched or stunted by the family that you live with and the neighborhoods you live in. by the school you go to and the poverty or the richness of your surroundings. It is the product of a hundred unseen forces playing upon the little infant, the child, and finally the man.

            This graduating class at Howard University is witness to the indomitable determination of the Negro American to win his way in American life.

            The number of Negroes in schools of higher learning has almost doubled in 15 years. The number of non-white professional workers has more than doubled in ten years. The median income of Negro college women tonight exceeds that of white college women. And there are also the enormous accomplishments of distinguished individual Negroes, many of them graduates of this institution, and one of them the first lady ambassador in the history of the United States.

            These are proud and impressive achievements. But they tell only the story of a growing middle class minority, steadily narrowing the gap between them and their white counterparts.

            But for the great majority of Negro Americans -- the poor, the unemployed, the uprooted, and the dispossessed -- there is a much grimmer story. They still, as we meet here tonight, are another nation. Despite the court orders and the laws, despite the legislative victories and the speeches, for them the walls are rising and the gulf is widening.

            Here are some of the facts of this American failure.

            Thirty-five years ago the rate of unemployment for Negroes and whites was about the same. Tonight the Negro rate is twice as high.

            In 1948 the 8 percent unemployment rate for Negro teenage boys was actually less than that of whites. By last year that rate had grown to 23 percent, as against 13 percent for whites unemployed.

            Between 1949 and 1959, the income of Negro men relative to white men declined in every section of this country. From 1952 to 1963 the median income of Negro families compared to white actually dropped from 57 percent to 53 percent.

            In the years 1955 through 1957, 22 percent of experienced Negro workers were out of work at some time during the year. In 1961 through 1963 that proportion had soared to 29 percent.

            Since 1947 the number of white families living in poverty has decreased 27 percent while the number of poorer nonwhite families decreased only 3 percent.

            The infant mortality of nonwhites in 1940 was 70 percent greater than whites. Twenty-two years later it was 90 percent greater.

            Moreover, the isolation of Negro from white communities is increasing, rather than decreasing as Negroes crowd into the central cities and become a city within a city.

            Of course Negro Americans, as well as white Americans, have shared in our rising national abundance. But the harsh fact of the matter is that in the battle for true equality too many, far too many, are losing ground every day.

            We are not completely sure why this is. We know the causes are complex and subtle. But we do know the two broad basic reasons. And we do know that we have to act.

            First, Negroes are trapped, as many whites are trapped, in inherited, gateless poverty. They lack training and skills. They are shut in, in slums, without decent medical care. Private and public poverty combine to cripple their capacities.

            We are trying to attack these evils through my poverty program, through our education program, through our medical care and our other health programs, and a dozen more of the Great Society programs that are aimed at the root causes of this poverty.

            We will increase, and we will accelerate, and we will broaden this attack in years to come until this most enduring of foes finally yields to our unyielding will.

            But there is a second cause, much more difficult to explain, more deeply grounded, more desperate in its force. And it is the devastating heritage of long years of slavery and a century of oppression, and hatred, and injustice.

            For Negro poverty is not white poverty. Many of its causes and many of its cures are the same. But there are differences -- deep, corrosive, obstinate differences -- radiating painful roots into the community, and into the family, and the nature of the individual.

            These differences are not racial differences. They are solely and simply the consequence of ancient brutality, past injustice, and present prejudice. They are anguishing to observe. For the Negro, they are a constant reminder of oppression. For the white, they are a constant reminder of guilt. But they must be faced and they must be dealt with and they must be overcome, if we are ever to reach the time when the only difference between Negroes and whites is the color of their skin.

            Nor can we find a complete answer in the experience of other American minorities. They made a valiant and a largely successful effort to emerge from poverty and prejudice.

            The Negro, like these others, will have to rely mostly on his own efforts. But he just cannot do it alone. For they did not have the heritage of centuries to overcome, and they did not have a cultural tradition which had been twisted and battered by endless years of hatred and hopelessness, nor were they excluded, these others, because of race or color; a feeling whose dark intensity is matched by no other prejudice in our society.

            Nor can these differences be understood as isolated infirmities. They are a seamless web. They cause each other. They result from each other. They reinforce each other.

            Much of the Negro community is buried under a blanket of history and circumstance. It is not a lasting solution to lift just one corner of that blanket. We must stand on all sides and we must raise the entire cover if we are to liberate our fellow citizens.

            One of the differences is the increased concentration of Negroes in our cities. More than 73 percent of all Negroes live in urban areas compared with less than 70 percent of the whites. Most of these Negroes live in slums. Most of these Negroes live together -- a separated people.

            And men are shaped by their world. When it is a world of decay, ringed by an invisible wall; when escape is arduous and uncertain, and the saving pressures of a more hopeful society are unknown, it can cripple the youth and it can desolate the men.

            There is also the burden that a dark skin can add to the search for a productive place in our society. Unemployment strikes most swiftly and broadly at the Negro, and this burden erodes hope. Blighted hope breeds despair. Despair brings indifference to the learning which offers a way out. And despair, coupled with indifference, is often the source of destructive rebellion against the fabric of society.

            There is also the lacerating hurt of early collision with white hatred or prejudice, distaste or condescension. Other groups have felt similar intolerance. But success and achievement could wipe it away. They do not change the color of a man’s skin. I have seen this uncomprehending pain in the eyes of the little, young Mexican-American schoolchildren that I taught many years ago. But it can be overcome. But for many, the wounds are always open.

            Perhaps most important, its influence, radiating to every part of life, is the breakdown of the Negro family structure. For this, most of all, white America must accept responsibility. It flows from centuries of oppression and persecution of the Negro man. It flows from the long years of degradation and discrimination, which have attacked his dignity and assaulted his ability to produce for his family.

            This, too, is not pleasant to look upon. But it must be faced by those whose serious intent is to improve the life of all Americans.

            Only a minority, less than half, of all Negro children reach the age of 18 having lived all their lives with both of their parents. At this moment tonight, little less than two-thirds are at home with both of their parents. Probably a majority of all Negro children receive federally-aided public assistance sometime during their childhood.

            The family is the cornerstone of our society. More than any other force, it shapes the attitude, the hopes, the ambitions, and the values of the child. And when the family collapses, it is the children that are usually damaged. When it happens on a massive scale, the entire community itself is crippled.

            So unless we work to strengthen the family, to create conditions under which most parents will stay together, all the rest: schools, and playgrounds, and public assistance, and private concern, will never be enough to cut completely the circle of despair and deprivation.

            There is no single easy answer to all of these problems.

            Jobs are part of the answer. They bring the income which permits a man to provide for his family.

            Decent homes in decent surroundings and a chance to learn -- an equal chance to learn -- are part of the answer.

            Welfare and social programs -- better designed to hold families together -- are part of the answer.

            Care for the sick is part of the answer.

            An understanding heart by all Americans is another big part of the answer.

