MODEL PENAL CODE ANNOTATED

PEOPLE of the State of Michigan, Plaintiff-Appellant, Cross-Appellee,

v.
Jack KEVORKIAN, Defendant-Appellee, Cross-Appellant
Supreme Court of Michigan
447 Mich. 436 (1994)
 

 MEMORANDUM OPINION.

 [omitted]
 

 MICHAEL F. CAVANAGH, Chief Justice, and BRICKLEY and ROBERT P. GRIFFIN, Justices.

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I

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    People v. Kevorkian
    (Docket No. 99674)
    The "Oakland County Murder Case"

 Before the [assisted suicide] statute was enacted, defendant Kevorkian allegedly assisted in the deaths of Sherry Miller and Marjorie Wantz on October 23, 1991.  He was indicted by a citizens' grand jury on two counts of murder.  After a preliminary examination, the defendant was bound over for trial.  In the circuit court, the defendant moved to dismiss, and the circuit judge granted the motion, concluding that assisting in suicide does not fall within the crime of murder.  The prosecutor appealed.

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IV
A

 During 1991, several bills were introduced in the [p. 451] Legislature regarding the subject of assisting in suicide.  The bill that ultimately became 1992 P.A. 270 was introduced on March 7, 1991, as H.B. 4501.  As originally introduced, it would have created the Michigan Commission on Death and Dying that was to study "voluntary self-termination of life" and related subjects and report its recommendations to the Legislature. [n. 10]  It was referred to the Judiciary Committee, and there were public hearings in December 1991.  The committee reported a substitute bill to the House on November 12, 1992.

 On November 24, the House amended the substitute bill by adding a section that would make it a crime to assist another in committing suicide, and the bill passed the House on that date. [n. 12]  The Senate passed the bill on December 3, 1992, and it was signed by the Governor on December 15.  1992 P.A. 270.  It was to be effective March 31, 1993, ninety days after the legislative session, as provided by Const.1963, art. 4, § 27.  [p. 452] On January 26, 1993, S.B. 211 was introduced to amend § 7 of 1992 P.A. 270, which contained the criminal penalties. [n. 13]  It passed the Senate on February 11.  On February 25, the House approved a substitute, which, among other things, provided that the act, including both the commission and criminal provisions, would be effective on February 25, 1993.  The Senate concurred in the substitute, and the Governor signed the bill that same day.  1993 P.A. 3. [n. 14]  Each house had voted to give the act immediate effect, and thus the act was effective on February 25, 1993.  The enrolled bill [n. 15] sets forth [p. 453] the full text of each section of the act as required by Const.1963, art. 4, § 25.  Pursuant to the statute, the Commission on Death and Dying was constituted and prepared its final report to the Legislature.  
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VI
A

 Finally, we turn to the issue presented in the Oakland County case involving the deaths of Sherry Miller and Marjorie Wantz.  Their deaths occurred before the enactment of Michigan's ban on assisted suicide, and the question is whether defendant Kevorkian can be prosecuted for his role in the deaths.

 Each woman was said to be suffering from a condition that caused her great pain or was severely disabling.  Each separately had sought defendant Kevorkian's assistance in ending her life.  The women and several friends and relatives met [p. 483] the defendant at a cabin in Oakland County on October 23, 1991.

 According to the testimony presented at the defendant's preliminary examination, the plan was to use his "suicide machine."  The device consisted of a board to which one's arm is strapped to prevent movement, a needle to be inserted into a blood vessel and attached to IV tubing, and containers of various chemicals that are to be released through the needle into the bloodstream.  Strings are tied to two of the fingers of the person who intends to die.  The strings are attached to clips on the IV tubing that control the flow of the chemicals.  As explained by one witness, the person raises that hand, releasing a drug called methohexital, which was described by expert witnesses as a fast-acting barbiturate that is used under controlled circumstances to administer anesthesia rapidly. [n. 61]  When the person falls asleep, the hand drops, pulling the other string, which releases another clip and allows potassium chloride to flow into the body in concentrations sufficient to cause death.

 The defendant tried several times, without success, to insert the suicide-machine needle into Ms. Miller's arm and hand.  He then left the cabin, returning several hours later with a cylinder of carbon monoxide gas and a mask apparatus.  He attached a screw driver to the cylinder, and showed Ms. Miller how to use the tool as a lever to open the gas valve.

