In Death They Were Not Alone—a guide to The New York Times coverage of Hart Island from 1869-2016

Screen Shot 2016-09-25 at 2.12.05 PMI admit that I am conflicted about the controversy surrounding Hart Island, the potter's field that has served New York City since the 1840s.  Isolated on an island and operated by the New York City Department of Correction, Hart Island is the last resting place of approximately 1 million New Yorkers -- each in an individual casket but stacked in trench graves.  Many view this as disrespectful to New York's indigent dead because of the limited access, the lack of individualized graves, the use of correctional labor, and the use of trench graves.  Many other cities, on the other hand, cremate the indigent dead or donate their cadavers to a variety of institutions and educational facilities, including mortuary schools, dental schools, and medical schools.  Which of these options is more or less respectful? 

The trench graves at Hart Island, shown in an 1890 photograph by Jacob Riis:


The New York Times has written extensively about Hart Island over the years.  If you want to get up to speed on the history of this unique burial ground and the modern controversy surrounding it, you can do so without every leaving The New York Times website. 

The Old Potter's Field (The New York Times, May 31, 1853)

The City Authorities are cutting a street through the old Potter's Field, in East Fiftieth-street, where so many victims of the Cholera were hurriedly interred in 1832. The coffins were then, in many instances, stacked one upon another; and now, in digging through the hill, the remains of twenty coffins may be seen thus piled together. It is altogether an unpleasant sight, but does not seem to cause any interest beyond the immediate neighborhood.

New Potter's Field (The New York Times, March 29, 1854)

A proposition is before the Board of Governors for the purchase of additional lands on Ward's Island for the purposes of a City Cemetery, or Potter's Field. It is time that the remains of paupers were interred in some quarter better fitted for their last resting-place than the one now used on Randall's Island. A more disgusting spectacle can scarcely be conceived than the trenches filled with coffins, loosely covered with earth and subject to trespass, which now receive the bodies of the City's poor. The old Potter's Field was a disgrace to the City, years ago; and continued use has made it much worse. The dictates of propriety point to the obvious requirement of a new location.

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Dancing with the Idea of Death

DSC02754 (1)This past summer while complaining to my law professor and summer employer, Tanya Marsh, about my dismal excuse for weekend excitement she decided to invite me to a conference where she was scheduled to speak. A road trip—that sounded like a great idea. Immediately, I was ready to say yes. Then the topic of the session and conference surfaced “Who Owns the Dead” was Professor Marsh’s session (which by the way is very misleading —the dead are not property and therefore cannot be owned) at the bi-annual conference for the Funeral Consumers Alliance (FCA). In the wisdom of some great employment advice I once received—always say yes to new ideas, projects, and opportunities—I was off, death bound, to Atlanta.

During the time leading up to the conference I tried not to think too much about what I might find there. My experiences with death up to that point were not light. Even as a young person, I had encountered deaths of family friends, family members, and even high school classmates. The routine was always the same, pay your respects at the funeral home and then attend a funeral service before burial. It was never quite clear to me if when paying “your respects” it was to the deceased, or to their family, but in the moment there was no time to question the formalities. Instead, it was a time to follow your parents’ lead and to provide support, compassion, and empathy to those grieving—and that I did without even one question. Questions however, became the theme of my time at the FCA conference. I questioned the practices of the funeral industry, the practices of my family, the law, the economics, the convention, the science, the truth, and the very idea of death and what it means to me and to others.

The conference brought too light so many interesting death related problems that had never crossed my mind. When someone dies who do you call? Can you move and transport the body? Is it a health risk while in your house? Do you need to embalm the body? Do you need to have a viewing in a funeral home? Can you have the body cleaned and laid out your own home? How do you get a death certificate? Who can help you plan? And each of these questions beckoned nuisances like what is the law? What is the normal protocol? What is the expectation? What would the deceased want?