            And to all of these fronts, and a dozen more, I will dedicate the expanding efforts of the Johnson administration.

            But there are other answers that are still to be found. Nor do we fully understand even all of the problems. Therefore, I want to announce tonight that this fall I intend to call a White House conference of scholars, and experts, and outstanding Negro leaders of both races, and officials of Government at every level. This White House conference theme and title will be, “To Fulfill These Rights.”

            Its object will be to help the American Negro fulfill the rights which, after the long time of injustice, he is finally about to secure.

            To move beyond opportunity to achievement.

            To shatter forever, not only the barriers of law and public practice, but the walls which bound the condition of man by the color of his skin.

            To dissolve, as best we can, the antique enmities of the heart which diminish the holder, divide the great democracy, and do wrong, great wrong, to the children of God.

            And I pledge you tonight that this will be a chief goal of my administration, and of my program next year, and in the years to come. And I hope, and I pray, and I believe, it will be a part of the program of all America.

            For what is justice?

            It is to fulfill the fair expectations of man.

            Thus, American justice is a very special thing. For, from the first, this has been a land of towering expectations. It was to be a nation where each man could be ruled by the common consent of all, enshrined in law, given life by institutions, guided by men themselves subject to its rule. And all -- all of every station and origin -- would be touched equally in obligation and in liberty.

            Beyond the law lay the land. It was a rich land, glowing with more abundant promise than man had ever seen. Here, unlike any place yet known, all were to share the harvest.

            And beyond this was the dignity of man. Each could become whatever his qualities of mind and spirit would permit; to strive, to seek, and, if he could, to find his happiness.

            This is American justice. We have pursued it faithfully to the edge of our imperfections and we have failed to find it for the American Negro.

            So it is the glorious opportunity of this generation to end the one huge wrong of the American Nation and in so doing, to find America for ourselves, with the same immense thrill of discovery which gripped those who first began to realize that here, at last, was a home for freedom.

            And all it will take is for all of us to understand what this country is and what this country must become.

            The Scripture promises: “I shall light a candle of understanding in thine heart, which shall not be put out.” Together, and with millions more, we can light that candle of understanding in the heart of all America. And once lit, it will never again go out.

Source: Howard University Commencement Address, June 4, 1965

Questions for Review

1. What are some elements of the revolution of the Negro revolution as described by Johnson?

2. Why is freedom and equal opportunity not enough to guarantee justice for Blacks?

3. What are the two reasons for the inequality of Blacks?

4. What are parts of the answer to the problem?

Questions for Analysis

1. The central theme of Johnson’s speech is that freedom and equal opportunity for Blacks is not enough, and equal achievement is needed. In view of the legacy of Black oppression in this country, is he correct that freedom and equal opportunity are not enough?

2. What kind of sacrifices should white America be willing to make to help Blacks reach equal achievement?

3. Johnson justifies government funded welfare and social programs for Blacks on the grounds that these will help keep Black families together. Is this a reasonable expectation of welfare programs?

4. While Johnson does not specifically mention affirmative action and preferential treatment hiring policies, what specifically in his speech might support this and why?

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#5

Apologizing to Native Americans

Negiel Bigpond

In recent decades, a movement has been underway to urge the U.S. Government to apologize to various races of people who had been adversely affected by discriminatory policies. In 1988 the U.S. Government apologized for the relocation and internment of Japanese Americans during World War II.  In 1993 it apologized for the 1893 overthrow of the Kingdom of Hawaii. A similar resolution first introduced in Congress in 2004 would call for an apology to Native Americans in acknowledgment of “a long history of official depredations and ill-conceived policies by the United States Government regarding Indian tribes.” The need for such an apology is explained in the essay below by Negiel Bigpond, a Native American businessman and Christian pastor. According to Bigpond, such an apology would be an important first step in bringing about reconciliation between Native American and other ethnic groups in the U.S. The long history of atrocities against Native Americans, he argues, is a direct cause of widespread poverty, poverty and  suicide on Indian reservations, where life expectancy as low as 40-45 years.

[BENEFITS OF AN APOLOGY]

. . . This vast and great land now called America is troubled and filled with brokenness and disorders of many kinds—high rates of crime, violence and murder, a divorce rate at 50 percent of all marriages, broken families, middle class people struggling to make ends meet even in a “good” economic time, widespread depression, suicide now the third greatest cause of death among all teenagers, rampant substance abuse and addiction, and more men and women in prison than in any other western nation. Racism and ethnic troubles abound. Many youth sit “homeless” as both parents work long hours. New and deadly types of disease are entering society. Death waits at our door.

            I believe that acknowledging past atrocities and asking the indigenous “first nations” people of this land for forgiveness is needed as a “first step” for a healing of the land now called America to be released. This will be a healing not just for Native American people, but all the people of this land—Black, white, Hispanic and Asian—all ethnic groups. Many ethnic and immigrant backgrounds have been involved since the “first contact” by Columbus and others.

            My international travels have shown me that many countries know the story of the Native American people and have studied the treatment of the Native People by the Federal Government. Some are now using our broken history as fuel to develop hatred toward America.

            Together, our purpose must be to heal the land and to remove the heaviness which I am sure that this Senate knows and deals with on a daily basis. The weight of the loss of millions of Native indigenous people, of our painful broken history, and the dishonor and disorder is great.

            All of our peoples are in great need of healing, especially as we are going through so much, in war, not just overseas, but here on the home front. Hatred and terrorism stare at us. We live in a time of great fear. Fear always leads to anger, hatred and strife. This anxiety streams into all of our homes, Native and non-native alike.

            In Native homes many of our children literally fight for life every day. With unemployment, alcoholism, drug addiction, suicide and accident rates very high, many homes have no mothers, or no fathers. Some might be physically there, but the love is not there, so the children turn to whatever is there for identity and release—false freedom. My people, our tribes, and our entire nation needs release and healing— true freedom.

            While the Bureau of Indian Affairs has been a good help along the way, it has been an incomplete help. The Bureau is not authorized to issue the type of resolution and bring about the reconciliation now under consideration.

            Members of the human family are not just mind and body. There is a spirit in each man, woman and child. We all know this in our hearts regardless of what we each think or believe. Just ask our warriors, our soldiers who are facing death today on the battlefields in Afghanistan, Iraq and many other places. And, the spirit of a person and of a people can be wounded and crushed.

            Apology, the exchange of forgiveness, and a show of respect and honor always brings a fresh freedom to our spirits, our minds, and our bodies. Apology and reconciliation is good medicine to the heart of a person or a nation. America needs this heart medicine and spirit healing. The broken promises and history of all of our peoples needs healing.

            Why? some of you ask, and say that apology is unnecessary because “the native people have always been a part of this government.” No, this government has never made treaties in the name of “In God We Trust” with any other people group in this country and then broken them all—372 treaties with the Native Peoples— all broken! There has been no public apology to this day. No U.S. President has sought forgiveness. Only a few have even made private statements. You, members of the U.S. Senate, are taking a historic step forward.