 The defendant then turned his attention to Ms. Wantz.  He was successful in inserting the suicide-machine needle into her arm.  The defendant explained to Ms. Wantz how to activate the device so [p. 484] as to allow the drugs to enter her bloodstream.  The device was activated, [n. 62] and Ms. Wantz died. [n. 63]

 The defendant was indicted on two counts of open murder.  He was bound over for trial following a preliminary examination.  However, in circuit court, the defendant moved to quash the information and dismiss the charges, and the court granted the motion.
B

 A divided Court of Appeals reversed.  People v. [p. 485] Kevorkian No. 1, 205 Mich.App. 180, 517 N.W.2d 293 (1994).  The Court of Appeals majority relied principally on People v. Roberts, 211 Mich. 187, 178 N.W. 690 (1920).

 In Roberts, the defendant's wife was suffering from advanced multiple sclerosis and in great pain.  She previously had attempted suicide and, according to the defendant's statements at the plea proceeding, requested that he provide her with poison.  He agreed, and placed a glass of poison within her reach.  She drank the mixture and died.  The defendant was charged with murder.  He pleaded guilty, and the trial court determined the crime to be murder in the first degree.

 The defendant appealed.  He argued, among other things, that because suicide is not a crime in Michigan, and his wife thus committed no offense, he committed none in acting as an accessory before the fact.  The Court rejected that argument, explaining:

If we were living in a purely common-law atmosphere with a strictly common-law practice, and defendant were charged with being guilty as an accessory of the offense of suicide, counsel's argument would be more persuasive than it is.  But defendant is not charged with that offense.  He is charged with murder and the theory of the people was that he committed the crime by means of poison.  He has come into court and confessed that he mixed poison with water and placed it within her reach, but at her request.  The important question, therefore, arises as to whether what defendant did constitutes murder by means of poison.  [211 Mich. at 195, 178 N.W. 690.]

 After discussing a similar Ohio case, Blackburn v. State, 23 Ohio. St. 146  (1872), the Roberts Court concluded:

[p. 486] We are of the opinion that when defendant mixed the paris green with water and placed it within reach of his wife to enable her to put an end to her suffering by putting an end to her life, he was guilty of murder by means of poison within the meaning of the statute, even though she requested him to do so.  By this act he deliberately placed within her reach the means of taking her own life, which she could have obtained in no other way by reason of her helpless condition.  [211 Mich. at 198, 178 N.W. 690.]

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C

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. . . .  We must determine further whether Roberts remains viable, because, as noted in People v. Stevenson, 416 Mich. 383, 390, 331 N.W.2d 143 (1982):

This Court has often recognized its authority, and indeed its duty, to change the common law when change is required.

 The crime of murder has been classified and categorized by the Legislature, see M.C.L. § 750.316;  M.S.A. § 28.548 and M.C.L. § 750.317;  M.S.A. § 28.549, but the definition of murder has been left to the common law. People v. Aaron, 409 Mich. 672, 299 N.W.2d 304 (1980);  People v. Scott, 6 Mich. 287 (1859).  Unless abrogated by the constitution, the Legislature, or this Court, the common law applies.  [p. 488] Const.1963, art. 3, § 7; Aaron, supra at 722-723, 299 N.W.2d 304.

 Under the common-law definition, [m]urder is where a person of sound memory and discretion unlawfully kills any reasonable creature in being, in peace of the state, with malice prepense or aforethought, either express or implied.   Aaron, supra at 713, 299 N.W.2d 304, quoting People v. Potter, 5 Mich. 1 (1858).  Implicit in this definition is a finding that the defendant performed an act that caused the death of another.  To convict a defendant of criminal homicide, it must be proven that death occurred as a direct and natural result of the defendant's act.  People v. Barnes, 182 Mich. 179, 196, 148 N.W. 400 (1914).  See also People v. Flenon, 42 Mich.App. 457, 460, 202 N.W.2d 471 (1972) ("a defendant's [first-degree murder] conviction should only be sustained where there is a reasonable and direct causal connection between the injury and death").

 Early decisions indicate that a murder conviction may be based on merely providing the means by which another commits suicide.  However, few jurisdictions, if any, have retained the early common-law view that assisting in a suicide is murder.  The modern statutory scheme in the majority of states treats assisted suicide as a separate crime, with penalties less onerous than those for murder.  See, e.g., 1993 P.A. 3, which was enacted by our own Legislature. [n. 68]

 [p. 489] Recent decisions draw a distinction between active participation in a suicide and involvement in the events leading up to the suicide, such as providing the means.  Frequently, these cases arise in the context of a claim by the defendant that the prosecution should have been brought under an assisted suicide statute.  The courts generally have held that a person may be prosecuted for murder if the person's acts went beyond the conduct that the assisted suicide statute was intended to cover.

