Sunday, December 16, 2012

The Problem of Evil - Part I(A)

In a post the other day addressing the problem of evil, I took off from a post by Bill Otis at Crime and Consequences.  Bill quoted Mike Moore, "a wonderfully fair-minded, bright and balanced man" who worked on the prosecution of the case describing Jeffrey MacDonald as "pure evil," and then wondered it people like me 
ever take the time to come to terms with what they are really defending. 
My post was the first part of an answer to that particular question.  My theme was uncertainty, that when you get right down to it, we can never really know, and some things necessarily follow.  I quoted the great lawyer Irving Younger from a short article he had in the first issue of the Georgetown Journal of Legal Ethics.
The best of all guides to thinking about anything is Oliver Cromwell's adjuration to the General Assembly of the Church of Scotland, "I beseech you, in the bowels of Christ, think it possible that you may be mistaken." Life and the affairs of the living are so tangled, the world not only stranger than we imagine but stranger than we can imagine, that all questions are conundrums, no answers "correct." Is it certain that parallel lines never meet? No. Does water freeze at thirty-two degrees Fahrenheit? Only probably. Shall I marry? Who can say. 
This morning, Bill (who apparently drops over here whenever I link to his stuff) put up a comment on that post.   
The premise that human beings are fallible is incontestable. The conclusion that we can't ever know if Defendant X did it is absurd. Every practicioner knows that, in the great majority of cases, factual guilt isn't in doubt and isn't even contested.
I started to reply with another comment, but decided to do it this way, instead.

There's no question we can be certain.  There's no question we often are.  Being certain isn't the same as being right.  As a matter of epistemology, there's a gap between our certainty and what may be, factually, true. That theoretical space sometimes even shows up in the real world of criminal law.

The DNA shows it was a mistake.  The confession was false.  The guilty plea was to avoid risk and was a straight plea because the jurisdiction or the court or the prosecutor wouldn't accept an Alford plea.  Overwhelming evidence was there but it wasn't him.  

All those things happen. Some think they happen a lot.  Some think it's incredibly rare.  But they happen.  And although we can argue about the frequency (and nobody will ever really know what the frequency is), one time makes the case.  To pretend it can't happen and doesn't happen is at best disingenuous.

The only real question is what should follow from the possibility of error even in those cases where it seems inconceivable.  

Here's the next paragraph from Younger.
And yet the world's work must be done. One Oblomov is enough. Thus we learn a conventional certitude, acting as though all were light by blinking the shadow. A simple proof demonstrates that parallel lines meet, but, on the assumption that they do not, the architect builds the skyscraper. Despite extensive knowledge of statistical mechanics, the engineer designs the refrigerator to maintain a constant temperature of thirty-one degrees. 'Le coeur a ses raisons que la raison ne connait point,' and families are raised.
We act, we must act, the only sensible way to act is as if some things were in fact true - even if we can't know (and even if we think we do).

Fair enough.  

So we can accept as factually true that Bill's Defendant X did it even if our absolute knowledge that he did is imperfect and might be wrong. There's no rational alternative to that.  And if what X did is criminal, and if some sanction is appropriate, and if it's really awful and the sanction might then fairly be severe, and if it's something that's likely to be repeated and makes the person who did it a danger to the community . . . .

Well, then, yeah.  And if you're one of those folks who believes that eradicating people who've done terrible things is ok.  Not merely separating them, not treating them, not isolating them, but eradicating them.  Not just from our awareness but from our world.  If you believe that execution is morally right and good public policy.  If you believe that killin' is OK when it's our killin' under some sort of legal justification in a system you trust.

But see, for me there's that nagging doubt, that Cromwellian uncertainty.
I beseech you, in the bowels of Christ, think it possible that you may be mistaken.
Maybe not  about the fact.  Maybe just about the response.  Perhaps your moral sense isn't as perfect as you imagine.  Perhaps the cost of breaking a few eggs is too great to justify the omelet.  Or maybe this is the odd case where the moral balance doesn't come out where you might imagine.

This isn't about the numbers, about whether it's better that some number of the guilty go free than that one innocent be convicted or punished.  (Or, in the alternative formulation, it's better that some number of innocents be convicted or punished than that one guilty person goes free.)  It's not about ratios and how sure you have to or ought to be and whether we can quantify reasonable doubt.

Ultimately, of course, Otis is speaking of the death penalty, about which he and I forcefully disagree.  He would inflict it far more than we do.  If would prohibit it in all cases.  He's sufficiently sure that he (we) can tell often enough who deserves killing.  I don't doubt that there are some people who might.  I just don't think we can ever know with sufficient certainty who they are.

And that doesn't begin to address either the underlying morality or policy or practicality of whether we should be doing it. Or what it says about those of us who would.


  1. The uncertainty goes both ways. How do I know that I'm not unleashing wave after wave of evil upon the earth? That the next man I free won't kill someone I care about?