            Though Native soldiers have always courageously fought in above average ratios in the wars to defend this country and freedom—as is true in Iraq right now—this is not recognized. We are taken for granted. Evidence of the overall disregard and respect for Native Peoples is seen in the fact that we were not even granted U.S. citizenship until 1924. There has been no apology for this long-term rejection and dishonor. Our children know and feel this dishonor. Rejection causes sickness. Internal generational pain prompts mental disorder and causes the body to break down. There are unresolved root causes behind the sadness, the depression, the rampant diabetes, alcoholism and drugs and suicide. I know this as I pastor and look into the eyes of friends dying of diabetes.

            The generational rejection we are suffering kills. On some reservations there are six or more suicides a month. Over the last decade an entire generation of young people was sacrificed to an epidemic of suicide on the Standing Rock Reservation in North Dakota. The poverty on some reservations is worse than in your inner cities. It is the hidden poverty that most in this Nation know nothing about, nor do they care to. The poverty twists your thinking. Joy drains away, and you lose hope and heart. The pain is so great that it deceives. Native teenagers begin to give up and start thinking that suicide is good, that ending their own life will help the family. Life expectancy on some reservations is as low as 40–45 years in some cases— this is in affluent America today! But many Native people are hidden away, and few see or care to see, and to know.

[HISTORY OF ATROCITIES]

Many in the past, and many today still wish we would have been annihilated, and that we will yet die off. We were given diseased blankets on purpose, and many froze and died along the forced march on our Trail of Tears. Certainly the sometimes calculated decimation of the Native American peoples from upwards of 12 million to less than 4 million must be considered genocidal in nature? And, as in the Crusades and Jewish holocaust, many of the atrocities, massacres and forced removals came in the name of Christianity.

            Col. John Chivington who led the Sand Creek massacre on the morning of November 29, 1864 was a Methodist preacher. U.S. Lieutenant James Connor and other of Chivington’s “Christian” soldiers have written eye witness accounts of how our pregnant women were disemboweled and mutilated, and how their private parts were cut out and proudly displayed as “war trophies.” This slaughter at Sand Creek, and others like it happened just days after Chief Black Kettle had met with white leaders and “made peace” and was told to just raise the U.S. flag and everything would be all right. Black Kettle gathered and tried to calm his people and raised the flag, and then the hail of bullets began and lasted all day. Few escaped, and most all that did were attacked again by “Christian” militia 4 years later at the Washita River massacre and finished off. Dr. Jay Swallow, my Southern Cheyenne/ Sioux brother and co-founder of the Two Rivers Native American Training Center, is a direct descendant of the Sand Creek Massacre. His grandmother was one of the very few who escaped. She was a little girl and was hidden under a pile of wood. She survived the long day of slaughter and told her grandson. Dr. Swallow is another witness that can speak of the deep generational pain that Native people still carry from the days of massacre and suffering.

            Yes, our besieged Native people retaliated. Yes, there were atrocities on both sides. We are strong warriors, but you know how it is recorded that many of our Chiefs first welcomed you in peace. We also said that we would study you and see how your “message” made you live.

            The Bible your forbearers carried to us teaches that Satan, the fallen one, comes to steal, kill, and destroy. That Jesus of Nazareth who died on the Cross, once for the forgiveness of all men and women, comes to bring life and blessing, and to share it abundantly. So, many Native people remain confused by Christianity, and by the “Christians” who came and took and “settled” our lands, and drove us away. We now call this wrong spirit “bad Christianity.” It should not be surprising that most Native people still reject the “white man’s God,” and that many have returned to traditional Native religious practices. Some of us know that the Bible is the Word of Life from our Creator Father, and personally know Jesus Christ as Messiah and Lord, and are sorry for how many of our people cannot see Jesus and have rejected Him. By walking in ways of reconciliation and respect we are reintroducing Jesus and “good Christianity” to our Native people. The Bible is true, even if the spirit and past ways of many “Christians” was not right.

            The truth remains that our Native people were not received and affirmed and released. I know this from many years of personal experience, from my work with Native people in 158 tribes, in many prisons, as a alcohol and drug abuse counselor, and as I pastor and try to build strong faith and repair families in my churches.

            I know this from the humiliation and degradation I endured as a boy in the Chilocco Indian Boarding School. When I first arrived I was excited and happy to see so many young Natives in one place, with different languages and traditions, yet how we talked and laughed and built good relationships. Then we were forbidden to speak in our languages, had all of our hair cutoff into the “G.I.” haircut, and the school took on a military and prison atmosphere. I was made to stay in an old dorm hut with broken windows. I knew very cold winters and very hot summers there. We got poorer and began to fight and steal from one another—the government gave clothes to some tribes, and not to others, so jealousy and envy entered in, and were turned against one another. Some fought and others withdrew into isolation.

            We would try to stop the anger and bad feelings by drinking, or by sniffing glue, paint, or lighter fluid. If caught drinking or speaking our tribal languages or practicing our cultural traditions our privileges and even food were taken away. At times we were put on bread and water. Sometimes we were given a bit of cheese with the bread and water. We were put into solitary confinement and punished. I can remember one night I had to defend myself from one of the counselors who was trying to provoke me and start trouble so he could give me hours of work duty, or to make me stand all night in a corner, or on top of a one foot by one foot box with my nose to the wall. If we were caught sleeping, guards would walk up behind us and bang our heads into the wall. I received many bloody noses and cuts on my forehead. We were also made to scrub floors and walls with small hand brushes and even toothbrushes.

            The emotional and mental abuse was very bad. We were made to feel that we were nothing. We were called “dogs” and “stupid” and “Indian” in an angry, degrading, and mocking voice. There was sexual abuse as well that I would rather not talk about. I choose not to go into the details of all that happened there. When released and I returned home I would cry a lot. I developed resentments toward my parents and turned against authority. I could not trust authority. I could not adapt to public school. Many teachers treated Native and white students differently. I fought with white students who thought and acted like they were better than me. I got into trouble.

            I did go back to the school site in my later years after coming to a personal faith in Christ, getting reconciled with my parents. Some praying people came with me and helped me work through the issues and hurts and come into inner spiritual healing-reconciliation and healing is a process.

[THE POSSIBILITY OF FORGIVENESS]

Please know that we can forgive, if asked. For The Indian Removal Act and the Trail of Tears, we can forgive, if asked. For the Sand Creek and other massacres, we can forgive, if asked. For the Indian School degradation and injustice, we can forgive, if asked.

            Because God created us to be people of the land, who express gratitude and desire to live in harmony and respect with the earth, we have much to share and a great role to play in the healing of this Nation. We were 500 nations, and our Iroquois and other confederacies were examples that Benjamin Franklin and other of your 24 founding fathers studied. The word “caucus” springs from the manner of Native tribal government. Then, as now, it is good to sit together and peacefully seek for wisdom, sound counsel and direction to move forward.

