Should Prisoners Have the Right to Assisted Suicide?

—Michèle Finck, University of Oxford

Recently, a Belgian inmate, convicted of murder and rape, received a lethal injection. Most Europeans would feel nothing short of a shock when reading these lines. After all, the death penalty has been abolished in most European States in the aftermath of WWII, and is now outlawed by Protocol No. 6 to the ECHR. Belgium did not however breach any of its international obligations – rather it gave way to the inmate’s request to be euthanized.

The Belgian case raises a number of interesting questions in the context of a wider debate about euthanasia, a practice that has been legalized in a number of jurisdictions in recent years. Further, a number of countries, such as Canada and the UK, are currently debating whether assisted suicide should be legal. No doubt, euthanasia is a live issue in many jurisdictions at this moment in time. An aspect that is rarely addressed in the context of such debates however is the status of prisoners. This question, delicate as it may be, forces an evaluation of the circumstances in which it is ethically permissible to end one’s life.

Belgium passed a law legalizing assisted suicide in 2003. The Belgian legislation explicitly allows for euthanasia under objective criteria such as ‘terminal illness’ but, and in contrast to many other jurisdictions, also on the basis of the individual’s own, subjective, experience of physical and mental suffering. This legal regime has recently come under fire when age restrictions were lifted, so that also minors can henceforth receive euthanasia. Contrary to adults, they must however be terminally ill to be eligible for assisted suicide. Also the recent case of an elderly Belgian couple, which sought to end their lives for fear of dying alone, brought about controversy. Belgian legislation does not specifically address the situation of inmates, giving rise to the presumption that their request for assisted suicide should be treated according to the same standards as those of other individuals.

Fifty-year-old Frank Van Den Bleeken was serving a life sentence in Belgium and had already served thirty years thereof when his request for assisted suicide was granted. Van Den Bleeken argued that he was living a life of unbearable psychological suffering being unable to overcome his violent sexual urges. He claimed “What am I supposed to do? What’s the point in sitting here until the end of time and rotting away? I’d rather be euthanised.”

When the medical board first examined Van Den Bleeken’s request to die, it asked that he seek psychological help. This however proved impossible as his request to be treated in a specialized psychiatric centre in the Netherlands was denied. No appropriate treatment options were available in Belgium.  His request to die was subsequently granted.  At least fifteen similar requests from other inmates were made in the subsequent months.  Amidst euthanasia debates in many jurisdictions, the fate of Van Den Bleeken raises an important aspect, namely whether inmates should have the same legal right to assisted suicide as any other individual. Two main lines of argument emerge in this regard. First, that prisoners are in a particularly vulnerable situation and for that reason should not have access to assisted suicide. Second, that they should not be deprived of this right – and that the right to assisted suicide might even be of particular importance for those living behind bars.

When commenting on the Van Den Bleeken case, the German newspaper Frankfurter Allgemeine Zeitung asked whether the prisoner ‘was allowed to’ or rather ‘had to’ die. This alludes to the possibility of inmates being more or less subtly pressured towards this option as an alternative to therapy, or life in prison. No doubt, euthanasia is easier and cheaper than the accommodation of prisoners such as Van Den Bleeken. Some have furthermore wondered whether euthanasia could be a rational choice for some prisoners, especially those serving life sentences, who, it may be argued, do not participate in life anymore anyways.  The rational choice argument is however a tricky one as there appears to be a presumption that inmates are incapable of rational choices when it comes to questions of life and death. This presumption is one of the reasons why objects allowing prisoners to take their lives, such as belts or sharp objects, are conventionally removed from them.  Arguments that prisoners should be kept from ending their life could be grounded in the idea that the duration of their suffering should be prolonged as punishment or that the victim or its family find solace in his or her continued suffering. These issues however warrant an altogether different discussion, and do not seem to currently represent the rationale of criminal justice systems such as Belgium’s.

Van Den Bleeken was serving a sentence with no perspective of early release.  John Stuart Mill said, when arguing in favor of capital punishment, that life imprisonment is like living in a tomb. The Australian euthanasia proponent Philip Nitschke argued more recently that ‘Imprisonment for life, with no hope of parole, is torture.’ According to the German Constitutional Court, life sentences violate human dignity.  Belgian legislation on euthanasia is different from that in many other jurisdictions as it allows not only for euthanasia in cases of terminal illness but also on other grounds, such as moral suffering. Nonetheless we must wonder whether for some prisoners, especially those serving life without parole (LWOP), the sentence itself presents analogies with terminal illness. Assisted suicide emerges as an option because, just as in cases of terminal illness, it doesn’t change the outcome of suffering and death but merely brings it about more quickly in the absence of any prospect of ‘continuing to live’. This, as such, of course raises troubling implications about LWOP sentences as such. We must indeed wonder whether, in a way, an individual’s life ends the moment she is sentences to life in prison.

Nonetheless, it is unclear what the legal basis of denying prisoners the rights to assisted suicide would be in those jurisdictions that allow for such procedures to take place. Maybe precisely in the context of LWOP sentences, withholding euthanasia to those that request it seems nothing short of punishment. Prisoners are, unlike most other individuals, unable to commit suicide for the sole reason of their incarceration. As such euthanasia may be the sole option they have, being deprived of the choice to end their lives that most individuals outside of prisons have. For most individuals the ability to take one’s life is a permanent, and often one of the last, remaining choices – dark as it may be. The capacity to make this choice is however taken away from prisoners. This argument is a convincing one; especially since the commissions in charge of evaluating demands for assisted suicide have the task of examining the individual’s ability to make an informed decision.

Suggested Citation: Michèle Finck, Should Prisoners Have The Right to Assisted Suicide?, Int’l J. Const. L. Blog, Nov. 21, 2014, available at: http://www.iconnectblog.com/2014/11/should-prisoners-have-the-right-to-assisted-suicide