Texting, Suicide, and the Law

The case against punishing Michelle Carter

Mark Tunick

• Publisher: Routledge
• Year: 2019
• ISBN:
  9780429516122
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

In 2014, Conrad Roy committed suicide following encouragement from his long-distance girlfriend, Michelle Carter, in what has become known as the Texting Suicide case. The case has attracted much attention, largely focusing on the First Amendment free speech issue. This book takes the view that the issue is intertwined with several others, some of which have received less attention but help explain why the case is so captivating and important, issues concerning privacy, accountability, coercion, punishment, and assisted suicide. The focus here is on how all of these issues are interconnected. By breaking the issue down into its complex layers, the work aids reasoned judgment, ensuring we aren't guided solely by our gut reactions. The book is laid out as a case against punishing Ms. Carter, but it is less important that we agree with that conclusion than that we reach our conclusions not just through our instincts and intuitions but by thinking about these fundamental issues. The work will be of interest to scholars in law, political theory, and philosophy as an example of how theoretical issues apply to particular controversies. It will also appeal to readers interested in freedom of speech and the First Amendment, criminal justice and theories of punishment, suicide laws, and privacy.

1 Introduction

The issue: should Michelle Carter be punished?

Eighteen-year-old Conrad Roy had suicidal thoughts for some time. His long-distance girlfriend, Michelle Carter, had exchanged texts with him for close to two years, and in her texts up through June of 2014 she tried to lift his spirits and encouraged him to seek help. But Conrad remained profoundly unhappy, and she appears to have become frustrated that nothing she said helped to bring him out of his depression. In late June or early July 2014, Ms. Carter’s texts took a sharp turn. She began to encourage Conrad to end his life, even texting him advice on the most effective suicide methods. She complained that he kept putting it off and told him he just had to go through with it. It appears that on July 12, after Conrad turned on a water pump he rigged to release carbon monoxide gas into his truck, and sat inside, he got scared, stepped out, and spoke on the phone with Michelle. She told him to get back in the truck. Sometime after that conversation, Conrad died of carbon monoxide poisoning. After police learned that Michelle encouraged Conrad to kill himself, they arrested her. Prosecutors tried her for involuntary manslaughter, claiming her words caused Conrad’s death, and she was found guilty. My attention in this book is focused on the question, should Michelle Carter be punished?

In asking that question I really have three more specific questions in mind. First, does Ms. Carter deserve our criticism and scorn? In other words, should she receive moral punishment and a bad reputation for having acted badly?

Not all individuals who deserve to be morally reproached should be punished by the state. Whereas moral punishment is delivered by individuals on those who act badly, as defined by whoever is doing the judging, and without any procedures for the accused to defend themselves, or for ensuring the punishment is fair and just, legal punishment is meted out by the state only upon those accused of violating a law, after a determination of guilt that provides for due process and the opportunity for a trial. The second question we might mean in asking whether Ms. Carter should be punished, then, is: was she guilty of breaking a law and therefore deserving of legal punishment?

Even if a person is convicted for violating a law, we might think the state should not have enacted that law and that the conduct the law prohibits should not be a punishable offense; and so yet another question we might mean in asking whether Ms. Carter should be punished is whether there ought to be a law against what she did. I will address each of these questions. In asking whether Ms. Carter should be punished one might also mean, ought we to punish those who violate the law as opposed to responding in some other way? But even though there are some interesting criticisms of the very practice of legal punishment, I will assume that we should punish those who violate the law.

The Carter case has generated extraordinary public interest and garnered international attention, sparking divisive emotional responses ranging from anger at Ms. Carter to outrage at her conviction. When Ms. Carter was released pending her appeal, family members of Mr. Roy were furious. What kind of person would tell their close friend to get into a truck filling with poisonous gas? On the other hand, can words really kill? Even if we agree that Ms. Carter acted badly – though her texts indicate that she thought Conrad would be happier if he ended his life – is that sufficient reason to use the force of law to punish her? Punishing Ms. Carter would express the rage many people feel toward her for her apparent cruelty, and it may deter others from encouraging suicide. Yet if we punish people for what they say to their loved ones in private, won’t that undermine our right to speak freely without fear of reprisal, and hinder our ability to have meaningful personal relationships?