            I know it takes one who is strong to ask for forgiveness, especially if they feel they had nothing personally to do with past injustices. But now, as you draw from your authority, strength and courage, together we will change the history of the human family, and help heal all brothers and sisters—from here in Washington out across the whole of this continent.

            To apologize and give honor where honor is due will displace the brokenness and blood guiltiness that is still crying out for justice. Respect and mutual regard will again flow between us, from one honorable nation to another. Our Native people are ready for this and desire this, but they just don’t trust in this because of the past history. But if they are shown and taken on this “first step,” then they will be able to believe again and will trust again.

            Just imagine what the people of the world would think, say, and do—if they saw this reconciliation take place. What would happen if the President who represents all the people of this Nation would stand and ask a people who will not go away and who has not forgotten, and who cannot forget—”Can and would you forgive this Nation for the wrongs our forefathers did to your people?” This is honorable and will return honor. The nations of the world would then have to look at the United States of America in a whole different way, in a new light. It will be a new day. I know healing and turning history is very difficult for some, but not impossible.

            Imagine a U.S. President standing before the great Native Nations of over 600 different tribes and saying, “We the people of the United States of America ask for your forgiveness—for the broken treaties, the massacres, and the forced removal of peoples from their lands—for forgiveness of these things that history records and tells us took place, so that we all might now live as One Nation Under God!” This will stir this world. Nothing like this has ever taken place in history with the force and reconciling impact over a nation as this will have.

            While reconciliation is a spiritual walk, it also releases mental and physical results— real changes that all are able to see. Healing of the heart and times of refreshing will come. Before my mother died she called me to her side and said in our Euchee tongue: “Nean-zo-d-towel-ute.” This means: “You are like a river and without you I cannot exist.” That is a picture of covenant life together. It is time to be the One Covenant Nation of many peoples our Creator desires. We must go forward and not look back again. Together, let us take this first step. This Resolution of Apology gives us ground to walk forward on.

            I respectfully submit this for the good of all our peoples—and for the healing of this whole land now called America.

Source: From U.S. Senate Committee on Indian Affairs hearing on Acknowledgment and Apology (2005).

Questions for Review

1. Why might some say that an apology is unnecessary, and how does Bigpond respond?

2. What are some of the atrocities that Bigpond mentions for which the U.S. Government needs to apologize?

3. Bigpond argues that “many of the atrocities, massacres and forced removals came in the name of Christianity.” What examples does he provide?

Questions for Analysis

1. Would an apology to Native Americans bring the kind of social healing that Bigpond suggests? Explain.

2. Bigpond notes that it may be difficult for people today to apologize for past injustices that they personally had nothing to do with. What might be the source of this reluctance?

3. The U.S. has a long history of injustices against ethnic groups, both at home and abroad. How many of these should the U.S. apologize for, and how important is an apology to Native Americans relative to other groups that might deserve an apology?

4. Bigpond argues that reconciliation through an apology would help reintroduce Jesus and “good Christianity” to Native Americans. Is this relevant to the need for an apology?

__________

#6

Hate Crimes: Grounds for Punishment

Frederick M. Lawrence

From U.S. House of Representatives, Judiciary subcommittee hearing (2007)

. . .Bias crimes are a scourge on our society. Is there a more terrifying image in the mind’s eye than that of the burning cross? Crimes that are motivated by racial hatred have a special and compelling call on our conscience. When predominantly Black churches were in flames across the South during the summer of 1996, it took only a matter of weeks for Congress to enact and the President to sign the Church Arson Prevention Act of 1996. The Hate Crime Prevention Act will take its place in the evolving Federal statutory response to bias-motivated violence; by some measures it will be the most important piece of Federal criminal civil rights legislation in nearly forty years, and, in some ways, the most important such legislation since Reconstruction. The proposed legislation raises many significant questions that implicate fundamental American values, including free expression, and federalism. I will focus on four inter-related questions:

(i) is it appropriate for a criminal law to punish on the basis of a perpetrator’s motivation?

(ii) should gender, sexual orientation, gender identity, and disability be included in a federal bias crime law?

(iii) are bias crime laws consonant with principles of free expression? and

(iv) is a prominent federal role in the prosecution and punishment of bias crimes consistent with the proper division of authority between state (and local) government and the federal government in our political system?

            I offer a firm answer in the affirmative to each of these questions. The punishment of bias crimes, with a substantial federal enforcement role, is not only permitted by doctrines of criminal law and constitutional law, it is mandated by our societal commitment to the equality ideal.

I. MOTIVATION AS AN ELEMENT OF BIAS CRIMES

Bias crimes are distinguished from “parallel crimes” (similar crimes lacking bias motivation) by the bias motivation of the perpetrator. A “gay bashing” is the parallel crime of assault with bias-motivated on the basis of sexual orientation. A cross burning on the lawn of a Black family is the parallel crime of vandalism or criminal menacing with racial motivation. Ordinarily, the criminal law is far more concerned with the perpetrator’s culpability -- did he, for example, act purposely, recklessly, negligently, or only accidentally -- rather than the actor’s motivation for his criminal acts. In the case of bias crimes, however, as with a select group of crimes where motivation is deemed relevant -- motivation is a critical and valid part of the definition of a crime.

            Motivation is a critical part of the definition of bias crimes because it is the bias motivation of the perpetrator that caused the unique harm of the bias crime. I will first address the way in which the resulting harm of a bias crime exceeds that of a parallel crime on each of three levels: the nature of the injury sustained by the immediate victim of a bias crime; the palpable harm inflicted on the broader target community of the crime; and the harm to society at large. I will then turn to the question of whether motivation may be punished. This question is distinct from the related question of whether punishment of bias crimes is consonant with the First Amendment right to free expression which I shall address below.

Motivation and the Harm Caused by Bias Crimes

Impact of Bias Crimes on the Immediate Victims

Bias crimes may be distinguished from parallel crimes on the basis of their particular emotional and psychological impact on the victim. The victim of a bias crime is not attacked for a random reason -- as is the person injured during a shooting spree in a public place -- nor is he attacked for an impersonal reason -- as is the victim of a mugging for money. He is attacked for a specific, personal reason. Moreover, the bias crime victim cannot reasonably minimize the risks of future attacks because he is unable to change the characteristic that made him a victim.

            Bias crimes thus attack the victim not only physically but at the very core of his identity. It is an attack from which there is no escape. It is one thing to avoid the park at night because it is not safe. It is quite another to avoid certain neighborhoods because of, for example, one’s race or religion. This heightened sense of vulnerability caused by bias crimes is beyond that normally found in crime victims. Bias crime victims have been compared to rape victims in that the physical harm associated with the crime, however great, is less significant than the powerful accompanying sense of violation. The victims of bias crimes thus tend to experience psychological symptoms such as depression or withdrawal, as well as anxiety, feelings of helplessness and a profound sense of isolation. One study of violence in the work-place found that victims of bias-motivated violence reported a significantly greater level of negative psycho-physiological symptoms than did victims of non-bias motivated violence.