In hearing each answer more questions flowed and soon I realized that I was surrounded by those whose life was essentially death. These individuals included some funeral directors, some death care entrepreneurs, and some without a category at all made caring for the dead and those touched by death their very life’s work. Even more astonishing, was seeing the vitality with which they all advocated for the beauty and peace of death. With this realization, I started my own journey to join their mindset. Death is mysterious and unknown, but more than that, it is inevitable. We want in life the ability to freely choose how, when, where, and why. We live with purpose, passion, and conviction. We think about and learn about the world around us—but too often we fight the thought of dying. The thought of leaving all that we know and entering the unknown. But, the thoughts about death are what lead to questions about life and about living.

The conference ended with final dinner during which author Kate Sweeney read some excerpts from her new book, American Afterlife Encounters in the Customs of Mourning. The excerpts were some of Kate’s favorite stories about loved ones left behind and how they decided to deal with their loss. One particular story was about individuals that wanted their remains made into coral reefs, and how Kate joined these families as they set out to sea to experience their loved one’s final resting place. The scene she set was not one that reminded me of my experiences with mourning, nor was it a scene that reminded me clearly of anything I have yet experienced. But in that scene was a hope and a peace, an answer to the millions of unanswered questions about death. The truth is that where we are left when we die means very little in comparison to whom we leave behind.

The consumer of funeral services is not the deceased, it’s the living left behind. In that truth is the answer also to whom respects are paid—they are paid to the living, to those mourning the death. The FCA conference taught me that thinking about death is an essential part of life and that there are joyful, dedicated, and compassionate people that live in order to make death just a little more bearable. What we owe them, to ourselves, and to those we will leave behind is more than a thought about death when it’s on our doorstep. We owe each of them a dance—a dance with the idea of death. The idea of our own death, what it means to us and more importantly what it means to our world, especially our own little corner of the world that we leave behind.

Brandy Nickoloff

Powerpoints from NYSAC: Invention of American Cemetery Law & Emerging Developments in Death Care Law

I had a great time at the 88th Annual Fall Conference of the New York State Association of Cemeteries.  I was privileged to speak on two topics -- "The Invention of American Cemetery Law" and "Emerging Developments in Death Care Law."  If you're interested, the powerpoint presentations that I used are posted below.

Download 9-19-2016 Invention of American Cemetery Law

Download 9-19-2016 Emerging Developments in Death Care Law

Tanya Marsh

What Treatment of a Corpse will "Outrage Ordinary Family Sensibilities"?

On October 1, 2014, Goldia Massey of Cynthiana, Kentucky was reported missing by her son.  She was later determined to have died “on or about” September 21, 2014.  Upon her death, her body was sawed to pieces and dumped into the Kentucky River.  In October 2014, Massey’s arm was found along the river in Henry County and her torso was found that December along the river in Jessamine County.

In August 2016, the jury took less than three hours to find Paris Charles, a 60 year old handyman and former boyfriend of Massey, guilty of her murder and abuse of her corpse.  While sentencing will take place later this week, the jury recommended a 35-year sentence for murder and a $500 fine for abuse of a corpse.

Kentucky Statute §525.120 dictates that a person commits the crime of abuse of corpse when “he intentionally treats a corpse in a way that would outrage ordinary family sensibilities.”  It is a Class A misdemeanor unless the abuse involves sexual intercourse or “deliberate failure to prepare, bury, or cremate a corpse” after entering into a contract to do so.  In these cases, the abuse will be categorized as a Class D felony.

The case of Golida Massey clearly does not fall into the felony provision of the statute; there is no evidence of sexual activity with her corpse and the abuse did not happen as a result of a breach of contract.  Charles was convicted under the misdemeanor provision of the statute, which prohibits any treatment “that would outrage ordinary family sensibilities.”  What is an ordinary family sensibility?

While most will likely agree that sawing a corpse to pieces would “outrage ordinary family sensibilities,” this provision is extremely ambiguous.  America is composed of many religions and types of families.  Is there really an “ordinary family” that can be used to judge inappropriate treatment of human remains?

Had Massey's body been sawed up in another state, the criminal statute might have more definitively prohibited the behavior.  For example, some states prohibit “mutilation” of a corpse.  Illinois goes further and specifically defines the crime of dismembering a corpse as when an individual “knowingly dismembers, severs, separates, dissects, or mutilates any body part of a deceased’s body.”

