photograph of defibrillator practice on a CPR dummy
"Defibrillator practice on a CPR" by plepraisaeng (via depositphotos)

On Wednesday, November 6th, an appeals court confirmed a lower court’s ruling that a death row inmate had not fulfilled his sentence when his heart stopped in a medical procedure in 2015. The inmate, Benjamin Schreiber, was convicted of murder in 1996 and sentenced to life without parole. Shreiber had argued that his sentence ended when his heart stopped during a medical emergency four years ago, even though he was later revived.

There are cases that blur the line between life and death, either because it is difficult to determine death or define it. In 2018, a woman in South Africa woke up in a morgue after mistakenly being declared dead. Paramedics at the scene found no heartbeat and detected no signs of life, but were later flummoxed when they spotted the patient breathing.

Cases like this are obviously uncommon, but they do happen. At least 38 times since 1982, patients have been recorded as experiencing “Lazarus Syndrome,” or autoresuscitation, after failed cardiopulmonary resuscitation. In such cases, medical intervention failed to restart a patient’s heart but nevertheless the patient’s heart restarted.

Definitions of medical death have changed with advances in possible medical interventions. Globally and historically, people have looked to circulation and breathing as standards for life and death. Schreiber’s standard here, therefore, the lack of a pulse, or circulation of blood throughout the body, is not without precedent. These standards became complicated the more we learned about the brain and its connection to our lives as individuals.

In 1968 the medical community came together to try to address definitions of death as organ transplants became more successful. Removing organs from patients who still had circulating and oxygenating blood increased the probability of successful transplant, but insured the death of the donor patient. According to our legal and moral standards of wrongful harm, there are reasons to only perform such procedures on patients formally pronounced dead. New understandings of the importance of brain functioning for identity and personhood provided useful distinctions to inform this pronouncement.

We know now that blood can continue to circulate without there being any hope of meaningful interaction with the world again on the patient’s part. Neuroscience, meanwhile, shows that certain brain function is necessary for personhood and when particular lacks of brain function occur, doctors can determine that death in the sense of loss of personhood has also occurred. Thus patients can be pronounced dead while their organs are still viable for transplant.

When deciding whether or not to harvest organs, the permanence or irreversibility of the state of the patient is a crucial consideration. As philosophers, we can wonder whether the finality of death is a crucial aspect of the concept for other applications, and potential applications in the future.

Using this ambiguity behind our evolving definition of “death,” Schrieber claimed to have served his time. He accepted his initial sentence of life without parole, but would not accept “life plus one day” (Schreiber claims to have been revived from septic shock against his wishes). The court found Schreiber’s claim original, but refused to side with him on the grounds that he was “unlikely” to be dead, having represented himself legally and signed his own documents.

While definitions of death today include some criterion of finality (such as the cessation of life or the permanent loss of a human’s personhood), the discussion in this case leaves open an interesting possibility: If Schreiber is present to represent his interests in court, then could he nevertheless have been dead, thus fulfilling his sentence? In other words, is a death penalty meant to shorten someone’s life or ensure they experience death?

If we can imagine a future where someone exists after a period of cessation of life that we currently understand as death under some medical criteria, then Schreiber’s case may be a relic of our stage in medical technology (just as pronouncements of life while brains lacked functioning were relics of previous centuries’ understandings of life and death). Say technology advances to the point where we can map the complicated and dynamic connections that make you who you are. If we have the ability to produce such an intelligent mapping, then your physical body could cease to live according to our current medical definitions, but there is the possibility that we could recreate a physical foundation for the map to run so as to support your conscious existence in the world once more.

If this possibility existed, there are two important questions related to Schreiber’s case. First, would we continue to use “death” in a sufficiently close enough way so as to say that if he experienced this process, he would qualify as “dead” at one time? If so, then the legal system could declare his sentence fulfilled if they understand it in a particular way (until death), or not if they understand it differently (for all of Schreiber’s life).

Second, if we had the technology described above, would the person brought into existence with the dynamic mapping of Schreiber be Schreiber? If the original person in the original body ceased to exist, then creating a supporting body for the dynamic mapping may bring in as exact a copy as possible, but this may not count as the original Schreiber. If this is the case, then it would be wrong to apply the legal punishment to the created Schreiber.

We can have a definition of death that does not include finality. With this caveat, Schreiber’s appeal becomes more compelling if the penalty applied to him is understood as “until death.” Regardless, the case brings out how we mean punishment to apply, and raises theoretical questions about how we may apply them in the future.

Meredith is an Assistant Professor at the University of Wisconsin, Whitewater. She earned her PhD at the University of California, Riverside, with a research focus in Philosophy of Action and Practical Reasoning and continues to explore the relationship between reason and value. Her current research consists of investigating modes of agential endorsement: how an agent's understanding of what is good, what is reasonable, what she desires, and who she is, informs what she does. Meredith is also committed to public philosophy and applied ethics; in particular, she is invested in illuminating debates in biomedical ethics, ethics of technology, and philosophy of law. Her website can be found at: https://mermcfadden.wixsite.com/philosopher.