            The marked increase in symptomatology among bias crime victims is true regardless of the race of the victim. The psychological trauma of being singled out because of one’s race exists for white victims as well as members of minority groups. This is not to suggest, however, that there is no difference between bias crimes committed by white perpetrators against people of color and those bias crimes in which the victim is white. A difference exists between Black and Hispanic victims and white victims concerning a second set of factors -- that is, defensive behavioral changes. Although bias crimes directed at minority victims do not produce a greater level of psychological damage than those aimed at white victims, they do cause minority bias crime victims to adopt a relatively more defensive behavioral posture than white bias crime victims typically adopt.

            The additional impact of a bias-motivated attack on a minority victim is not due solely to the fact that the victim was selected because of an immutable characteristic. This much is true for all victims of bias crimes. Rather, the very nature of the bias motivation, when directed against minority victims, triggers the history and social context of prejudice and prejudicial violence against the victim and his group. The bias component of crimes committed against minority group members is not merely prejudice per se but prejudice against a member of a historically oppressed group. In a similar vein, Charles Lawrence, in distinguishing racist speech from otherwise offensive words, described racist speech as words that “evoke in you all of the millions of cultural lessons regarding your inferiority that you have so painstakingly repressed, and imprint upon you a badge of servitude and subservience for all the world to see.” Minority victims of bias crimes therefore experience the attack as a form of violence that manifests racial stigmatization and its resulting harms.

            Stigmatization has been shown to bring about humiliation, isolation and self- hatred. An individual who has been racially stigmatized will often be hypersensitive in anticipation of contact with other members of society whom he sees as “normal” and will even suffer a kind of self-doubt that negatively affects his relationships with members of his own group. The stigmatized individual may experience clinical symptoms such as high blood pressure or increased use of narcotics and alcohol. In addition, stigmatization may present itself in such social symptoms as an approach to parenting which undercuts the child’s self-esteem and perpetuates an expectation of social failure. All of these symptoms may result from the stigmatization that results from non-violent prejudice. Non-violent prejudice carries with it the clear message that the target and his group are of marginal value and could be subjected to even greater indignities, such as violence that is motivated by the prejudice. An even more serious presentation of these harms results when the potential for physical harm is realized in the form of the violent prejudice represented by bias crimes.

The Impact of Bias Crimes on the Target Community

The impact of bias crimes reaches beyond the harm done to the immediate victim or victims of the criminal behavior. There is a more wide-spread impact on the “target community” -- that is, the community that shares the race, religion or ethnicity of the victim -- and an even broader based harm to the general society. Members of the target community of a bias crime experience that crime in a manner that has no equivalent in the public response to a parallel crime. Not only does the reaction of the target community go beyond mere sympathy with the immediate bias crime victim, it exceeds empathy as well. Members of the target community of a bias crime perceive that crime as if it were an attack on themselves directly and individually. Consider the burning of a cross on the lawn of an African-American family or the spray-painting of swastikas and hateful graffiti on the home of a Jewish family. Others might associate themselves with the injuries done to these families, having feelings of anger or hurt, and thus sympathize with the victims. Still others might find that these crimes triggered within them feelings similar to the sense of victimization and attack felt by these families, and thus empathize with the victims. The reactions of members of the target community, however, will transcend both empathy and sympathy. The cross-burning and the swastika-scrawling will not just call up similar feelings on the part of other Blacks and Jews respectively. Rather, members of these target communities may experience reactions of actual threat and attack from this very event. Bias crimes may spread fear and intimidation beyond the immediate victims and their friends and families to those who share only racial characteristics with the victims. This additional harm of a personalized threat felt by persons other than the immediate victims of the bias crime differentiates a bias crime from a parallel crime and makes the former more harmful to society.

            This sense of victimization on the part of the target community leads to yet another social harm uniquely caused by bias crimes. Not only may the target community respond to the bias crime with fear, apprehension and anger, but this response may be directed at the group with which the immediate offenders are, either rightfully or, even more troubling, wrongfully, identified. Collective guilt always raises complicated questions of blaming the group for the acts of certain individuals. But it is one thing when groups are rightfully identified with the immediate offenders, for example, the association of a bias crime offender who is a member of a skinhead organization with other members of that organization. It is quite another when groups are wrongfully identified with the immediate offenders. Consider, for example, the association of those individuals who killed Yankel Rosenbaum with the Crown Heights Black community generally, or of those who killed Yousef Hawkins with the Bensonhurst white community generally. In addition to generating the generalized concern and anger over lawlessness and the perceived ineffectuality of law enforcement that often follows a parallel crime, therefore, a single bias crime may ignite inter-community tensions that may be of high intensity and of long-standing duration.

The Impact of Bias Crimes on Society as a Whole

Finally, the impact of bias crimes may spread well beyond the immediate victims and the target community to the general society. This effect includes a large array of harms from the very concrete to the most abstract. On the most mundane level -- but by no means least damaging -- the isolation effects discussed above have a cumulative effect throughout a community. Consider a family, victimized by an act of bias-motivated vandalism, which then begins to withdraw from society generally; the family members seek safety from an unknown assailant who, having sought them out for identifiable reasons, might well do so again. Members of the community, even those who are sympathetic to the plight of the victim family and who have been supportive to them, may be reluctant to place themselves in harm’s way and will shy away from socializing with these victims or having their children do so. The isolation of this family will not be solely their act of withdrawal; there is a societal act of isolation as well that injures both the family that is cut off and the community at large.

            Bias crimes cause an even broader injury to the general community. Such crimes violate not only society’s general concern for the security of its members and their property but also the shared value of equality among its citizens and racial and religious harmony in a heterogeneous society. A bias crime is therefore a profound violation of the egalitarian ideal and the anti-discrimination principle that have become fundamental not only to the American legal system but to American culture as well.

            This harm is, of course, highly contextual. We could imagine a society in which racial motivation for a crime would implicate no greater value in society than the values violated by a criminal act motivated solely by the perpetrator’s dislike of the victim. But it is not ours, with our legal and social history. Bias crimes implicate a social history of prejudice, discrimination, and even oppression. As such, they cause a greater harm than parallel crimes to the immediate victim of the crime, the target community of the crime, and to the general society.