Kentucky, however, is among many states that define abuse of a corpse only in terms of what would offend an ordinary family’s sensibilities.  While most jurors will likely consider sawing up your girlfriend’s body to offend ordinary sensibilities, what will happen when a defendant commits a slightly more subtle injustice to his girlfriend’s corpse?  Will ambiguous state statutes let him slip away unpunished?  What will happen when grieving loved ones perform a unique ritual as part of a religious tradition?  Will ambiguous state statutes criminalize their grief?  What really is an "ordinary family"?

Lauren Stovall

Cemetery Tourist: A Visit to Stonewall Jackson Memorial Cemetery in Lexington, Virginia

DSC02787I drove from Winston-Salem, North Carolina to Hershey, Pennsylvania today, en route to the 88th Annual Fall Conference of the New York State Association of Cemeteries.  I stopped in Lexington, Virginia, the home of Virginia Military Institute and Washington & Lee University, to visit the Stonewall Jackson Memorial Cemetery.  I visited Lexington last fall but didn't think to stop by the cemetery.  I made up for that today.

The Stonewall Jackson Memorial Cemetery was founded as the churchyard of the Lexington Presbyterian Church, which established a congregation in 1789.  According to the Church's website,

General Thomas J. ("Stonewall") Jackson was a member of this church from the year of his arrival in 1851 as a professor at the Virginia Military Institute until his death in 1863. Until his departure from Lexington in April of 1861, Jackson taught a Sunday School Class that was well-attended by the town's African-American population. Jackson's next return to Lexington was for burial in the Presbyterian Cemetery on 15 May 1863.

The Cemetery is a beautiful, well-maintained example of a Southern cemetery.  There are a wide variety of tombstone styles, as well as mausoleums. 


There are a number of lovely family lots, some surrounded by iron fencing and others by stone coping.  Some have consistent tombstone styles and others are quite individualistic. 



There are also a significant number of graves of Confederate soldiers, many of which are marked by "C.S.A." symbols.


And at the center of the Cemetery is the grave of Stonewall Jackson.


Tomorrow I'll visit Gettysburg National Cemetery.  Jackson didn't make it to the Battle of Gettysburg, which was fought July 1-3, 1863—he was shot and killed at the Battle of Chancellorville a few months before.  Approximately 50,000 soldiers were killed or wounded at Gettysburg, making it the bloodiest battle of the Civil War and ending General Robert E. Lee's final attempt to invade the North.  But Lee did make it back to Lexington, Virginia after the War, serving as president of Washington and Lee University from 1865 until his death in 1870.  General Lee is also buried in Lexington, in the crypt beneath Lee Chapel on the campus of Washington and Lee.


Tanya Marsh

Sending Joe the Plumber to Pick Up Grandma's Body

Even when the dead bodies Zachary Smeltz lifts for a living are hefty, he makes sure to handle even the burliest corpse in a gentle manner, masking any exertion. “Treat every case like that’s your mom that you’re transferring,” is the motto Mr. Smeltz imparts on the staff of the mortuary transport business he owns that sends him all over New Jersey and Pennsylvania and to other locales, picking up bodies.


This is how protectionist occupational licensing regimes emerge and are strengthened. Well-meaning outside observers write about something they don't really understand, in this case the "shadowy and sometimes controversial industry" of body transport companies, and then suggest that the answer to the hypothetical problems is more regulation.

"Others in the funeral industry contend the body transport business should be more strictly regulated," The New York Times reports.

“There are some states you don’t even have to be a funeral director,” said Scott M. Schmidt, the president of the New York State Association of County Coroners and Medical Examiners. “You just hang a shingle on a wall and you’re an undertaker all of a sudden.”

First of all, it is absurdly untrue to suggest that anyone can "hang a shingle" and become an undertaker anywhere in the United States. Second, yes, of course people within the industry want more regulation to restrict these activities to those within their industry. It is called economic protectionism.

