The factual details of a Penn State student’s death, after he deteriorated for twelve hours from skull and spleen injuries before his fraternity brothers called an ambulance, are haunting.  Resolution of the legal and social issues is more complicated.  How judges and juries handle this case will ultimately require determinations of who we are as a society, what choices we have, and how much we should be punished when we fail others in the most serious way.

There are no simple answers here, mostly hard questions.  But we must see clear to avoiding overly punitive measures while confronting the dark pathologies that contributed to Timothy Piazza’s death.  The gruesome, unforgettable images from this case have caused me to reconsider my own views on interlocking issues such as the role of the criminal law in shaping social behavior, anti-hazing measures, video surveillance, and personal responsibility.

Many, but not all, of the events leading up to Timothy Piazza’s death are captured on either video or on cellular phones.  On the night of February 2, Tim Piazza, a 19-year old sophomore, became exceptionally drunk during a ritual called “the gauntlet,” where those accepting their pledge bids to become fraternity members visit different stations to consume alcohol in different ways.  Piazza then fell down a flight of basement stairs.  Some members of the Beta Theta Pi fraternity were aware of the fall and carried his limp body upstairs, left him on a couch, slapped him, poured water on him, and “backpacked” him – a term used to describe putting a weighted backpack over someone so he doesn’t roll over and choke on his own vomit.

When one newly initiated fraternity brother yelled that they should take Piazza, who was thrashing around on the couch, to a hospital, the concerned fraternity brother was shoved into a wall and told that the situation was under control.   Over the course of the night, different fraternity brothers watched Piazza vomit, slammed him onto a couch after he rolled off, and punched him in the stomach.  Video footage also captures Piazza standing up and falling several times, lying in the fetal position on the floor, and positioning himself with his head on his knees.  Several brothers stepped over him when traversing the fraternity house.

On the morning of February 3, Piazza’s fraternity brothers observed his skin turn grey and discussed changing his clothes to make him look healthier before finally calling an ambulance.  Fraternity brothers also had conversations that are alleged to be attempts at a cover up, in which they discussed deleting video footage and lying about the circumstances in which they found Timothy.  Piazza died on February 4, of traumatic brain injury, which his doctor said would not have been fatal if he had been brought to the hospital sooner.

The facts of this case are shocking and confusing.  As a condition of their lease, these students surprisingly permitted their home to be under constant video surveillance.  Yet, despite this fact, they stunningly allowed a friend who had fallen down the stairs and was visibly bruised to suffer for an entire night and turn grey, cold, and limp before seeking medical assistance.  At first blush, the behavior of these so-called brothers of Piazza appears downright sociopathic.  It is incomprehensible how little ordinary students cared about another human being, even knowing they were being filmed.

Yet, some of the evidence of culpability may instead indicate caring about Piazza, or being unaware of the severity of his condition.  College students often do not want to call for medical assistance for fear of burdening an intoxicated friend – by either getting him in trouble or forcing him to incur unnecessary medical intervention or expense.  Many of the students at Beta Theta Pi were also drunk, having run the same gauntlet.  Students cannot predict which injuries are life-threatening, especially in an atmosphere where so many enjoy drinking, often to excess, without any serious repercussions.  Deaths like this are rare.  In the morning, Piazza’s fraternity brothers researched what to do about a concussion and cold extremities.  They were balancing Piazza’s needs with, to be sure, their own concerns about getting in trouble for hazing, underage drinking, or Piazza’s accidental injury from falling down the stairs.  Fraternity President Brendan Young sent text messages where he blamed himself, saying “how can I not.  I don’t think you fully comprehend the situation.  He looked fucking dead.”  This text exchange displays not only sorrow and contrition, but a lack of awareness of how much danger Piazza was in before the morning.

An additional layer of complexity is the district attorney, accused of ethics violations in previous cases, who may now be overcharging students in order to win re-election.   Eight students have been charged with involuntary manslaughter.  Ten other students have been charged with crimes such as reckless endangerment, tampering with evidence, and providing alcohol to minors.  Brendan Young has been charged with 200 crimes, including involuntary manslaughter, even though he appears not to have been among the people taking care of Piazza.  Others charged with involuntary manslaughter have similarly claimed that they did not supply Timothy with alcohol, were unaware of Piazza’s condition, and were absent for most of the evening.  Timothy Piazza’s parents are also set to file a civil wrongful death suit against the fraternity, its members, and the university.  Some of these students appear to be absorbing our collective, righteous anger — and the Piazzas’ very personal anger — about serious social ills.