    I think, as a practitioner, to answer the puzzle placed before us by Mr. MacDonald, that we as defense attorneys must embrace chaos. We must not only deal with darkness but be comfortable with its presence. That is the strength we have before the government and the jury. While they rage against it, we stand by, smiling ironically. Our answer to every question is "maybe, maybe not." Not because it's true in every case, but because we know the system is broken, because we know that overall, the innocent do get trampled. That our presence is simply to ensure the appearance of justice, but that as a practical reality, we accomplish far more- we make the juggernaut of power that is the state stand still, and worry. We make it drop a perfectly good attempted murder charge to a misdemeanor assault. We are the keepers of the dark. Because if the dark ever dies, we know it will be because it has been replaced by an all consuming, power-hungry, invidious state that will make our darkness seem like a child's boogeyman when compared with the state's prince of darkness himself.

  2. Mr. Gamso:

    You write a great deal without impeaching a single word in the three sentences of mine you quote. They are: "The premise that human beings are fallible is incontestable. The conclusion that we can't ever know if Defendant X did it is absurd. Every practicioner knows that, in the great majority of cases, factual guilt isn't in doubt and isn't even contested."

    Look, the world consists of real things -- real crime, real criminals and real victims. It's not a philosophy class. The world also consists of tradeoffs. If you refuse ALL executions regardless of the facts, the killer not executed will, in some instances, do it again. This is not speculation; it's fact and you know it. It has happened time and again that incarcerated killers have killed again in jail. Executed killers don't kill again, ever.

    Indeed, the number of persons killed by those who legally could have been sentenced to death but weren't vastly exceeds the number of even arguably innocent people executed in this country for at least 50 years. The upshot is that the death penalty saves more innocent life than it takes. Does that make a difference to you?

    It wouldn't if you believe that the law can never permit the taking of life. But you believe no such thing, and almost nobody else does either (self defense and war are two obvious examples). The only realistic question is IN WHAT CIRCUMSTANCES the law should authorize the taking of life, not whether killing must always be barred.

    No sane person could doubt the guilt of, say, Timmy McVeigh. All the philosophizing in the world isn't going to make him innocent or arguably innocent. The idea that we can't really know anything is preposterous, and I'm sure you don't live your own life thinking that you can't really be sure.

    When you have a McVeigh, you execute. Eighty percent of this great country agreed with that. Perhaps you'll consider the possibility that a person in so outmanned a position should ride a less high horse.

    Bill Otis

    1. Yes, there's a difference between philosophical uncertainty and practical uncertainty. As a matter of physics, the uncertainty principle seems to be correct. We can never fully know. As a matter of epistemology, we might always be wrong. And it's absolutely true that some things virtually every sane person once believed to be true are apparently false. Certainty - even in the face of overwhelming evidence - isn't necessarily the same as accuracy.

      Nevertheless, as Younger said, "the world's work must be done." I suspect there's more to the bombing of the Murrah Federal Building than we've been told or are likely to learn, but you're right that I don't have any doubt that Tim McVeigh was fully involved in setting off the bomb. What then?

      You wrote, "When you have a McVeigh, you execute." But that doesn't follow from guilt, whatever our degree of certainty. It's ultimately a moral judgment about the appropriate response to the determination of guilt.

      If we're going to have a death penalty and use it, then we're going to execute someone who is factually innocent. I think it's happened a number of times. You may believe it's never happened. But the math is that it will, ineluctably. We've caught mistakes in people who were sentenced to die and people who were convicted of crimes but not sentenced to die. (We can argue about the number, but there are some.) We are fallible humans in a fallible system. Someone, sometime, will slip through the cracks. Is that a sufficient reason to never execute anyone? Because it's always at least theoretically possible that the person is factually innocent? Maybe.

      Or maybe it's just that the person isn't irredeemable no matter what the jury and judge and public opinion might say.

      You're right that I'm not a pacifist, and you're right that the correct question that follows is what the circumstances are in which taking a life should be authorized. And here's a tentative answer: When there's no alternative.

      You're argument (and you don't really believe it) is that it's OK to kill 10 convicted killers because 1 or 2 or 3 or 9 of them might kill someone else if we don't. And the one who wouldn't? Collateral damage. The numbers are no more central to your support for executions than they are to my opposition.

      Your underlying point is really what you didn't quite say about McVeigh - he deserves it. Oddly, I'm not sure I disagree in principle. I don't, in any case, doubt that there may be people who deserve killing. I don't think that human beings are capable of distinguishing them from those who don't. And I don't think that any of us is sufficiently pure to be making the decisions or pulling the switches. There may be those who deserve killing, but we don't deserve to kill them. I'm not a Christian, but John 8:7 ("He that is without sin among you, let him first cast a stone at her") speaks powerfully to me.