Abstract
American criminal law is committed to some version of the doctrine of double effect (“DDE”). In this paper, I defend a new variant of the agent-centered rationale for a version of DDE that is of particular relevance to the criminal law. In particular, I argue for a non-absolute version of DDE that concerns the relative culpability of intending a bad or wrongful state of affairs as opposed to bringing it about merely knowingly. My aim is to identify a particular feature of the former in virtue of which it is pro tanto more culpable than the latter. Providing an agent-centered argument of this kind for a culpability version of DDE, I argue, is an especially attractive route to take for those who are interested in vindicating the way the criminal law actually encodes DDE.
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Notes
See Model Penal Code § 2.02(a)(i) (defining the mental state of purpose). I use “intentionally” and “purposefully” interchangeably per the legal convention. See infra note 3.
See Model Penal Code § 2.02(2)(b) (defining the mental state of knowledge as awareness or practical certainty). I use “foreseen effect” interchangeably with “effect one knows one will bring about.”
Wayne LaFave, 1 Substantive Crim. L. § 5.2 (2d ed.) (“the modern approach is to define separately the mental states of knowledge and intent (sometimes referred to as purpose …)”).
Id. (footnote 9).
330 U.S. 631, 633 (1947).
Id. at 641.
Id.
Id. at 642.
Id.
Dana Nelkin and Samuel Rickless, The Relevance of Intention to Criminal Wrongdoing, Crim. L. & Phil. (forthcoming) (manuscript at 12), available at http://link.springer.com/article/10.1007/s11572-014-9343-0.
Id. See also Warren Quinn, Actions, Intentions, and Consequences: The Doctrine of Double Effect, 18 Phil. & Pub. Aff. 334 (1989).
Nelkin and Rickless, supra note 10. See also Thomas Nagel, The View from Nowhere 181 (1986).
William FitzPatrick, The Doctrine of Double Effect: Intention and Permissibility, 7 Phil. Compass 183 (2012).
Ralph Wedgwood, Defending Double Effect, 24 Ratio 384, 385–86 (2011); Neklin and Rickless, supra note 10 at 13.
Michael Moore, Causation and Responsibility 48 (2009).
Model Penal Code § 2.02(a)–(d).
Kenneth W. Simons, Should the Model Penal Code's Mens Rea Provisions Be Amended?, 1 Ohio St. J. Crim. L. 179, 195–196 (2003).
Haupt, 330 U.S. at 641.
Model Penal Code § 241.5 (emphasis added).
Id. § 242.3 (emphasis added).
Id. § 240.2 (emphasis added).
Id. § 5.01 (emphasis added). See also Nelkin and Rickless, supra note 10 at 2–4.
Id. §§ 5.02, 5.03.
Douglas Husak, Overcriminalization: The Limits of the Criminal Law 182 (2008).
Of course, other explanations might be found. Perhaps purposeful misconduct is somehow more serious than the analogous merely knowing misconduct, although the former is no more culpable than the latter. I have doubts about this possibility. Still, my point is just that if we secure a culpability version of DDE, this would suffice to make sense of the practice of punishing purposeful misconduct more harshly than analogous knowing misconduct.
See Nelkin and Rickless, supra note 10 at 11. Wedgwood also emphasizes the need to focus not on overall justifiability, but rather just on the bad-making features of one’s conduct. See supra note at 14 at 385–86 (2011). He, in turn, attributes the insight to Quinn. See supra note 11.
Nelkin and Rickless, supra note 10 at 13.
Wedgwood, supra note 14 at 384 (taking DDE to be the claim that there is “a stronger reason against an act if that act has a bad state of affairs … as one of its intended effects than if [it] is merely one of the act’s unintended effects”).
Larry Alexander, Insufficient Concern: A Unified Conception of Criminal Culpability, 88 Cal. L. Rev. 931, 943 (2000).
Id.
Id. (emphasis added).