Motivation as an Element of the Crime

The fact that bias motivation is a key element of bias crimes has drawn criticism from some who have argued that bias crime laws impermissibly stray beyond the punishment of act and purposeful intent and go on to punish motivation. This concern was well stated by the Wisconsin Supreme Court, later overruled by the United States Supreme Court, in Wisconsin v. Mitchell :

            Because all of the [parallel] crimes are already punishable, all that remains is an additional punishment for the defendant’s motive in selecting the victim. The Not Prevail,” Detroit Free Press, Aug. 25, 1991, at 2F (stating that violence erupted between the African- American and Jewish community after the accidental killing of a black child by a Hasidic Jew). punishment of the defendant’s bigoted motive by the hate crimes statute directly implicates and encroaches upon First Amendment rights.

            This holding, however, is not required by a careful analysis of the relevant doctrines. Purely as a matter of positive law, concern with the punishment of motivation is misplaced. Motive often determines punishment. In those states with capital punishment, the defendant’s motivation for the homicide stands prominent among the recognized aggravating factors that may contribute to the imposition of the death sentence. For instance, the motivation of profit in murder cases is a significant aggravating factor adopted in most capital sentencing schemes.

            Bias motivation itself may serve as an aggravating circumstance. In Barclay v. Florida , the Supreme Court explicitly upheld the use of racial bias as an aggravating factor in the sentencing phase of a capital case. The Court reaffirmed Barclay in 1992 in Dawson v. Delaware . The prosecution in Dawson sought to use the defendant’s membership in the Aryan Brotherhood as an aggravating circumstance. The Court rejected the prosecution argument but only because the defendant had been convicted of a same race murder, not a bias-motivated murder, and because the prosecution did not argue that the defendant’s relationship with the Aryan Brotherhood indicated a propensity for future violence. In this case, therefore, the evidence was deemed irrelevant and thus inadmissible. But in reaching that holding, the Court reaffirmed the holding in Barclay that evidence of racial intolerance and subversive advocacy were admissible where such evidence was relevant to the issues involved in sentencing. Moreover, several federal civil rights crimes statutes explicitly make racial motivation an element of criminal liability.

            Finally, racial motivation is the sine qua non for a vast set of civil anti- discrimination laws governing discrimination in employment and housing among others. In most states, for example, unless an employment contract or collective bargaining agreement provides otherwise, an employer may fire an employee for any reason at all or for no reason whatsoever. Under Federal (and often State) civil rights laws, however, this same firing becomes illegal if it is motivated by the employee’s race or a number of other protected characteristics. Thus, the only way to determine whether such a firing is legal or not is to inquire at some level into the motivation of the employer. If bias crime laws unconstitutionally punish motivation as a matter of First Amendment doctrine, then this argument should apply with equal weight to those statutory schemes that authorize civil damage awards for otherwise permissible actions such as discharging an at-will employee. No one has seriously challenged civil anti- discrimination laws on this basis nor would any court uphold such a challenge. Bias crime laws do not raise a different issue in any relevant manner.

            The second flaw with the argument that motive may not be a basis for punishment is somewhat more abstract. The argument against the punishment of motive is necessarily premised on the assertion that motive can be distinguished from mens rea , that is, that motive can be distinguished from intent. Plainly, an actor’s intent is a permissible basis for punishment. Indeed, intent serves as the organizing mechanism of modern theories of criminal punishment. Specifically, intent concerns the mental state provided in the definition of an offense in order for assessing the actor’s culpability with respect to the elements of the offense. Motive, on the other hand, concerns the cause that drives the actor to commit the offense. On this formal level, motive and intent may be distinguished.

            The distinction between intent and motive does not hold the weight that some would place upon it because the decision as to what constitutes motive and what constitutes intent depends on what is being criminalized. Criminal statutes define the elements of the crime and a mental state applies to each element. The mental state that applies to an element of the crime we will call “intent” whereas any mental states that are extrinsic to the elements we will call “motivation.” The formal distinction, therefore, turns entirely on what are considered to be the elements of the crime. What is a matter of intent in one context may be a matter of motive in another. Consider the bias crime of a racially-motivated assault upon an African-American. There are two equally accurate descriptions of this crime, that is, two different ways in which a state might define the elements of this bias crime: one describes the bias as a matter of intent ; the other, as a separate matter of motive . The perpetrator of this crime could be seen as either:

(i) possessing a mens rea of purpose with respect to the assault along with a motivation of racial bias; or

(ii) possessing a first-tier mens rea of purpose with respect to the parallel crime of assault and a second-tier mens rea of purpose with respect to assaulting this victim because of his race.

            Either description accurately states that which a bias crime law could criminalize. The defendant in description (i) “intends” to assault his victim and does so because the defendant is a racist. The defendant in description (ii) “intends” to assault an African American and does so with both an intent to assault and a discriminatory or animus- driven intent as to the selection of the victim.

            Because both descriptions are accurate, the formal distinction between intent and motive fails. Whether bias crime laws punish motivation or intent is not inherent in those prohibitions. Rather the distinction simply mirrors the way in which we choose to describe them. In punishing bias-motivated violence, therefore, the Hate Crimes Prevention Act raises neither pragmatic nor doctrinal problems concerning a punishment of motivation. Properly understood, bias crime laws punish motivation no more than do criminal proscriptions generally.

II. SHOULD GENDER, SEXUAL ORIENTATION, GENDER IDENTITY AND DISABILITY BE INCLUDED IN A FEDERAL CRIMINAL CIVIL RIGHTS STATUTE?

A bias crime is a crime committed as an act of prejudice. Prejudice, in this context, is not strictly a personal predilection of the perpetrator. A prejudiced person usually exhibits antipathy towards members of a group based on false stereotypical views of that group. But in order for this to be the kind of prejudice of which we speak here, this antipathy must exist in a social context, that is, it must be an animus that is shared by others in the culture and that is a recognizable social pathology within the culture.

            Gender, sexual orientation, gender identity and disability ought to be included in a federal bias crime law as they are in the Hate Crimes Prevention Act. The violence involved in each case arises from a social context of animus. Opponents to including gender generally do not argue that women as a class are unsuitable for bias crime protection. Sex is generally an immutable characteristic, and no one seriously argues that women are not victimized as a result of their gender. Instead, opponents argue that crimes against women are not real bias crimes, that is, that they do not fit the bias crime model. The argument against including sexual orientation and gender identity instead looks to the qualities of the characteristic itself. Some opponents, either because they view sexual orientation and gender identity as a choice and not as an immutable characteristic, or because they are wary of giving special rights to gays and lesbians, argue that homosexuals do not deserve inclusion in bias crime statutes. Both sets of arguments, however, are ultimately flawed. Finally, including disability in a federal bias crime law would be an appropriate extension of the Congressional commitment to the rights of the disabled.

Should Gender be Included in Bias Crime Laws

Those who argue that gender should not be a bias crime category assert that gender-related crimes do not fit the standard bias crime model. The chief factor in bias crimes is that the victim is attacked because he possesses the group characteristic. From this chief factor, two things follow:

(i) victims are interchangeable, so long as they share the characteristic; and

(ii) victims generally have little or no pre-existing relationship with the perpetrator that might give rise to some motive for the crime other than bias toward the group.

