It is said that hard cases make bad law. But bad law can be made by pretending that hard cases are not cases.
Consider the case of Hans Florian, who on March 18 shot to death the woman to whom he had been married for 33 years. His act was loving, brave, even noble. Nevertheless, it was not an act about which society should be indifferent or permissive, or about which the law should be agnostic. Yet a Florida grand jury refused to indict him.
Alzheimer's disease began destroying his wife's mind in the late 1970s. There is no known cause or cure for the disease. It causes the brain to shrivel and fill with bubbles and granules. Soon his wife could not drive or write, and would panic when he stepped away from her. He and his son by an earlier marriage cared for her, forcing her mouth open for food, and bathing her and changing her clothes five or six times a day as she soiled them.
For most of the past two years, whenever she was not heavily drugged she howled constantly, and screamed two words, "fire" and "pain," in her native German. Finally, she had to be put in a nursing home for her own safety. Hans Florian is 17 years older than she was, and he did not want to die leaving her alone.
This case did not involve any of the multiplying dilemmas occasioned by the sophistication of modern medicine, the mechanical and pharmacological technologies that can prolong a painful process of dying, without altering the prognosis. This was not the sort of case for which hospice care is most suited. Such care is designed for the predictable final period of a terminal disease, during which the patient can lead a life made tolerable by pain management. Alzheimer's disease can run on and on.
This was not a case where a person had sunk into a condition where, by some arguable definition, death could be said to have occurred. Mrs. Florian's mind was destroyed, but brain death had not happened.
Because Alzheimer's disease is terrifying, irreversible and protracted, Florian's case underscores this fact: there is no way entirely to exclude "quality of life" considerations from all controversies in biomedical ethics.
Many persons feel proper anxiety about casual, incoherent injections of "meaningful life" rhetoric in the 1973 Supreme Court abortion ruling, and in rationalizations for infanticide even against newborns with easily remediable physical defects. Therefore, many persons have tried to assert "sanctity of life" criteria that would enable all decision-making to proceed without consideration of the quality of life a subject can lead.
Quality-of-life assessments are fraught with difficulties and dangers. Current practices offer abundant examples of mistakes and abuses. However, when "heroic" medical measures are employed, or when there is a decision to intervene in a person's life to alter the course nature would take in "taking its course," this is true: you cannot judge the morality of what is done without reference to the quality of life that has been extended by heroic medicine or ended by extreme action.
However, the law cannot quite countenance such extreme measures as Florian's, even when, as in this case, the situation is extreme. Obviously Florian was in an unsettled frame of mind when carrying out his considered decision to shoot the woman he loved. But he did not try to diminish his responsibility for his action. And there was no ambiguity concerning competent consent: Florian obviously substituted his judgment for that of a person incapable of choosing.
It is, therefore, hard to see how the grand jury can have properly refused to indict. Surely there was probable cause for finding that a crime--homicide--had been committed. Grand juries require less to indict (a finding of probable cause to believe that a crime has been committed) than a trial jury requires to convict (proof of guilt beyond reasonable doubt).
The proper place for society to express compassionate understanding in cases such as Florian's is at the sentencing stage. There should be ample discretion at that stage to enable society to avoid the practice of not indicting when a homicide undoubtedly has occurred. Such a practice would express the dangerous doctrine that certain homicides are matters of indifference to society.
Some cases are hard because this is true: a homicide can be noble without properly being, in the eyes of the law, completely permissible.