Kutner was the son of Russian Jewish immigrants and had one sister. Health problems kept him out of school until he was nine. Comparing himself to the fictional protagonists Studs Lonigan and Augie March, Chicagoans of his era, Kutner wrote that he too sought most any job, from playing the piano at a hotel restaurant to stints as a professional wrestler, while working his way through high school and then the University of Chicago, which he entered at age fifteen, and finally its law school. Short assignments as a reporter for the Chicago Herald and Examiner and as an investigator for the Chicago Crime Commission, for which he observed judges to see if they carried out duties impartially, influenced his future career and, overcoming a youth of poverty, provided persistent inspiration.
During legal studies he served as a clerk for the famous attorney Clarence Darrow and was inspired by Roscoe Pound, dean of the Harvard Law School. His relationship with Pound grew through mutual concern for human rights, which was then a new notion in international law. In 1930 Kutner began practice on his own, inspired by deep concern for the indigent, many of whom were made so by the Great Depression. He wrote to federal judges James Wilkerson and Charles Woodward of his willingness to provide counsel and won releases in his first year for more than 100 men incarcerated illegally. Fees barely paid his expenses, but it was this pro bono work that attracted the attention of several small corporations, his main clients in later years. By 1934 he had achieved enough local renown to run for the U.S. House of Representatives as the youthful opponent of a political machine. Despite losing the race, Kutner credited the effort and resulting publicity with finally assuring a steady stream of clients.
Also in the 1930s Kutner began to develop the concept that became the “living will” four decades later. At that time, to refuse care to a critically ill patient was regarded as tantamount to euthanasia. Brain-damaged and other patients were sustained by doctors despite a family’s request, written or otherwise, because the Hippocratic oath required it. Kutner felt that incapacitated individuals should have the right to guide their own medical care by means of a previously prepared document. With his gift for language and his abiding compassion, Kutner helped during years of effort to win the passage of federal and state legislation on the rights of critically ill patients.
Kutner was responding in part to medical advances that could prolong the life of patients suffering from what were previously fatal illnesses or injuries, and in part to an incident that touched him personally. The New York Times reported in Kutner’s obituary that he had watched a close friend, Dr. George Thilo, die slowly and painfully as the result of a violent attack by muggers. Thilo had expressed to Kutner his wish not to be kept alive by “heroic measures.” Public support of such restraint on the part of doctors came mainly from the Euthanasia Society, founded in the United States in 1938, which had had no success in changing prevailing opinion until Kutner voiced his new approach to what had been known as “voluntary euthanasia.”
Kutner conceived the living will as a revocable trust established by an individual over his or her own body. In 1967 he wrote the first living will. His concept became universal in the United States, though some debate whether individuals understand what is covered in their living wills or what is meant by durable powers of attorney for health care. Among many developments, in 1975 the Euthanasia Society reactivated itself as the Society for the Right to Die, and in 1976 California became the first state to pass legislation allowing a living will. In 1990 the federal Patient Self-Determinations Act went into effect. It requires health-care providers to inquire whether patients have prepared an advance directive as to their terminal care.
The other great cause Kutner championed, a worldwide code of habeas corpus, did not become law. The concept was originally developed to prevent secret confinement of an accused person. Kutner sought to have that right enforced by the United Nations, which would compel states to reveal where and why a prisoner was being held and why he or she had not been formally charged, given a trial, or released. Kutner headed during the 1970s and 1980s the Committee for International Due Process of Law, also known as World Habeas Corpus. The European Convention on Human Rights embraced the code, but Secretary of State Dean Acheson in the Truman administration called it “unworkable.”
Despite the lack of progress on the code, Kutner’s commitment to the extension of human rights was influential. Kutner himself represented many world political and cultural figures held in questionable circumstances, among them Cardinal József Mindszenty, who was detained in Hungary in the late 1940s; the journalist William N. Oatis, who was imprisoned in Czechoslovakia in 1952 and freed through the assistance of, among others, Eleanor Roosevelt, then a member of the U.S. delegation to the United Nations; and the American poet Ezra Pound, whose radio broadcasts from Rome of Fascist propaganda resulted in his 1945 arrest and trial for treason, followed by confinement to an American mental asylum for twelve years. In 1961 Kutner joined Peter Benenson, also of Russian-Jewish descent, in founding the human rights organization Amnesty International in London. In his long career Kutner also served as U.S. consul to Ecuador, Guatemala, Venezuela, Haiti, and Ghana. He was eighty-four when he died of heart failure; his wife of fifty-nine years, Rose, and a son survived him.
Despite all his accomplishments, Kutner is not as well known as other attorneys, such as Abe Fortas, Arthur Goldberg, Abner Mikva, and Louis Nizer, of his era. His interests may have been too wide-ranging, his humor a touch quirky. For example, he titled one somewhat dry but useful law handbook of 1970 Legal Aspects of Charitable Trusts and Foundations: A Guide for Philanthropoids. His plays, such as The Trialle of William Shakespeare; Beinge a Playe in 3 Acts to Be Rede and/or Performed (1974), have received only limited production. An acquaintance from Chicago described Kutner as a gentleman of his city’s Gold Coast, who most always wore an ascot and took tea on Friday afternoons at the Ritz. In addition to the great issues of his legal career, he was enthusiastic about poetry, music, and art. In books such as The Intelligent Woman’s Guide to Future Security (1970) and Due Process of Rebellion (1974) and in other writings he expressed a range of progressive thought before its time. But although the world now has thousands of death-with-dignity and human rights organizations, Kutner’s efforts have not received their due.
Most of Kutner’s writings are out of print, but many remain available in law libraries. His semiautobiographical career guide to and history of the law I, the Lawyer (1966), though written mainly for young adults, offers insights into the author’s passion for justice. See also Marjorie B. Zucker, ed., The Right to Die Debate: A Documentary History (1999). Development of the living will is chronicled in an article in the Indiana Law Journal 44 (1967): 547-548. Myrna Oliver, “Controlling the End,” Los Angeles Times (23 May 1988), and Diane E. Hoffmann, Sheryl Itkin, and Catherine J. Tompkins, “The Dangers of Directives or the False Security of Forms,” Journal of Law, Medicine and Ethics 24, no. 1 (1996): 5-17, offer overviews of contemporary complications surrounding death and legislation. The Human Right to Individual Freedom: A Symposium on World Habeas Corpus (1970), edited by Kutner, contains an introduction by Roscoe Pound, contributions by international authors, and Kutner’s paean, “The Ultimate for Unity of Mankind.” Obituaries are in the New York Times (4 Mar. 1993) and the London Times (5 Mar. 1993).
Alex T. Primm