To illustrate, notice that the following pair of cases is no counterexample to DDENAC. In Case 1, P1 intentionally kills innocent victim, V, in order to save P1’s son from being tortured for an afternoon. An evil tyrant will refrain from torturing P1’s son iff V dies by P1’s hand. Thus, P1 shoots V intending to cause V’s death. Suppose that this killing isn’t actually justified, although it nearly is. In Case 2, a trolley is careening down the track towards a four-leaf clover, and to prevent it from getting squished, P2 redirects the trolley onto another track to which V is bound. P2 acts while merely knowing that he will cause V’s death. Still, P2’s act is much more culpable than P1’s act.
DDENAC isn’t undermined by these cases. This is because P1 perceives additional reasons that help justify his action (although they don’t fully justify it), but these considerations don’t apply to P2. While there is one respect in which P1’s action is more culpable than P2’s (in virtue of P1 intending the death and P2 only foreseeing it), this is outweighed by another difference between them—namely, that the benefits of P1’s action are so much greater than P2’s action. Thus, P2’s action is on-balance far worse than P1’s. DDENAC is compatible with this result because it just entails that there is one respect in which P1’s act is worse than P2’s.
One might object that because DDENAC is not formulated in terms of on-balance culpability, it is too weak to be interesting. Nonetheless, it has implications about overall culpability provided all else is equal. Specifically, if we hold fixed both the harm in question and the benefits the two actors are seeking, then we plausibly can say that intending harm is on-balance worse than merely foreseeing it. DDENAC could be formulated accordingly.
Nelkin and Rickless, supra note 10 at 11–13; Nelkin and Rickless, So Close, Yet So Far: Why Solutions to the Closeness Problem for the Doctrine of Double Effect Fall Short, 49 Nous 376, 404 (2015); Nelkin and Rickless, Three Cheers for Double Effect, 89 Phil. & Phenomenological Res. 125, 128 (2014); Quinn, supra note 11; Wedgwood, supra note 14.
Nelkin and Rickless, supra note 10 at 17; see also So Close, Yet So Far, supra note 34 at 402–04.
Nelkin and Rickless, supra note 10 at 17.
Other accounts of the means principle might treat using the property of others as analogous to the use of the person. I doubt that this analogy can be sustained, but I can’t deal with all forms of the means principle here.
Other purpose crimes can be committed in ways that do not use people as means without their consent, or do not otherwise directly involve anyone else. For example, concealing a fugitive is criminal if done “with purpose to hinder [his or her] apprehension …” See supra note 20. But it is possible to commit this crime even if everyone involved in the act of concealment consents to being used that way. Moreover, one might conceal someone for this purpose without directly involving the concealed person—e.g., by planting misleading information about the fugitive’s whereabouts in the police computer system. Similar points apply to conspiracy and solicitation. See supra notes 22–23.
Nelkin and Rickless, So Close, Yet So Far, supra note 34 at 402.
Id.
Id.
Id.
See Moore, supra note 15 at 48. Moore focuses on a culpability version of DDE that concerns only cases in which there is no justification for bringing about the bad or wrongful state of affairs in question.
If one wants to say that it’s more culpable to intentionally kill one in order to save five than it is to merely foresee that one will die as the result of saving five, then we could attempt to extend the argument I offer below to explain this result. However, I’m not sure this is what we want to say about the cases. Since both cases plausibly involve conduct that the actors know to be justified and thus permissible, one might think neither actor is at all culpable for his conduct. Accordingly, I suspect there is independent reason to follow Moore in restricting our culpability version of DDE to cover only cases involving unjustified conduct.
See Wedgwood, supra note 14 at 393–94.
See FitzPatrick, supra note 13 at 187; Wedgwood, supra note 14 at 396–97; Matthew Liao, The Closeness Problem and the Doctrine of Double Effect: A Way Forward,” Crim. L. & Phil. (forthcoming).
Nelkin and Rickless, So Close, Yet So Far, supra note 34.
Nelkin and Rickless, supra note 10 at 11–13.
Id. at 13; see also So Close Yet So Far, supra note 34 at 404.
Nelkin and Rickless, supra note 10 at 13.
Id.