 For example, in People v. Cleaves, 229 Cal.App.3d 367, 280 Cal.Rptr. 146 (1991), the defendant was charged with first-degree murder in the strangulation death of another man.  The trial court had refused a defense request to instruct the jury on the statutory offense of aiding and abetting a suicide, and the jury convicted him of second-degree murder.

 In deciding whether an instruction on the statutory [p. 490] offense of aiding and abetting suicide should have been given, the appellate court accepted the defendant's detailed version of the events.  The decedent in Cleaves was suffering from AIDS and wanted the defendant's assistance in strangling himself.  With the defendant's help, the decedent trussed his body in an arched position, with his face down on a pillow.  The defendant's role, when the decedent "pulled down" on the truss to effect strangulation, was to put his hand on the decedent's back to steady him.  At one point, when the sash slipped from the decedent's neck, the defendant rewrapped it at the decedent's request and retied it to the decedent's hands.  By straightening out his body with his feet, the decedent was in sole control of how tight the sash was around his neck.  In holding that the trial judge properly refused to instruct the jury under the assisted suicide statute, the appeals court said:

[The statute] provides:  "Every person who deliberately aids, or advises, or encourages another to commit suicide, is guilty of a felony."  As explained by our Supreme Court, the "key to distinguishing between the crimes of murder and of assisting suicide is the active or passive role of the defendant in the suicide.  If the defendant merely furnishes the means, he is guilty of aiding a suicide;  if he actively participates in the death of the suicide victim, he is guilty of murder."  [In re Joseph G, 34 Cal.3d 429, 436;  194 Cal.Rptr. 163, 667 P.2d 1176, 40 A.L.R.4th 690 (1983) ].  The statute providing for a crime less than murder " 'does not contemplate active participation by one in the overt act directly causing death.  It contemplates some participation in the events leading up to the commission of the final overt act, such as furnishing the means for bringing about death, the gun, the knife, the poison, or providing the water, for the use of the person who himself commits the act of self-murder.  But where a person actually performs,[p. 491] or actively assists in performing, the overt act resulting in death, such as shooting or stabbing the victim, administering the poison, or holding one under water until death takes place by drowning, his act constitutes murder, and it is wholly immaterial whether this act is committed pursuant to an agreement with the victim....' "  [People v. Matlock, 51 Cal.2d 682, 694, 336 P.2d 505, 71 A.L.R.2d 605 (1959) ].  [229 Cal.App.3d at 375, 280 Cal.Rptr. 146.]

 In Cleaves, viewing the evidence most favorably for the defense, the court said there were no facts to support the requested instruction on aiding and abetting an assisted suicide.  Although the defendant may not have applied pressure to the ligature itself, he admitted that his act of holding the decedent to keep him from falling off the bed was designed to assist the decedent in completing an act of strangulation.  "This factual scenario indisputably shows active assistance in the overt act of strangulation," the court said.  Id. at 376, 280 Cal.Rptr. 146.

 Similarly, in State v. Sexson, 117 N.M. 113, 869 P.2d 301 (N.M.App., 1994), cert. den., 117 N.M. 215, 870 P.2d 753 (1994), the defendant was charged with first-degree murder in connection with the fatal shooting of his wife.  He was convicted of second-degree murder following a bench trial, and argued on appeal that he should have been prosecuted under the state's assisted suicide statute.

 The only fact in dispute in Sexson was whether it was the defendant or the decedent who actually pulled the trigger of the rifle that killed her.  It was not disputed that there was a suicide agreement between the two, and that the pact was genuine.  The defendant claimed simply to have held the rifle in position while the decedent pulled the trigger, and that he had failed to then kill himself because he "freaked out" when the decedent continued to breathe after being shot.