"The purpose of New York’s stringent regulation, Mr. Schmidt said, is 'so you’re not sending out Joe the Plumber to pick up Grandma at the nursing home.'"

Because we all know what a problem THAT is...

Tanya Marsh

Internet Sales of Human Remains Persist Despite Questionable Legality

Conor Gearin recently wrote an article for The New Scientist entitled "Hundreds of mystery human skulls sold on eBay for up to $5500."

The article begins:

A morbid market. Staffers at the Louisiana Department of Justice in Baton Rouge tracked the sale of human skulls on eBay for seven months. During that period, 237 people listed 454 skulls for sale, with opening bids ranging from one cent to $5500.

Until last week, eBay’s official policy as stated on its website was that it doesn’t allow the sale of human remains, with two exceptions – “items containing human scalp hair, and skulls and skeletons intended for medical use”. However, sellers could say that skulls were for medical use without proving it, and still sell them as curiosities, says Tanya Marsh at Wake Forest University in Winston Salem, North Carolina.

Following the study’s publication, eBay recently changed its policy to ban sales of all human body parts except hair.

On average, the opening bids were about $650. Skulls described as pathological – coming from someone with a disease – went for similar prices as other skulls. Specimens cleaned and articulated for teaching started at about $50 more, though.

You can read the rest of the article here.

I checked eBay today and the policy appears to be working - no listings that appear to be for real human skeletons or skulls appear.  However, it is still pretty easy to purchase human remains online.

Skulls Unlimited currently lists 115 products in the category "Real Human Skulls & Skeletons" including 23 human skulls with most prices in the $1,250 - $1,850 range.  A full human skeleton is offered for $5,200.  Skulls Unlimited won't sell human remains to just anybody:

In order to honor the donors who have graciously made this material available to the educational community, Skulls Unlimited will only place these specimens with medical or educational professionals such as college professors, teachers, doctors, nurses, dentists, physical therapists, occupational therapists, respiratory therapists, dental assistants, optometrists, x-ray technicians, ultrasound technicians, crime scene investigators, and lawyers.

The Bone Room currently offers approximately 50 human skulls, including 15 skulls from fetuses, infants, and children under the age of 7.  You can buy a 4 year old child's skull for $3,500, FYI.  But don't worry, The Bone Room says that this is all perfectly legal:

Human Bone Laws & Information - In short, it is perfectly legal to posses and sell human bones in the United States. There are a few exceptions to this: a few states have banned import and export, and of course, all archaeological resources protected by the Native American Graves Protection and Repatriation Act.

Readers are urged to visit the site's "Bone FAQ" page, which offers additional information:

In short, there is no law at the U.S. Federal level prohibiting you from having a human bone in your possession. The fact that some people believe there is or believe there should be such a law is irrelevant.

This is not to say that such laws do not exist in other countries, or at the local level. For example, three US states, New York, Georgia & Tennessee, all have independent State Laws prohibiting the import or export of human remains across their state lines. While we work hard to remain current, laws are passed worldwide faster that the human mind can track or comprehend, so you must be responsible to know your local laws before ordering.

We work within the framework of U.S. Federal, California State, and International Treaty Law. Within these jurisdictions, there are no prohibitions on the sale or possession of human bones.

The Bone Room's FAQ is somewhat correct—there are few laws in the United States that explicitly prohibit the possession and sale of human bones. But that is because the law doesn't distinguish between intact human remains and human bones.  The bigger problem that the sellers of human bones have (particularly since both Skulls Unlimited and The Bone Room have pages on their sites offering to purchase human bones) is that there is no way in the United States to legally transform intact human remains into human bones. 

When a person dies in the United States, the state must be informed and a death certificate issued.  Prior to final disposition of the remains, another certificate, usually called a burial and transit permit, must also be issued by the state. There are particular rules regarding the treatment and disposition of those remains.  For example, in no state is it permissible to transform intact human remains into a skeleton.  The Bone Room specifically references California law in its FAQ, presumably because it is located in California.  It may be interested in this California law:

“Except as authorized pursuant to [§§ 7054.6, 7116, 7117, and 103060], every person who deposits or disposes of any human remains in any place, except in a cemetery, is guilty of a misdemeanor.” Cal. Health & Safety Code § 7054.