Much of the attention the case has drawn focuses on the First Amendment issue of whether we should punish someone for their words. The First Amendment prohibits government from “abridging the freedom of speech,” and putting someone in prison because she spoke or texted what was on her mind would seem to constitute such an abridgement; it would likely limit the speech of other people as well who would fear receiving similar treatment. The First Amendment protects speech, but there are recognized exceptions. For example, malicious libel or true threats, while speech, can be prohibited. Another recognized category of speech that can subject the speaker to punishment is speech integral to criminal conduct. In Giboney v. Empire Storage and Ice Company, a union of ice peddlers who purchased ice from Empire and other suppliers sought to pressure the suppliers to agree to sell only to union peddlers. Such an agreement would violate a state law prohibiting restraints of trade. Empire refused, and the union then promptly picketed the company, causing it to lose 85% of its business. While we might think that the First Amendment gives union members the right to try to persuade businesses to change their behavior, the U.S. Supreme Court determined that in this case the union was coercing Empire to commit a crime. The Court unanimously held that the union had no First Amendment right to engage in speech integral to criminal conduct: “It rarely has been suggested that the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute.”¹ Whether Michelle’s speech does or does not deserve First Amendment protection – an issue I will not focus on – may hinge on the issue I do focus on: whether Ms. Carter’s speech was integral to criminal conduct and deserving of punishment.

Many of the issues I will focus on have received less attention than the First Amendment issue, but help explain why the case is so captivating and important, issues concerning privacy, causation, coercion, punishment, and suicide laws: should the intimate exchanges between Michelle and Conrad have remained private, as they were intended to be? While privacy is valuable, it should not be a shield for wrongful conduct, but in encouraging Conrad to take his own life did Ms. Carter commit a crime? Did her words cause Conrad’s death, or was Conrad ultimately responsible by voluntarily getting back into his truck and poisoning himself? If Michelle believed that suicide would relieve Conrad of unbearable suffering, did she even act badly? Of course many people regard suicide as wrong, and judge Michelle harshly for encouraging this wrong: but should the fact that the majority judges an individual’s actions to be immoral or sinful mean that the individual should be legally punished? The case serves as a touchstone for addressing fundamental issues of political, moral, and legal theory with implications broader than whether Ms. Carter goes to prison.

When we first learn about the Carter case we may have an intuitive reaction. One New England resident compared Ms. Carter to Saddam Hussein: “I’m not a religious guy, but if there’s evil, that was evil.”² Others may feel that Michelle meant well, having seen Conrad suffer so much. Intuitive reactions are powerful. They can be helpful guides in making decisions; but they also can hinder our ability to make reasoned judgments.

Jonathan Haidt, a social psychologist, argues that we adopt our political or moral stances largely based on our intuition. By evolutionary design, on his view, we intrinsically judge others instinctually and only later do we offer post-hoc rationalizations. He uses the metaphor of the elephant and the rider. The elephant is moved by emotion, intuition, and “taste receptors,” while the rider, who emerged later in our evolutionary history, has higher cognitive functions including language and reason. Rather than the rider using these higher cognitive abilities to steer the elephant, Haidt argues, the rider serves the elephant. We reach decisions by relying on our pre-reflective intuitions – our elephant’s gut feelings – and our rider merely rationalizes these decisions after the fact. Haidt suggests that many conservatives have an instinctive affinity for what he calls an ethic of divinity – they believe that we must not do what degrades or dishonors God. Haidt might predict that they will judge Ms. Carter harshly for failing to respect the sanctity of life. Haidt suggests that some liberals, in contrast, have a taste or uncritical affinity for autonomy and individual rights; he might predict that they will instinctively defend Ms. Carter, so long as she did not coerce Conrad, and then defend this reaction with rationalizations such as that she is entitled to speak her mind and Conrad has the right to take his own life if he chooses. Haidt’s point is that we come to issues such as this guided by emotion and intuition rather than reason.³

By breaking down the issue of whether Ms. Carter should be punished into its complex layers, my hope is to aid in reasoned judgments, so we aren’t guided solely by our immediate intuitions. I will present the case against punishing Ms. Carter. But it is less important to me that we agree with that conclusion than that we reach our conclusions not just based on our instincts and intuitions but by thinking about these fundamental issues.

Both our intuitive reactions and our reasoned judgments will depend on the facts of the case. Whether we think Ms. Carter should be punished may depend on her motivations, on whether she would expect Conrad to heed her words, on how she intended them, and on our assessment of Conrad’s mental state and ability to make decisions for himself. It would surely depend on whether Conrad immediately got into his truck after Michelle told him to and died right then, or whether he shut off the water pump as he got back in his truck, drove around to think, and then killed himself. As with any reconstruction of a past event with few witnesses, the facts may be uncertain. Most of the news reports about the case have relied on some of the more sensational texts in which Ms. Carter urges Conrad to kill himself, but ignore the hundreds of earlier texts in which she begged him to get help and tried to make him feel more positive about himself. I will draw on all the texts that are publicly available, to minimiz...