 [p. 492] The appellate court rejected the defendant's argument that he could not be prosecuted under the more general murder statute because of the specific assisted suicide statute.  In so doing, the court emphasized that the two statutes proscribed different conduct:

The wrongful act triggering criminal liability for the offense of assisting suicide is "aiding another" in the taking of his or her own life.  It is well accepted that "aiding," in the context of determining whether one is criminally liable for their involvement in the suicide of another, is intended to mean providing the means to commit suicide, not actively performing the act which results in death....
There are three different views about the criminal liability of one who, whether pursuant to a suicide pact or not, solicits (by talk) or aids (as by providing the means of self-destruction) another to commit suicide. Occasionally aiding or soliciting suicide has been held to be no crime at all on the ground that suicide is not criminal.  That view is most certainly unsound.  At one time many jurisdictions held it to be murder, but a great many states now deal specifically with causing or aiding suicide by statute, treating it either as a form of manslaughter or as a separate crime.  Such statutes typically do "not contemplate active participation by one in the overt act directly causing death," and thus their existence is not barrier to a murder conviction in such circumstances.
In contrast, the wrongful act triggering criminal liability for second degree murder is "kill[ing]" or "caus[ing] the death" of another.  In the context of the instant case, the second degree murder statute is aimed at preventing an individual from actively causing the death of someone contemplating suicide, whereas the assisting suicide statute is aimed at preventing an individual from providing someone contemplating suicide with the means to commit suicide.  Thus, the two statutes do not condemn [p. 493] the same offense....  [117 N.M. at 116, 869 P.2d at 304 (citations omitted).]

 Turning to the evidence presented in Sexson, the court reiterated that the distinction accepted in other jurisdictions between murder and aiding suicide "generally hinges upon whether the defendant actively participates in the overt act directly causing death, or whether he merely provides the means of committing suicide."  869 P.2d at 304-305.  This distinction applies even where the decedent has given consent or requested that actual assistance be provided.  In Sexson, the defendant admitted holding the rifle in a position calculated to assure the decedent's death.  The court concluded:  "That action transcends merely providing Victim a means to kill herself and becomes active participation in the death of another."  869 P.2d at 305.

 In the years since 1920, when Roberts was decided, interpretation of causation in criminal cases has evolved in Michigan to require a closer nexus between an act and a death than was required in Roberts.  See, e.g., People v. Flenon, supra;  People v. Scott, 29 Mich.App. 549, 558, 185 N.W.2d 576 (1971).  The United States Supreme Court also has addressed the importance of relating culpability to criminal liability.  See Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987);  Mullaney v. Wilbur, 421 U.S. 684, 697-698, 95 S.Ct. 1881, 1888-1889, 44 L.Ed.2d 508 (1975).

 In the context of participation in a suicide, the distinction recognized in  In re Joseph G, supra at 436, 194 Cal.Rptr. 163, 667 P.2d 1176, constitutes the view most consistent with the overwhelming trend of modern authority. There, the California Supreme Court explained that a conviction of murder is proper if a defendant participates in the final overt act that causes death, such as firing a gun or pushing the plunger [p. 494] on a hypodermic needle. However, where a defendant is involved merely "in the events leading up to the commission of the final overt act, such as furnishing the means ...," a conviction of assisted suicide is proper.  Id.

 As noted, this Court has modified the common law when it perceives a need to tailor culpability to fit the crime more precisely than is achieved through application of existing interpretations of the common law.  See, e.g., Stevenson, supra;  Aaron, supra.  For the reasons given, we perceive such a need here.  Accordingly, we would overrule Roberts to the extent that it can be read to support the view that the common-law definition of murder encompasses the act of intentionally providing the means by which a person commits suicide. [n. 69]  Only where there is probable cause to believe that death was the direct and natural result of a defendant's act can the defendant be properly bound over on a charge of murder. [n. 70]  [p. 495] Where a defendant merely is involved in the events leading up to the death, such as providing the means, the proper charge is assisting in a suicide.

 However, even absent a statute that specifically proscribes assisted suicide, prosecution and punishment for assisting in a suicide would not be precluded. Rather, such conduct may be prosecuted as a separate common-law offense under the saving clause of M.C.L. § 750.505;  M.S.A. § 28.773:

Any person who shall commit any indictable offense at the common law, for the punishment of which no provision is expressly made by any statute of this state, shall be guilty of a felony, punishable by imprisonment in the state prison not more than 5 years or by a fine of not more than $10,000.00, or both in the discretion of the court.[ [n. 72]]

 [p. 496] Our reinterpretation of the common law does not enlarge the scope of criminal liability for assisted suicide, but rather reduces liability where a defendant merely is involved in the events leading up to the suicide, such as providing the means.  Therefore, there is no violation of the prohibition on ex post facto laws.  U.S. Const., art. I, § 9;  Const.1963, art. 1, § 10. See Stevenson, supra at 399-400, 331 N.W.2d 143.
D

 The decision regarding whether an examining magistrate erred in binding a defendant over for trial is one that should be made in the first instance by the trial court.  In this case, the lower courts did not have the benefit of the analysis set forth in this opinion for evaluating the degree of participation by defendant Kevorkian in the events leading to the deaths of Ms. Wantz and Ms. Miller.  Accordingly, we remand this matter to the circuit court for reconsideration of the defendant's motion to quash in light of the principles discussed in this opinion.

