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 0.999999^10000000 = 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.

Defeaters and the death penalty

I want to argue that one can at least somewhat reasonably hold this paradoxical thesis:

• The best retributive justice arguments in favor of the death penalty are sound and there are no cases where the death penalty is permissible.

Here is one way in which one could hold the thesis: One could simply think that nobody commits the sorts of crimes that call for the death penalty. For instance, one could hold that nobody commits murder, etc. But it’s pretty hard to be reasonable in thinking that: one would have to deny vast amounts of data. A little less crazily, one could think that the mens rea conditions for the crimes that call for the death penalty are so strict that nobody actually meets them. Perhaps every murderer is innocent by reason of insanity. That’s an improvement over the vast amount of denial that would be involved in saying there are no murders, but it’s still really implausible.

But now notice that the best retributive justice arguments in favor of the death penalty had better not establish that there are crimes such that it is absolutely morally required that one execute the criminal. First, no matter how great the crime, there are circumstances which could morally require us to let the criminal go. If aliens were to come and threaten to destroy all life on earth with the exception of a mass murderer, we would surely have to just leave the mass murderer to divine justice. Second, if the arguments in favor of the death penalty are to be plausible, they had better be compatible with the possibility of clemency.

Thus, the most the best of the arguments can be expected to establish is that there are crimes which generate strong moral reasons of justice to execute the criminal, but the reasons had better be defeasible. One could, however, think that there defeaters occur in all actual cases. Of course, some stories about defeaters are unlikely to be reasonable: one is not likely to reasonably hold that aliens will destroy all of us if we execute someone.

But there could be defeaters that could be more reasonably believed in. Here are some such things that one could believe:

• God commanded us to show a clemency to criminals that in fact precludes the death penalty.

• Criminals being executed are helpless, and killing helpless people—even justly—causes a harm to the killer’s soul that is a defeater for the reasons for the death penalty.

• We are all guilty of offenses that deserve the death penalty—say, mortal sins—and executing someone when one oneself deserves the death penalty is harmful to one’s character in a way that is a defeater for the reasons for the death penalty.

(I myself am open to the possibility that the first of these could actually be the case in New Testament times.)

Two kinds of professions

Compare the metalworker and the swordsmith. The metalworker's profession is defined by a particular technique for achieving human ends: the production and modification of items made of metal. The swordsmith's profession, on the other hand, is not defined by any particular technique. It is, instead, defined by an end: the existence of a sword. The two sets of skills may overlap: both a swordsmith and an metalworker can make a sword of metal, and in so doing remain within their professional competency. But a swordsmith can remain within her professional discipline in producing a sword of horn, wood and flint (say, in an emergency when metals are unavailable), while the metalworker who made such a sword would not be working within her profession. On the other hand, the metalworker remains within her professional competency when she makes a metal spoon, while the swordsmith is not working as a swordsmith when she makes a spoon—even though she may be as qualified to produce a spoon as any metalworker, and more so than some.

We can in general distinguish means-defined professions and end-defined ones. Examples of means-defined ones: software engineer, electrical engineer, chemical engineer, metalworker, woodworker, machinist, applied mathematician, lawyer. Examples of end-defined ones: civil engineer, aviation engineer, swordsmith, bowyer, cabinet maker, physicist, pure mathematician, biologist, legislator. There will also be cases of professions defined both by and end means. Some of these result from specializations within a means-defined or an end-defined profession—and sometimes it will be unclear which way is the better way to look at it. Is a biomathematician an applied mathematician (means-defined) who uses mathematical methods for the sake of gaining biological knowledge, or is a biomathematician a biologist (end-defined) who uses mathematical methods to pursue the end distinctive of her biological profession (namely, biological knowledge)?

It may be that in all cases of end-defined professions there are some constraints on which means count as part of the distinctive activity of the profession. Thus, it may be argued not be a part of the civil engineer's profession to pray that the bridge not collapse, even though doing so promotes the end that defines her profession. However, it is not clear that this is so. It may be a prejudice to say that the civil engineer does not pray qua engineer.

Nonetheless, despite borderline cases, a basic division into professions primarily defined by a means or set of means, and those defined by an end or set of ends, seems helpful.

Does any of this matter? I think it can. For instance, consider this question: Is it the job of the physician, qua physician, to execute criminals? Assume that the case is one of the rare cases where capital punishment is morally permissible. As has been noted at least since the time of Plato, the physician's professional knowledge makes her the most effective person at both preserving life and taking away life. Moreover, her skills may particularly enable the taking away of life to be reliably painless. If the physicians's profession is primarily defined by means or techniques, then to execute painlessly falls under her profession just as much as to heal. If, on the other hand, her profession is defined in terms of ends, presumably the relevant end is something like the good functioning of the body, and this goal is not promoted by killing. And euthanasia is also not something that falls to the role of a physician.

I think our concept of a physician is a mix. When we talk of the crime of practicing medicine without a license, we are thinking of medicine as in part defined by a particular set of techniques. One does not count as practicing medicine without a license if one suggests to someone that she refrain from eating too many cheeseburgers or if one prays for her health. But only in part. If someone who is not a medical professional intentionally stabs someone else to death with a surgical knife, she would not, I suspect, be charged with practicing medicine without a license in addition to murder, no matter if she had pored anatomy books to figure out how to do the deed.

Still, I think, the primary focus in the medical profession is on the end. Consider that the physician remains within her medical role if the means she recommends to promote end of health involve pharmaceuticals, surgery, physical exercises, psychological exercises, the taking of a placebo, etc. Almost anything that in a morally acceptable way promotes health—with the possible exception of the supernatural—can legitimately fall within the scope of her medical recommendations. She might even diagnose that the patient's headaches are due to financial worries and recommend that the patient come up with a good budget. She would be going beyond her medical competence, I suppose, if she recommended a particular set of safe investments, but that may only be because recommending investments is not a skill that physicians typically have. (A particular practitioner of profession will not have all the skills that can fall under the professional role—the bowyer who cannot work in fiberglass can still be a competent bowyer.)

Moreover, most of the subdivisions within medicine, with the most obvious exception being surgeon, are end-based: the neurologist, the psychiatrist, the gastroenterologist and the pediatrician are each defined by which instances of the goal of health it is their special task to promote.

The pharmacist, on the other hand, is equally defined by means and by end. She does not act within her role if she prepares medication for an execution. It is, after all, her job to take solicitude for the health of the patient, ensure that she is not allergic to the drugs, etc. But she also does not act within her role if she performs surgery.