One might worry that the closeness problem still arises even in this pair of cases. After all, in Arson 2, Bobby might insist that he didn’t actually intend to kill Victor, but rather only intended to make it appear as though Victor were dead, so he would receive the $5000. But this worry is blocked by certain stipulations about the case. Specifically, we’re supposing that Tony has a perfectly reliable method of detecting whether Victor in fact is dead. Thus, Tony cannot be fooled into thinking that Victor dies when in fact he survives. Given this stipulation, Bobby will have to aim at Victor’s death itself. Bobby will be unable to maintain that in fact he only aimed to make it appear as though Victor died.
Here is the treason analog of Arson 1. Suppose that Fritz, an operative for the Axis powers during WWII, offers to pay Alan $5000 to burn down a remote and unimportant warehouse, but it has to be done before midnight or Alan won’t get paid. Alan agrees. He arrives at the building at 11:30 pm and, as he is about to light the fire, he sees that the building contains a shipment of technical schematics whose destruction would hurt the U.S. war effort. No one arrives to cart away the technical schematics before midnight, so Alan proceeds to light the fire knowing that this will end up aiding an enemy of the U.S. As expected, the schematics are destroyed in the fire. Alan finds it regrettable that he thus aided the enemy, but he decides his hands were tied—he “really needed the money.” (It is now easy to see how to formulate a comparable version of Arson 2 that involves treason.)
Others understand the difference between intending an effect and merely foreseeing it in precisely this way. See Michael Bratman, Intention, Plans and Practical Reason 141–42 (1999) (arguing that intending an effect entails being committed to it in three ways, while merely foreseeing the effect does not); Allison Hills, Defending Double Effect, 116 Phil. Stud. 133, 134 (2003) (observing that “an agent intends some state of affairs if she is committed to bringing it about,” but “merely foresees it” if there is no such commitment, where “commitment” is understood in essentially the same way I construe it here).
I understand the promotion relation as Schroeder describes it: “X’s doing A promotes p just in case it increases the likelihood of p relative to some baseline. And the baseline, I suggest, is fixed by the status quo.” Mark Schroeder, Slaves of the Passions 113 (2007). Here, the relevant baseline is S’s likelihood of occurring in a case that is exactly like the actual world in which the contemplated additional steps are not taken—i.e., in which one’s action A is performed but the extra steps are not.
See, e.g., Larry Alexander, Culpability, in The Oxford Handbook of Philosophy of Criminal Law (Deigh and Dolinko, eds.) (2011) (“acts are culpable when they manifest insufficient concern for the interests of others”); Larry Alexander and Kimberly Ferzan, Crime and Culpability 67–68 (2009) (arguing that “insufficient concern [is] the essence of culpability”); Nomy Arpaly and Tim Schroeder, In Praise of Desire 170 (one is blameworthy for A “to the extent that A manifests ill will (or moral indifference) through being rationalized by it”); Peter Westen, An Attitudinal Theory of Excuse, 25 L. & Phil. 289, 373–74 (a person is “blameworthy for … conduct that a statute prohibits if he was motivated by an attitude of disrespect for the interests that the statute seeks to protect,” e.g., “malice, contempt, indifference, callousness, or inadvertence”).
See infra note 74 and accompanying text.
The insufficient regard theory is similar in spirit to the theory that an action is culpable to the degree that “it is a product of a faulty mode of recognition or response to reasons for action.” Gideon Yaffe, Attempts 38 (2011). See also Julia Markowitz, Acting for the Right Reasons, 119 Phil. Rev. 201 (2010) (discussing the theory that “my action is morally worthy if and only if my motivating reasons for acting coincide with the reasons morally justifying the action”); Peter Graham, A Sketch of a Theory of Blameworthiness, 88 Phil. & Phenomenological Res. 388, 407 (2014) (arguing that X is blameworthy for ϕ-ing iff the reactive emotions are appropriate towards X, and this, in turn, is true iff “in ϕ-ing, X has violated a moral requirement of respect”).
In general, I don’t think that what matters to culpability is the absolute magnitude of the weight you attach to the reasons against your action. That is, it doesn’t matter how strongly, in absolute terms, you feel motivational pressure against the action in virtue of the facts counting against it. Rather, what matters is how much weight you attach to the reasons against the action as compared with the weight attached to the reasons in favor of it. More on this below.