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 MICHAEL F. CAVANAGH, BRICKLEY and ROBERT P. GRIFFIN, JJ., concur.
 

 BOYLE, Justice (concurring in part and dissenting in part).

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 I do not agree with the lead opinion's redefinition of the statutory offense of murder to exclude participation in the events leading up to the death, including, without limitation, providing the means and all other acts save that of the final act precipitating death.  A person who participates in the death of another may be charged with murder, irrespective of the consent of the deceased.  Nor do I agree with the lead opinion's conclusion or rationale justifying a charge of assisted suicide under the saving clause.  The saving clause recognizes only unprovided-for common-law crimes;  it does not authorize this Court to create new crimes.  If assisting a suicide is a common-law crime and not murder under the common-law definition incorporated in our murder statutes, it may be penalized as another crime under the saving clause. The Court, however, cannot simply exclude from the common-law definition of murder that which is murder under our statutes and then hold that the Legislature intended in the saving clause to authorize the Court to say that that which was murder at the common law is now a new crime.

 Finally, I disagree with the conclusion that one who provides the means for suicides and participates in the acts leading up to death may not be charged with murder as long as the final act is that of the decedent.  In stating this conclusion, the lead opinion has parsed the definition of participation to permit involvement that is dangerously [p. 499] overinclusive.  Absent standards established to distinguish between those who are in fact terminally ill or suffering in agony and rationally wish to die and those who are not, there is no principled vehicle in the judicial arsenal to protect against abuse, save the jury's evaluation of a given defendant's conduct.  The acts shown in the Oakland County case establish causation as a matter of law for purposes of bindover.  Thus, the trial court erred in quashing the information, and the decision of the Court of Appeals should be affirmed.

I

 Criminal homicide has been a statutory offense in Michigan since 1846.  The crime is not defined by reference to its elements but by reference to the common law.  People v. Schmitt, 275 Mich. 575, 577, 267 N.W. 741 (1936). There is no dispute that at the time these offenses were committed, the Legislature had shown no disposition to depart from the common-law definition of murder as including assisted suicide.  The lead opinion today would alter the definition of murder by changing the causation requirement in the context of suicide to exclude from liability for criminal homicide those who intentionally participate in the events that directly cause death with the intention that death occur.

 However, the intended results of the plaintiff's acts were the results actually obtained, and the acts were both the cause in fact and the proximate or foreseeable cause of the decedents' deaths.  The lead opinion would thus redefine murder as it is defined in our statutes and has created a special causation standard, unknown in any other jurisdiction.

 The detailed account of the preliminary examination [p. 500] testimony describing the assisted suicides of Ms. Miller and Ms. Wantz, Op. at 733-734, belies the notion that the degree of participation by the defendant in these events was insufficient to permit a charge of murder even in those states that have adopted separate penalties for soliciting or assisting suicide.  Testimony at the preliminary examination presented evidence that the defendant, inter alia, inserted IV needles into Ms. Wantz' arm, tied strings to her fingers so she could release chemicals into her bloodstream, and placed a mask over Ms. Miller's face so that she could breathe carbon monoxide gas.  Id. at 733- 734.  The mask was secured so tightly that without intervention that fact alone would have caused death.  It cannot be said, as a matter of law, that these actions did not establish probable cause to believe that the defendant committed murder.

 The decedents' alleged desire in the present case that they die with the defendant's assistance does not absolve the defendant of criminal liability. People v. Potter, 5 Mich. 1, 5 (1858).  The request by the decedents does not provide justification or excuse.  E.g., State v. Cobb, 229 Kan. 522, 625 P.2d 1133 (1981);  State v. Fuller, 203 Neb. 233, 278 N.W.2d 756 (1979); anno.:  Criminal liability for death of another as result of accused's attempt to kill self or assist another's suicide, 40 A.L.R. 4th 702, § 5, pp. 709-710.  The magistrate's decision to bind over the defendant for trial should be upheld.