            Those who oppose the inclusion of gender in bias crime laws argue, among other things, and that victims that victims of many gender-related crimes are not interchangeable, often have a prior relationship with their attackers. Because assailants are acquainted with their victims in many gender-related cases, the argument goes, the victims are not interchangeable and the crime does not fit into the bias crime category. Particularly in cases of acquaintance rape and domestic violence, the prior personal relationship between victim and assailant makes it difficult to prove that gender animus, and not some other component of the relationship, is the motivation for the crime.

            Gender-motivated violence, however, should be included in bias crime statutes. This is not to say that all crimes where the perpetrator is a man and the victim is a woman are bias crimes. But where the violence is motivated by gender, this is a classic bias crime. This is most obviously true in cases of stranger rape or random violence against women. The recent case of Charles Carl Roberts IV makes the point powerfully. On October 2, 2006, in Nickel Mines, Pennsylvania, Roberts finished his milk route, dropped his children off at school and drove to an Amish school. Roberts entered the school with gun in hand and calmly dismissed three women with infants and fifteen boys, barricading himself in with the ten remaining girls. Roberts then bound the girls together at the head of the classroom, called 911 and calmly told police to leave, and then shot each girl and then himself. The aftermath left five young girls and Roberts dead, with the other five girls injured. Before the assault, Roberts had left suicide notes and called his wife to let her know he was not coming home. He told his wife he had molested three and five-year old female relatives twenty years ago and was dreaming of molesting children again. Police said he may have targeted the school for its female students and may have intended to molest them.

            Robert’s crime plainly fits the model of classic bias crimes: his victims were shot solely because they were female and, from his point of view, could well have been a different group of individuals, so long as they were female. An attacker’s acquaintance with his victim would not make a race or religion-based crime any less a bias crime. Motive can be difficult to prove in a gender-related crime. Nonetheless, proof of discriminatory motive is difficult for any bias crime, and this has not and should not preclude the enactment of bias crime laws. Bias crimes should include only gender- motivated violence and not all crimes that happen to have female victims. But those crimes where gender-motivation can be proved clearly share all the characteristics of bias crimes, and should be punished as such.

            Inclusion of gender in the Hate Crimes Prevention Act will not, as some fear, lead to the federalization of all cases of rape, sexual assault, and domestic violence. As will be discussed below in Part IV of this Statement, the legislation is clearly designed such that federal law enforcement will come into play only in those cases in which there is a strong federal interest and an essential federal role to be played. As suggested by the strong support that this legislation has drawn from local law enforcement groups, there is no realistic concern that the Hate Crimes Prevention Act will lead to an excessive role of federal law enforcement in what are essentially state law matters.

Sexual Orientation and Gender Identity

It is difficult to make a strong argument that crime motivated by bias, on the basis of sexual orientation -- “gay bashing” -- does not fit the bias crime model. The factors that make some gender-related crimes so problematic, existence of a personal relationship or the lack of victim interchangeability, are not present in most crimes against homosexuals on the basis of their sexual orientation. Many crimes against homosexuals share all of the characteristics of bias crimes. If one of the purposes of bias crime statutes is to protect frequently victimized groups, sexual orientation is particularly worthy of inclusion. Some surveys indicate that over fifty percent of homosexuals in the United States have been the victims of attacks motivated by sexual orientation. A Department of Justice report noted that “homosexuals are probably the most frequent victims of hate crimes.” Several legislators who have supported the addition of sexual orientation to state and local bias crime laws did so at least partly in response to an increase, or at least an increase in reported bias-motivated crimes against homosexuals.

            The debate over the inclusion of sexual orientation in bias crime laws has turned primarily on a different factor: whether homosexuality as a category deserves bias crime protection. At times, this argument has been couched in terms of whether homosexuality is an immutable characteristic in the way that race, color, ethnicity, or national origin are.

            The argument for exclusion of sexual orientation from bias crime laws because of the non-immutability of homosexuality is weak for two sets of reasons. First, there is much evidence that sexual orientation is indeed immutable, whether for genetic reasons alone, or some combination of genetic and environmental reasons. Even if this evidence is not conclusive, there is certainly no scientific basis to conclude that sexual orientation is a matter of personal choice.

            Second, immutability turns out to be a multi-layered concept. Even if we were to assume that homosexuality is indeed chosen behavior, sexual orientation would be appropriate for a bias crime law. After all, this same argument could be made with respect to religion, one of the classic bias crime characteristics. The choice not to remain Jewish or Catholic is certainly more real than the choice not to remain Black. The reason that religion, along with race, color, ethnicity, and national origin, is protected by virtually all bias crime statutes, is that we deem it unreasonable to suggest that a Jew or Catholic might just choose to avoid discrimination by giving up her religion. Indeed, we deem it outrageous. Understood in this light, the question of immutability collapses into a basic value-driven question: are homosexuals somehow deserving of less protection than other groups? The Supreme Court has already answered this question in Romer v. Evans , In Romer , the Court struck down Colorado’s “Amendment 2,” a state constitutional amendment that prohibited any governmental action designed to protect the civil rights of homosexuals. An explicit denial of rights to gays and lesbians is irrational and thus unconstitutional.

            The inclusion of sexual orientation and gender identity in the Hate Crimes Prevention Act fills an important gap in federal bias crime law enforcement. First, although in 1994, Congress directed the United States Sentencing Commission to enhance penalties for federal crimes committed with bias, including sexual orientation, this provision is limited to those acts of violence that are already federal crimes. Thus its reach is quite limited, failing to cover, for example, assault and vandalism, the two most common forms of bias crimes. Second, 18 U.S.C. §245 does not cover bias crimes based on sexual orientation unless there is some independent basis for federal jurisdiction, such as racial bias. Finally, gender identity, although plausibly covered by the inclusion of gender and sexual orientation, is not clearly covered. Instances of bias motivated violence based on the actual or perceived gender identity of the victim represents another assault on the right to be different and to exist safely in a diverse society such as ours.

Disability

Congressional commitment to the rights of disabled Americans is best exemplified by the landmark Americans with Disabilities Act of 1990. This commitment has already been extended into the area of bias-motivated violence directed at the disabled by the inclusion of disability in the Hate Crimes Statistics Act in 1994 and the Violent Crime Control and Law Enforcement Act of 1994, However, disability-driven violence is not covered by 18 U.S.C §245 such that today federal law enforcement has authority neither to investigate nor prosecute, nor even help in the investigation or prosecution of such crimes. By including disability as a category, the Hate Crime Prevention Act at long last fills this significant gap in the law.

III. BIAS CRIME LAWS AND THE RIGHT TO FREE EXPRESSION

Bias crime laws have caused us to focus more on the relationship between First Amendment rights and civil rights than at any time since Nazis threatened to march in Skokie, Illinois in the late 1970s. To be sure there is a tension here. On the one hand, we have crimes that are worse exactly because of their bias motivation. On the other hand, we have a fundamental constitutional principle: the right to free expression of ideas, even if distasteful or hateful. The right to free expression, based in the First Amendment to the Constitution, lies at the heart of our legal culture.