Note that my claim here is only that one “regards it as true” that R+ > R− iff one does A provided one is rational and does not suffer from execution failure or the like. Still, this does not render my notion of “regarding it as true that R+ > R−” is empty or explanatorily useless. On my view, “regarding it as true that R+ > R−” means “feeling more motivational pressure in favor of A than against it.” But this does not mean the same as “doing A (provided one is rational).” First, these terms clearly have different intensions, since the first concerns one’s motivational processes, while the latter concerns behavior. Moreover, the two terms are not extensionally equivalent either. I can regard it as true that R+ > R− in the sense that I feel more motivational pressure in favor of A than against it, but still fail to do A even though I’m rational. For instance, it’s possible that just as I am about to do A, a mad scientist paralyzes my body. Cognitively, I am exactly as I was before being paralyzed—I remain fully conscious and have all the same mental states. Thus, I’m still rational. The paralysis simply blocks the execution of my intention. Thus, “regarding it as true that R+ > R−” is also not co-extensive with “doing A (provided one is rational).”
Even if the intending/foreseeing distinction does not perfectly line up with the distinction between commitment and its absence, I could still argue that the latter distinction is the one the criminal law should use.
Others endorse the view in 1) and 2), namely that intending an effect involves a commitment to it, while merely foreseeing it does not. See Hills, supra note 54 at 134; Alison Hills, Intentions, Foreseen Consequences and the Doctrine of Double Effect, 133 Phil. Stud. 257, 260 (2007); Bratman, supra note 54 at 140–43 (1999).
Yaffe, supra note 58 at 82–83. See generally id. at 82–90.
Again, Bratman and Hills agree. See supra notes 54 and 62.
Thanks to Jon Quong for pressing me on this objection.
Thanks to an anonymous referee for pressing me on this point.
For example, I might be appropriately motivated to dive into the freezing water to save a drowning child, but as I am about to dive, a prior trauma kicks in and paralyzes me, thus preventing me from acting as I am motivated to do. Accordingly, I would fail to do the right thing even though I am sufficiently repelled by the harm I would cause by not saving the child. Thus, insufficient repulsion is not simply defined as failing to do the right thing.
Alternatively, we might say that in virtue of your commitment to the harm, you would be rationally criticizable for failing to feel any motivational pressure towards promoting the harm. Either claim would do.
Hills and Bratman make similar claims. Hills thinks that intending a state of affairs, S, entails a commitment to S in the sense that one “chooses actions on the basis of their contribution” to bringing about S and “monitors” one’s success at bringing it about. See Hills, supra note 54 at 135–36. It is this claim about monitoring that resembles my claim about being on the lookout for ways to better promote the intended harm. Likewise, Bratman claims that “[i]n the normal case, one [who intends a given effect] is prepared to make adjustments in what one is doing in response to indications of one’s success or failure in promoting” that effect. Bratman, supra note 54 at 141.
As with insufficient repulsion, over-attraction must also be understood comparatively.
As noted, what matters to culpability is how strong the motivational pressure one feels against the action is compared to the motivational pressure one feels in favor of it.
Kenneth Simons, Does Punishment for “Culpable Indifference” Simply Punish for “Bad Character”? Examining the Requisite Connection Between Mens Rea and Actus Reus, 6 Buff. Crim. L. Rev. 219, 233–34 (2002) (emphasis added).
Id. at 232.
Gideon Yaffe defends a version of this principle of lenity in The Point of Mens Rea: The Case of Willful Ignorance (draft). Thomas Aquinas endorses a similar principle: “unless we have evident indications of a person’s wickedness, we ought to deem him good, by interpreting for the best whatever is doubtful about him.” Summa Theologica II–II 60, 4. Aquinas argues that “from the very fact that a man thinks ill of another without sufficient cause, he injures and despises him.” Id. Thus, he concludes, we ought to apply a principle of lenity when attributing blame to actors for their conduct.