II

 The lead opinion invites the circuit court on remand to draw a distinction between acts of participation that are merely "the events leading up to" the deaths of the decedents and "the final overt act that causes death" that, as a matter of law, will constitute probable cause for the charge [p. 501] of murder.  Such a "test" transfers the responsibility for the outcome from the shoulders of this Court to the trial court and effectively converts every criminal homicide accomplished by participation into assisting suicide.

 It could be argued that this solution does no more than what the assisted suicide law does.  But the assisted suicide law is still only a temporary measure, and the Legislature has never indicated that it would not follow the model of other states and continue to apply the law of criminal homicide despite the existence of statutes specifically directed to suicide.

 The lead opinion's "solution" is in fact an invitation to continue participation until the level of participation assumes a level of proof for bindover suggesting that the defendant intended to kill a decedent for impure reasons.  In pragmatic terms, the force of the law is to discourage conduct on the margins.  What the lead opinion would do in setting new margins is permit a new range of activity and thus increase the potential for abuse of the vulnerable by the active participant.

 As the Canadian Supreme Court recently and aptly observed in upholding a blanket prohibition against assisted suicide:

The basis for this refusal is twofold it seems--first, the active participation by one individual in the death of another is intrinsically morally and legally wrong, and secondly, there is no certainty that abuses can be prevented by anything less than a complete prohibition.  [Rodriguez v. British Columbia, 107 DLR 4th 342;  1993 LEXIS/Canada 51 (1993).]

A

 People v. Roberts, 211 Mich. 187, 178 N.W. 690 [p. 502] 1920), correctly held that the homicide statute had incorporated the common-law definition of assisted suicide as murder.  The question presented is whether we have the authority to modify that definition and, granting that we have the power to do so, whether we should.  People v. Couch, 436 Mich. 414, 461 N.W.2d 683 (1990).  The latter question involves the issue whether the judiciary can devise an acceptable formula advancing the autonomy of those who deem their lives not worthy to be lived, without jeopardizing the lives of those whose further existence society might deem not worthy of protection.  That the Court is unable to do so is illustrated by today's decision that alters the law of causation in all suicide settings, not just those of the terminally ill or acutely suffering.

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 The fact that an active participant in the death of another risks jury determination that the circumstances are not so compelling as to benefit from their mercy-dispensing power tests the situation and the actions by the only repository of authority within the judicial reach.  Whether death has been caused for good, bad, or mixed reasons, or whether the person is in fact presently incurable or suffering intolerable and unmanageable pain, and has a fixed and rational desire to die, are issues that should be addressed by a jury or the Legislature, not by this Court as a matter of law.

 Today the Court purports to approve only a mild deviation from the common law by moving the [p. 503] line of protection the murder statute affords from participation to pulling the trigger.  But the law that condemns such killings as murder has a substantially greater deterrent effect, imposing a substantially greater responsibility on those who would violate it than the penalty for assisted suicide.

 While the Court's redefinition of causation is presumably correctable, the lead opinion would reduce the deterrent potential without any assurance that the line it draws will not marginally increase the risk of death for those who would have a reason to live had society and the participant in their demise valued their continued existence.

 The lead opinion recognizes that the state's interest in guarding against potential abuses does not require it to stand neutral.  The state's interest in protecting the lives of those who wish to live under any circumstances also justifies the most severe sanction for those who would cause such deaths.  The lead opinion nonetheless sends the message that it assesses the quality of particular human life and judges as a matter of law that it is less culpable to destroy some lives than others.  In a society that draws a line that dictates that it is better that many go free than that one innocent person should be convicted, something approaching the principles protecting against error that are extended to the criminally accused should be extended to the victims of those who are willing to participate in suicide and to cause death, as long as they do not pull the final trigger.  Kamisar, Some non-religious views against proposed "mercy-killing" legislation, 42 Minn.L.R. 969, 1041 (1958).

 [p. 504] The lead opinion's distrust of the jury and its dislike for the severity of the punishment imposed by the law of criminal homicide has caused it to draw a line that crosses a dangerous threshold.  The risk of irreversible mistake, however "minimal," should not be borne by those no longer able to protest--it should rest on those who assume the authority and wisdom to extinguish human life.