I'm not their lawyer, but that statute doesn't seem consistent with the idea that it is "perfectly legal" for them to possess human remains in California. 

Tanya Marsh


FCA Petition calls for Revision of Outdated FTC Funeral Rule

The internet has transformed the way Americans shop from cradle to grave, the funeral industry has a little more catching up to do. A Federal Trade Commission (FTC) rule governing price disclosure for funeral homes was last updated in 1994, its language failing to predict our nation’s coming obsession with online commerce. A petition submitted to the FTC this July by the Consumer Federation of America and the Funeral Consumers Alliance seeks to update this rule to bring more funeral home pricing online and into the 21st century.

The FTC first adopted its “Funeral Rule” in 1984 and last revised it over 20 years ago – long before ubiquitous internet access and the cultural norm of online comparison shopping. The Funeral Rule attempts to provide protection to consumers by requiring funeral directors to provide a written, itemized general price list upon request and to inform consumers of their right to purchase services and products a la carte. In recognition of the vulnerability of funeral consumers in the wake of loss, such required disclosures enable the buyer to make informed decisions about the funeral services and products they purchase. However, as written today, the rule applies to requests for pricing either over the telephone or in person. Nothing in the rule contemplates the role the internet now plays in making purchasing decisions. As consumers have grown used to the transparency and ease of price comparison online, the Funeral Rule has been left untouched, and the funeral industry has been reluctant to change on its own. An October 2015 survey of funeral industry practices nationwide revealed that fewer than 25% of funeral homes with websites fully disclosed their prices online.

Of those funeral providers that do publish prices online, many only disclose their rates for all-inclusive packages without informing consumers of their right to purchase products and services a la carte. If these funeral homes failed to inform consumers of this right in a paper disclosure, it would directly violate the FTC Funeral Rule. However, as it stands today, it is completely legal for a funeral home with a website to publish limited, misleading, or even no pricing information online. Bereaved consumers visiting these websites are often met with slick targeted marketing, but denied crucial information about the costs associated with the images being sold.

The costs are not insignificant. In 2015, the median cost of a funeral with viewing and burial was just over $7000. However, a 2011 study cited by the petitioners found that approximately half of all American households would struggle with an unexpected expense of only $2,000. Few people would consider a funeral an optional expense, but many Americans have difficulty affording one in today’s market. When prices are kept out of public sight, the market lacks the competition necessary to lower costs.

The petition from the Consumer Federation of America and the Funeral Consumers Alliance calls for the FTC amend its Funeral Rule to include mandatory online price disclosures for funeral homes with websites. Proponents of the amendment argue that requiring online price disclosure would bring funeral homes into compliance with the spirit of the original Funeral Rule – that a consumer engaging in a sales interaction with a funeral home has the right to an itemized general price list, whether that interaction is in person, on the telephone, or through a screen. They also argue that increased availability of pricing information online will act to deflate the artificially high funeral industry prices through consumer access and choice.

Although the Funeral Rule is slated for review in 2019, consumer advocates are adamant that now is the time for revision. In a press release from the Consumer Federation of America, Josh Slocum, Executive Director of the Funeral Consumers Alliance, remarked, “We hope that the FTC acts promptly upon our request. … Grieving families don’t have time to wait.” The petition was submitted on’s “Prime Day” to underscore our culture’s firm entrenchment in its online shopping habits.

Erin McKee, JD, MFA

Powerpoint & Handouts from Funeral Consumers Alliance Presentation

I recently gave a presentation at the Funeral Consumers Alliance Biennial Conference in Atlanta.  Awesome conference! 

The lighting in the room was a little hazy and I ran out of handouts (I thought 40 would be enough!), so I promised that I would share the files here.  Even if you didn't attend the conference, you may find them interesting.

Download Marsh FCA Presentation Powerpoint

Download ABA PP v030n02 When Dirt and Death Collide

Download In the Matter of the Estate of Mary Florence Whalen

Tanya Marsh