Thursday, May 21, 2020

Double Effect and the death penalty

Each of the ten million densely populated planets in Empress Alice’s vast intergalactic empire has an average of one person on death row who has exhausted all appeals. Empress Alice’s justice system is a really good one, but she knows it to be fallible like all justice systems, and her statistics show there is one in a million chance that someone sentenced to death who exhausted all appeals is nonetheless innocent. So Alice knows that of the hundred million people on death row, at least one is innocent (assuming independence, the probability that all are guilty is 0.99999910000000 = 0.000045). (If we think, as I do, that under ordinary circumstances the death penalty is unjustified, we may suppose that the empire is suffering from extraordinary circumstances such that roughly one case per planet of the death penalty is justified.)

Every year, there is a Day of Justice. On that day, the Empress issues the order that all who are on death row and have exhausted appeals are to be executed.

So, the Empress intentionally kills a million people. That by itself sounds terrible, but we have to remember that she has ten million planets each with billions of people in her empire. Alice is a morally sensitive person, and she is weighed down by unspeakable grief over what justice requires of her, but being an Empress she must do justice.

But what is worse, the Empress knows that at least one (and probably a couple more) of the million people she intentionally kills is innocent. And yet it seems wrong to intentionally kill those who are innocent.

Now, it seems that I’ve just committed a serious slip in reasoning. I’ve moved from the claim that Alice intentionally kills the million people to the claim that each was intentionally killed. Let’s say that Bob is one of the handful of innocents. Then Alice does not intentionally kill Bob, because she does not know anything about Bob specifically. Well, but that can be remedied. We may suppose that for a month prior to Justice Day, the Empress spends all her waking hours looking at the photo of every person she is to have executed, and praying a quick and specific prayer for them. At some point in the month, she did look at Bob’s photo and prayed: “God, have mercy on Bob and give comfort to his victims and his family.” We may even suppose that Alice has a photographic memory and when she issued her order, she saw all million people before her mind’s eye. That shouldn’t make any moral difference to the justification of the executions, though it adds to Alice’s imperial burden.

Perhaps the thing to say is this: Alice did a wrong unknowingly. A few of the people she had executed should not have been executed, but since she did not know who they were, she did not do wrong in intentionally killing them. But the worrying thing is that Alice also did know that she was doing a wrong. She knew that one of the people was innocent.

But maybe here I am sliding back and forth between two actions: the overarching “Execute them all” action, and the specific actions of killing Bob, Carl, and all the other people whose faces bring tears to the tips of Alice’s tentacles. The overarching action is not wrong, but it is known to include a wrong component. The specific actions include some that are wrong, but they are not known to be such.

But we (and Alice) are not home free yet. For Alice’s overarching action clearly is an action that she foresees to result in the deaths of innocents. Thus, its justification requires something like the Principle of Double Effect. Now one of the conditions in the Principle of Double Effect is that none of the means be evil. But killing Bob (and Carl and all the others) is indeed a means to executing “all who have been sentenced to death and have exhausted their appeals”. So among the means, there are some that are bad. And the Empress knows this. She just doesn’t know which ones.

Can we get Alice off the hook by saying that she is intending only the deaths of the guilty? But how is she planning to kill the guilty, if not by means of “executing them all”? And she who intends the end intends the means, so if she intends to kill the guilty by “executing them all”, she must be intending to execute them all.

This seems to be a serious problem for Double Effect.

One possible solution is this. Alice really is only intending the deaths of the guilty. And the means that she intends to this end are: Kill the guilty Bob, kill the guilty Carl, and so on for about a million others. Each of these means is legitimate. But she also knows that some of the means will fail. For since Bob is not guilty, killing the guilty Bob will fail. It is weird to have an action that is overall successful but some of the means to which fail. But that can still happen: think of cases where there is a multiply redundant safety procedure, which is overall successful even though some of the means in it fail.


Brandon said...

It's much like the Preface Paradox. I think, at least, that this is the point to press, that the problem is really not so much for double effect as for thinking that our decisions in these matters must be infallible. (I think there's a tendency to think that if we take a matter really, really seriously, we must therefore make sure there is no possible room for mistake about it. But this is not at all true; if you take a matter seriously, it's reasonable to try to eliminate mistakes, and sometimes unreasonable not to try to eliminate them, but this is not equivalent to saying that it is sometimes necessary to eliminate each and every mistake.) The problem will arise regardless of whether one accepts double effect or not -- everyone doing anything beyond a certain level of complication can recognize that it is impossible to eliminate all failure and error from the process, regardless of how desirable that would be, but that this is just the price of a human being doing something complicated.