Steve Finlay raised the following interesting objection to premise 4). Suppose, in a modified version of Happy Side Effect, Alan would not have started the fire except for the fact that he noticed it would kill specifically Victor, Alan’s sworn enemy, and Alan sees this as a good thing. Although an oversimplification, suppose Alan initially felt 10 units of attraction to lighting the fire (in virtue of the money it would get him), but he also felt 11 units of repulsion to it in virtue of the harm it would cause. But his realization that the fire would kill specifically Victor weakens Alan’s repulsion to the harm from 11 down to only 9 units. Thus, Alan is now able to light the fire and he does. Here, Alan sees Victor’s death as a good thing and it would be genuinely manifested in his conduct (since it is a but-for cause of that conduct), but Alan still would not be committed to Victor’s death to any degree. After all, the fact that the victim is Victor only neutralized some of Alan’s repulsion to the harm. So we seem to have a counterexample to premise 4). After all, even though Alan here is supposedly not committed to the death, it seems he still sees positive reasons in favor of the harm itself. Therefore, he would display the second “strike” associated with intended harm.
Nonetheless, it seems doubtful that normal human psychology allows it to be simultaneously true that consideration of a harm weakens one’s motivational repulsion to it, and that one has no commitment whatsoever to the harm. For this case to be a counterexample to premise 4), three things have to be true: (i) the actor has to merely foresee the harm and not be committed to it; (ii) he has to do the action in part because it will be harmful (after all, his regarding the harm as good needs to be manifested in his conduct); and (iii) he must take there to be positive reasons in favor of the harm itself. But there is tension between (i) and (iii), at least assuming the actor’s psychology is realistic. If an actor saw reasons in favor of the harm itself (here, the fact that the victim is an enemy), and this is manifested in his conduct, then he plausibly would be at least somewhat committed to the harm itself. Commitment, in my sense, involves being inclined to act in ways that make the harm more likely, and being on the lookout for ways to do so. If one really saw reasons in favor of the harm itself, and if this really is sufficient to weaken the repulsion one initially felt towards the harm, then most normal people would also feel some inclination to do things that make the harm more likely and be on the lookout for such harm-promoting steps. That is, they would indeed be at least somewhat committed to the harm. Of course, it might be logically possible to have the sort of psychology that undermines premise 4). But it seems doubtful that normal humans are actually like this. Such a psychology would seem strangely disjointed and compartmentalized.
Thanks to an anonymous reviewer for this objection.
Some empirical work also suggests that our actions are governed by both an attraction mechanism and a distinct aversion mechanism. See, e.g., Charles Carver and Teri White, Behavioral Inhibition, Behavioral Activation and Affective Responses to Impending Reward and Punishment, 67 J. Personality & Soc. Psychol. 319 (1994) (discussing Jeffrey Gray’s influential work on the behavioral activation and inhibition systems).
Thanks to Jon Quong for pressing me on cases of this kind.
Cf. supra note 33.
Bratman raises a similar concern. See Bratman, supra note 54 at 161. Thanks also to Jon Quong for pressing me on this point.
Another question I have not addressed is why the criminal law often declines to single out the purposeful version of some type of misconduct for harsher treatment than the merely knowing version of that conduct. (Tort law, by contrast, collapses this distinction. See Restatement (Second) of Torts § 8A (1965).) Perhaps part of the explanation rests on the assumption that once some threshold of culpability is passed that triggers the harshest penalties the law has available—as is the case with murder—it’s no longer necessary to distinguish purpose from knowledge. Thus, knowingly killing might surpass the threshold of culpability needed to merit the harshest penalties. But then we need to explain why treason, which also can trigger severe penalties, does distinguish purpose from knowledge. Maybe since treason can be committed without anything as bad as killing, only the purposeful version of this misconduct passes the threshold needed to trigger the harshest penalties. However, more work is needed here.
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I would like to thank Steve Finlay, Joe Horton, Andrei Marmor, Jake Ross, Mark Schroeder and especially Jon Quong for extremely helpful comments and conversations about earlier drafts of this paper. I am also grateful to an anonymous reviewer for this journal for valuable feedback.
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Sarch, A. Double Effect and the Criminal Law. Criminal Law, Philosophy 11, 453–479 (2017). https://doi.org/10.1007/s11572-015-9380-3
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DOI: https://doi.org/10.1007/s11572-015-9380-3