“The danger of living too many times: you forget to fear death. We dismiss the Grim Reaper as a quaint metaphor. But fearing death is good for you.”

From the beginning of mankind through the twenty-first century, murder has been a pretty straight forward criminal charge. One person harmed another, and that person died as a result of the harm. But now, things are different. “Medical technology, however, has outstripped these simplistic axioms and rendered [our original notions about murder] obsolete [because] [a]rtificial life support systems have enabled the medical profession to prolong human ‘life,’ as defined by archaic common law standards, almost indefinitely.”  Captain Stephen J. Kaczynski, “We Find the Accused (Guilty) (Not Guilty) of Homicide”: Toward A New Definition of Death, Army Law., June 1982, at 1, 2.

Sci-fi technology takes this conundrum even further, enabling a person’s body to be “killed” but allowing his or her consciousness to live on in a digital realm. In Netflix’s Altered Carbon, everyone’s consciousness is transferred to a “stack,” which can be inserted or removed from a physical body—called a “sleeve.” We also recently found out that the android-filled “park” in HBO’s Westworld actually collects data on its guests, permitting full digital copies of a guest’s consciousness to be uploaded into an android host. Many Black Mirror episodes likewise include this tech, whereby one’s consciousness can be uploaded into a “cookie” and made to perform tasks. Outside of destroying someone’s stack or cookie—called a “real death” in Altered Carbon—killing someone’s physical body does not actually render them dead.

The legal question then, it seems, is how would we classify (or criminally charge) a person that “murders” the replaceable body of another whose consciousness keeps on living and can be transferred to a new body? For our purposes, I’ll call this a “sleeve death” as opposed to a “real death” a lá Altered Carbon. Using the Model Penal Code (“MPC”) and analogous modern case law, I think that question would have to be answered by a few slight changes in the law.

Under the MPC, which is not law but can and has been adopted by various jurisdictions, “[a] person is guilty of criminal homicide if he purposely, knowingly, recklessly or negligently causes the death of another human being.” MPC § 210.1(1). To constitute murder (aka first-degree homicide), the death must be “committed purposely or knowingly” or “under circumstances manifesting extreme indifference to the value of human life” such as during the commission of a violent felony.  MPC § 210.2(a)–(b). See also 18 U.S.C. § 1111 (“Murder is the unlawful killing of a human being with malice aforethought.”).

By contrast, homicide that is merely “reckless” or “is committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse,” is considered manslaughter. MPC § 210.3(1)(a)–(b). See also MPC § 210.4(1) (“Criminal homicide constitutes negligent homicide when it is committed negligently.”).  For all of these crimes, a “human being” is defined by the MPC as “a person who has been born and is alive.” MPC § 210.0(1).

Looking to the MPC for an answer to our sleeve death situation presents a couple of problems. First, although the consciousness of the person in the stack was born and is “alive,” the expendable sleeve itself is no longer irrevocably linked to the actual person. In our (future) world, the body and mind are effectively separated into distinct entities. To “cause the death” of a person, one would have to destroy his or her stack. Thus, the definition of “a human being” would need to be changed to accommodate this new dual-nature of one’s life. Second, the varying levels of culpability reflect society’s acceptance that all murders are not equal. These variances, however, are generally related to the mens rea (criminal intent) or the actus reus (the wrongful act) of the murderer, not the victim. Although this makes sense in a world where the death of the body equals the death of the mind, a person whose sleeve has been killed is not “dead” in the traditional sense.

A similar issue has already arisen in the context of individuals who are rendered brain dead (medically referred to as “neocortical death”) by someone’s attack, but are subsequently “killed” when taken off of life support. In People v. Eulo, the New York Court of Appeals decided whether a defendant could “be relieved of criminal liability for homicide by the removal of the victim’s vital organs after the victim has been declared dead according to brain-based criteria, notwithstanding that, at that time, the victim’s heartbeat and breathing were being continued by artificial means.” 63 N.Y.2d 341, 346 (1984).

In holding that the defendant may be held liable, the court reasoned “when a . . . a person has suffered an irreversible cessation of heartbeat and respiration, or, when these functions are maintained solely by extraordinary mechanical means, an irreversible cessation of all functions of the entire brain, including the brain stem, no life traditionally recognized by the law is present in that body.” Id. at 357–58. Accordingly, although the defendant’s mindset and actions are normally the primary considerations in a murder trial, the victim’s post-attack state and quality of life can and should be considered for new legal issues relating to life and death. See also Com. v. Golston, 373 Mass. 249 (1977).

Here, I doubt that destroying a person’s sleeve alone could constitute the death of the person’s consciousness or the irreversible removal of one’s “capacity to think, feel, communicate, or experience our environment.”  See David Smith, Legal Recognition of Neocortical Death, 71 Cornell L. Rev. 850, 860 (1986). It is unlikely, then, that the MPC’s current language would cover sleeve deaths alone without a few modifications. Initially, the legislature would have to adopt a broader definition of “human being” that includes distinctions for stacks and sleeves. Next, the levels of culpability would need to reflect the differences between a sleeve death, real death, and unintentional real death that was meant to be a stack death. See “The Vanishing Point,” Westworld (when the Man in Black kills who he presumes to be a copy of his daughter).

Then after adjusting the MPC’s conception of murder, we can rest easy knowing that futuristic prosecutors charging futuristic criminals for futuristic crimes are keeping society safe. Because this is The Legal Geeks and we spare no expense, here’s our proposal for a few Sci-fi Model Penal Codes (“SMPC”).