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C

 The Model Penal Code recognizes the inherent difficulty of objective management of an assisted suicide law to separate proper from improper motivations of a participant.  The code classifies purposely [p. 505] causing, that is, engaging in conduct "but for which the result in question would not have occurred," Model Penal Code, § 210.5, comment 4, p. 98, suicide by force, duress, or deception as criminal homicide.  Aiding or assisting another to commit suicide is a felony at the level of manslaughter if the defendant's conduct causes, that is, was a "significantly contributing factor" to a suicide or attempted suicide.  Id., comment 5, p. 103.  The same distinctions are drawn in statutory schemes.  States that have enacted assisted suicide statutes continue to permit prosecutions for criminal homicides out of recognition that underinclusive line drawing by the judiciary may, as here, permit dangerously overinclusive activity.

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[p. 508] III

 Finally, the lead opinion finds that one who has only participated in a suicide but has not done the final act causing death may be prosecuted under the saving clause.  M.C.L. § 750.505;  M.S.A. § 28.773.  The statute is applicable only when two conditions obtain:  the conduct is not otherwise punishable by statute and the conduct was indictable at common law.  However, at common law, one who does the deed, even through an innocent agent, is a principle in the first degree.  Perkins & Boyce, Criminal Law (3d ed.), p. 737.  If suicide is not criminal, the lead opinion has attempted by judicial fiat to create a new crime of assisting suicide.  Culpability for persons assisting in suicide at common law was based on participation as parties to the crime of suicide. The saving clause furnishes no basis for the Court's creation of a new crime.  The usurpation of legislative authority in the lead opinion's approach is evident if one considers the reach of its rationale.  The lead opinion suggests an ability to exclude certain factual settings from the reach of the homicide statutes and then, as it were, find legislative authorization of a free-standing authority to recognize newly evolving crimes punishable under the saving clause.  If such conduct were permissible, the Court could simply reorder the punishment for any felony by concluding that conduct falls outside a given statute but within the saving clause.  Contrary to the lead opinion's conclusion, the saving clause is not a delegation of legislative authority to this Court to create new crimes.  The Legislature intended to save only what had not otherwise been covered in 1846.
 

    [p. 509] Conclusion

 The lead opinion would hold that where one "only" plans and participates in a death the actor can claim was "suicide," he may not be charged as a matter of law with criminal homicide.  No jurisdiction in the history of this country has so held and for obvious reasons.  We have no way of assuring that redefining the line that constitutes causation will distinguish between terminally ill or desperately suffering people and those who think they are, no way of deciding in advance that the act of suicide is that of a rational person who chose death with dignity or that of a severely depressed person who would not have chosen death had help been available.  Most significantly, the lead opinion's unwillingness to allow a jury to dispense mercy by determining the degree of culpability for a result clearly intended and caused in fact by a defendant is a sea change in the fundamental value we have assigned to the preservation of human life as one of the last great faiths that unites us.

 The question whether the definition of murder should be changed so as to exclude one who participates in all events leading up to the death, save for the final act, is a matter of compelling public interest, demanding a balancing of legitimate interests that this Court is institutionally unsuited to perform.  Although the Legislature passed a temporary assisted suicide law that included participation, it has not indicated that it intends to redefine murder, and every jurisdiction that has adopted a specific law covering assisted suicide has permitted prosecution for murder where the participation goes "too far."  No issue is more deserving of continued legislative debate and public study regarding whether, when, and how persons [p. 510] can maximize personal autonomy without running the risk of creating a societal quicksand for irreversible error.

 The decision to stay our hand in this matter is not simply a matter of adhering to the rule of law. It reflects the wisdom in recognizing that if we choose not to intervene, we have left the pressure for change in this rapidly developing and exceedingly complex field in the forum where it is best addressed.  To choose to intervene is to remove the pressure to decide that assisting suicide can be found by a jury to be murder, and to add the Court's imprimatur to the voices of those who argue for an expansive right to self- determination that would decriminalize assisted suicide.

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 [p. 511] The profound questions that must be debated and the regulatory decisions that must be made are uniquely suited for legislative resolution. There is no principled method by which the Court can amend the common-law definition of murder, included in the statutes of this state.  People v. Utter, 217 Mich. 74, 86, 185 N.W. 830 (1921).

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 RILEY, J., concurs.
 

 LEVIN, Justice (concurring in part and dissenting in part).

[omitted]

 MALLETT, J., concurs.
 

 MALLETT, Justice (concurring in part and dissenting in part).

[omitted]

 LEVIN, J., concurs.