Alexander R Pruss said...

I don't think the problem is with infallibilism of any sort. The problem is that the Empress is knowingly--or at least with a very high credence--requiring an innocent person to be killed.

Brandon said...

I don't think this can be true at all; first, she is not requiring that an innocent person be killed in any of the variations you give, but requiring that the guilty will be punished even though she knows that some innocent somewhere will also be killed due to the statistical inevitability of an error in the process of determining who is guilty. Requirements are under a description. And this is just how all large and complicated punishment systems work. There is no problem with this unless one holds that punishing someone (or at least punishing someone with punishments above a certain threshold) can only be done if it is known, without possibility of mistake, that they are guilty. And if this is the case, the wrongness has nothing particularly to do with double effect, as the problem is already built into the penal system; any injustice, for instance, would not be due to the consequence or second effect (an innocent is killed) but due to the object or first effect (making use of a system that is fallible to begin with). On the other side, if there's no problem with being fallible in this situation, then there's nowhere the Empress could be going wrong -- all she's doing is acting despite the known fallibility of the process, where that process is on a scale that mere fallibility has the further consequence of failures here and there.

Again, the structure is much like that of the Preface Paradox; your response is as if one said that the paradoxical nature of the PP comes from knowingly publishing an error, when in reality it consists of the fact that what you are publishing is something that you regard as right while nonetheless you recognize on other grounds that you will inevitably be wrong somewhere. And for there to be a problem in that case, there has to be a problem with regarding yourself as right when you know that you are fallible.

Consider a parallel. We are engaged in a large-scale agricultural industry that produces a vast amount of food. We have processes to make sure that this food is not contaminated with life-threatening bacteria, and perhaps they are very good. However, given the sheer scale of the operation and the tiny but measurable probabilities for failure, we in fact know that we can't get it all, so if we send it out, some trace amount of will inevitably be contaminated, and, again given the scale of our industry, this will happen enough that statistically speaking someone will die from contamination. This is in fact how agricultural industry works (it's how all large industries in which failure could result in death work). So is it a problem for double effect when we send out our food shipments? It doesn't seem so, because we can only be doing something wrong if it is only right to send food shipments when there is no possibility at all of contamination; but if that is the case, the problem is not with the further effect but with the object we were intending in the first place (sending food shipments knowing that on the scale being considered a few people would die). And double effect obviously can't justify something that is already wrong. On the other hand, if the original system of feeding people is itself fine, then double effect has no problem here: your object is to feed people, not kill them; it's just the tragedy of the world that feeding people will sometimes have the consequence of poisoning them. Either way, you are blaming double effect for something that happens upstream from it due to fallibility.

Alexander R Pruss said...

Yes, I see the parallel to the Preface Paradox. But in the Preface Paradox there is a simple solution: I assert every item in the book, but I don't assert their conjunction. In particular, I don't say: "Everything in the book is true." On the contrary--and that's the point of the preface--I say that it's not all true. But Alice doesn't just individually sentence each individual to death. Rather, she *sentences them all*, en masse, as a group, while knowing that this group contains innocents. On its face, it is her intention that this *this group of people* should die. But this group of people includes innocents, and she knows that.

It seems pretty clear to me that we're in Double Effect territory. After all, the paradigm example of Double Effect is when you drop bombs on an enemy military building knowing there are some innocents here. That's precisely a case where you are knowingly killing the guilty and the innocent. The Empress is also knowingly killing the guilty and the innocent. (We can even imagine that it's done in the same way: The ten million are brought to a deserted planet, and a super powerful bomb is dropped that humanely kills them all.) But at the same time there is a twist: for the Empress issues the order "Kill them all", and hence it looks like she is intending them all to die. On the other hand, in the military case, it would be a war crime against humanity if the commander said: "I know there are innocents in the area, but kill everyone in the area." Rather the order has to be (explicitly or implicitly) "Kill the combatants" (though one knows the innocents will die as well).