            I believe that the purported conflict between the punishment of bias crimes and the protection of free expression is an apparent conflict because the so-called paradox of seeking to punish the perpetrators of bias motivated violence while being committed to protecting the bigot’s rights to express racism is a false paradox. We can in fact do both and the Hate Crime Prevention Act is consistent with the First Amendment precisely because it does do both.

Bias Crime Laws are Consonant with the First Amendment and Principles of Free Expression

Well over a decade ago, the Supreme Court in Wisconsin v. Mitchell held that bias crime laws are constitutional. The Hate Crime Prevention Act thus breaks no new ground where the First Amendment is concerned and, as will be discussed shortly, to the extent it does, it provides greater protection for the right of free expression that hate crime laws such as that upheld in the Mitchell case.

In Wisconsin v. Mitchell , the Supreme Court considered the Constitutionality of the Wisconsin bias crime statute. The statute provided for penalty enhancement for crimes of violence in which the defendant “intentionally selects the person against whom the crime [is committed] because of the race, religion, color, disability, sexual orientation, national origin or ancestry of that person.” The defendant in the case was Todd Mitchell , a nineteen-year old Black man, convicted of aggravated battery for his role in the severe beating of Gregory Riddick a fourteen-year old white male. Under Wisconsin law, this crime carries a maximum sentence of two years. Wisconsin’s penalty enhancement law, however, provided that the possible maximum penalty for a bias motivated aggravated battery is seven years. In addition to his conviction for battery, Mitchell was found to have acted out of racial bias in the selection of the victim. Facing a possible seven-year sentence, he was sentenced to four years incarceration.

The defendant challenged his sentence on the grounds that the bias crime statute amounted to punishment of his thoughts. The Supreme Court unanimously rejected this argument and upheld both the sentence and the statute, noting that “[t]raditionally, sentencing judges have considered a wide variety of factors in addition to evidence bearing on guilt in determining what sentence to impose on a convicted defendant,” The Court held that the statute was directed at a defendant’s conduct -- committing the crime of assault – and not his thoughts. The Court then held that, because the bias motivation would have to have a close nexus with a specific criminal act, there was little risk that the statute would chill protected bigoted speech. The statute focused not on the defendant’s bigoted ideas, but rather on his actions based upon those ideas. Finally, the Court made clear that “the First Amendment . . . does not prohibit the evidentiary use of speech to establish the elements of a crime or to prove motive or intent.”

            The Supreme Court considered and rejected a similar challenge to a law aimed at bias-motivated violence based on its alleged interference with free expression when it upheld a conviction under Virginia’s cross-burning statute in Virginia v. Black. The cross-burning statute provided in pertinent part as follows:

It shall be unlawful for any person or persons, with the intent of intimidating any person or group of persons, to burn, or cause to be burned, a cross on the property of another, a highway or other public place. Any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons.

Virginia v. Black arose out of two separate cases involving three defendants. Like textbook examples, the two cases represent the two poles of cross burnings – criminal domestic terrorism and constitutionally protected expression of White supremacy. Barry Black led a Ku Klux Klan rally on private property, at the conclusion of which a twenty- five to thirty-foot cross was burned. At his trial, the jury was instructed that they were required to find an “intent to intimidate” and that “the burning of a cross by itself is sufficient evidence from which you may infer the required intent.” The cross burning for which Richard Elliott and Jonathan O’Mara were prosecuted was quite different. They attempted to burn a cross on the lawn of an African-American, James Jubilee, who had recently moved next door, to “get back” at Jubilee. At the trial, the jury was instructed that they could infer the requisite intent for the crime of cross burning from the act of burning the cross itself. The judge went on to instruct the jury that the Commonwealth was required to prove, among other things, that “the defendant had the intent of intimidating any person or group of persons.”

            All three defendants appealed to the Supreme Court of Virginia. That court struck down the cross-burning statute, relying heavily on R.A.V. v. City of St. Paul , the 1992 case in which the Court struck down a cross-burning ordinance as a content-related proscription in violation of the First Amendment. The United States Supreme Court granted certiorari on two related issues: whether the cross-burning statute violated the First Amendment as interpreted in R.A.V. (the R.A.V. issue), and whether the statutory presumption that cross burning itself is “prima facie evidence” of the defendant’s intent to intimate was unconstitutionally overbroad (the overbreadth issue). In an opinion by Justice O’Connor, the majority of the Court upheld the statute on the R.A.V. issue. Although there was no majority opinion on the overbreadth issue, a majority of the Court was of the view that the statutory presumption was constitutionally invalid.

            A blueprint for a constitutional cross-burning statute emerges from a consideration of the Court’s treatment of the two issues. The R.A.V. issue concerned the holding in that case that the St. Paul cross-burning ordinance was an unconstitutional content-based prohibition, proscribing only that conduct that will cause “anger, alarm or resentment in others on the basis of race, color, creed, religion or gender” and not on any other basis. The Court in Black upheld the Virginia statute as a law aimed at all cross burnings that are intended to intimidate, regardless of the race or ethnicity of the victim. The overbreadth issue concerned the “prima facie evidence” clause of the cross-burning statute. Intimidation would have to be proved, not presumed, unless is an easily rebuttable presumption. The decision in Black thus represents a significant refinement to the holding in R.A.V. , and one that is ultimately supportive of a view that bias crime laws are consistent with concerns of free expression, both constitutional and philosophical.

            The balance between protecting speech and enforcing bias crimes may be illustrated by considering the specific facts at issue in Black . Wholly consistent with the values of free expression, Virginia might punish Richard Elliott and Jonathan O’Mara, and these same values preclude Virginia from punishing Barry Black. Moreover, Virginia could prosecute Elliott and O’Mara for a bias-motivated crime of cross burning. Virginia could punish Elliot and O’Mara not only for intending to terrorize Jubilee but also for doing so with a further intent (“motivation” if you like) to terrorize Jubilee because of his race and to cause fear and harm to other African-Americans. They would receive an enhanced punishment for committing a crime with a heightened level of intent, one that is intended to cause a great and more pervasive level of harm. . . .

CONCLUSION

The punishment of bias crimes by the Federal government will not end bigotry in our society. That great goal requires the work not only of the criminal justice system but of all aspects of civil life, public and private. Criminal punishment is indeed a crude tool and a blunt instrument. But our inability to solve the entire problem should not dissuade us from dealing with parts of the problem. If we are to be staunch defenders of the right to be the same or different in a diverse society such as ours, we cannot desist from this task.

Source: U.S. House of Representatives, Judiciary subcommittee hearing Local Law Enforcement Hate Crimes Prevention Act of 2007 (2007).