In Pennsylvania, a person has committed involuntary manslaughter “when as a direct result of the doing of an unlawful act in a reckless or grossly negligent manner, or the doing of alawful act in a reckless or grossly negligent manner, he causes the death of another person.”  Defendants charged with involuntary manslaughter in Pennsylvania have, in previous cases, sprayed bullets indiscriminately from a car, given someone a lethal combination of heroin, morphine, and oxycodone, and driven drunk and crashed into another car, killing someone in the process.  Voluntary intoxication is not a defense to involuntary manslaughter, but involuntary intoxication from “duress” may be an affirmative defense.

Prior to learning about this case, my view was that modern social attitudes have lowered the bar on what constitutes coercion too far.  Anti-hazing laws in some states penalize mere pranks, infantilizing students and crushing fun.  Sexual assault laws, also based on the difference between coercion and consent, can, if the bar for coercion is too low, criminalize confusion between partners, putting people in jail for behavior which does not seem to have the requisite intent.  Criminal sanctions are appropriate and necessary when coercion is obvious and inexcusable.  But we haven’t yet reached a stable equilibrium on what constitutes coercion versus when we expect people to reject certain activities or speak out against unwanted behavior.

My own view has generally been that modern understandings of what constitutes coercion are too readily diminishing personal responsibility and, with it, choice.  Instead, the law should incentivize people to bravely refuse to partake in activities that displease them, unless a very high level of coercion exists.  This way, those who do want to engage in a wide range of activities will be entitled to make those choices, without fear that their choices will later be deemed coercive, or possibly criminal.   When pranks violate the criminal law, the government signals that we don’t have the capacity to stand up for ourselves, and thus, we cannot be entrusted or permitted to make certain choices.  (I have been told that a student newspaper scavenger hunt could constitute hazing, as could the delightful but scary pranks my coworkers used to play on me for April Fools – such as pretending my law review acceptance had been revoked.)

We cannot, and should not, eliminate all risks from the world; risks are necessary for progress and freedom, even though they also inherently possess downsides.  Plus, it is often fairer to expect people to explicitly oppose certain unwanted behavior than to expel the perpetrator from his university, or send him to jail.  Handing down a 20-year prison sentence to students who, perhaps partially correctly, do not feel criminally culpable for another person’s death will make the students, and the students’ parents, feel like martyrs.  Instead of rightfully feeling guilt and shame, these accused Penn State students may now feel outrage and sorrow at their treatment by an overzealous prosecutor for participating in a culture that touches many and unluckily affected them.

And yet.  The Penn State fraternity pledges themselves lamented the coercive elements of hazing.  Any one of them could have refused to drink more, or could have disassociated from the fraternity, without any real repercussions for their education.  But none did.  Any one of the fraternity brothers could have called 911 before twelve hours had expired.  But, tragically, none did.  This case has made me more aware that the law must not only reflect the world we want – the one where people are entrusted and incentivized to make their own choices – but the world we live in.  We live in a world where normal, young adults subject themselves to dangerous amounts of alcohol, watch their friend come close to death in their fraternity house, and then text message each other about deleting the evidence.  That is a world that should be changed, through social forces or perhaps the coercive force of the law.

The Piazzas suggest that universities should do better to ensure that every fraternity or sorority stop serving alcohol to minors and have an adult chaperone at all times.  That seems, to me, an extreme and unnecessary response to a horrible, but relatively rare event – especially given that college students over 18 are adults.  I also believe that involuntary manslaughter may be too strong a charge for many of those accused, especially those who were less aware of Tim’s condition.  I still believe we have taken anti-hazing laws too far in many instances, and should expect students to be allowed to make choices about fun, nonlethal initiation rituals, even if they may cause someone emotional distress.  But there is a difference between somewhat mentally distressing pranks and requiring pledges to drink until their blood alcohol level is .40.

The right balance between respecting autonomy and ensuring safety requires asking students to take measures to resist manipulation, but also recognizes that, in particular cultures, many students do not protect themselves.  Perhaps the criminal law has a place here, but not to advance the career of a corrupt prosecutor marshalling an overly punitive system to garner fame.  The hazing culture must be confronted, but not by undoing all drinking activities on college campuses or all organizational activities that are not perfectly sanitized.  This tragic death was preventable, and we must find ways of preventing it in the future without eliminating all risk, and all controversial choices, from our lives.  Perhaps all that was needed here was giving students lessons in recognizing the risk of alcohol poisoning or injury from concussions. Or perhaps this was a stark glimpse into the horrific callousness and fear lurking inside all, many, or some of us.