When Absolutism Must Prevail: “Choice Of Evils”

“Choice of Evils,” taken from the utilitarian philospher Jeremy Bentham’s (1748-1832)  famous quote above, is an ethically rich “Law and Order” episode from 2006 that I recent watched again. Assistant DA Jack McCoy decides to prosecute a mother for murder after she admits to shooting her homeless, psychopath son. Her defense: she did it to protect the community, or, in cruder terms, he needed killing. She had met his girlfriend who was pregnant,  and told her that her son would eventually kill her and the baby if she didn’t get away.

The mother explained that her first husband and the dead man’s father is in prison for murder, and like his son. lacked empathy or a conscience. She related how her son displayed all the traits of a psychopath growing up, such as torturing and killing animals. In sympathy for her plight, McCoy offered the mother a manslaughter plea and short prison time, but she turned the deal down, adamant that she hd done nothing wrong.  She was then charged with second-degree murder (that’s also generous, since the killing was premeditated), and the trial began.

The problem of how to deal with “bad seeds” is a  societal dilemma of long standing, and one without a satisfactory solution. It is easy to sympathize with the mother’s plight, but a society that approves of preemptive executions when an individual  seems likely to harm someone before he or she actually does is on a fast track to chaos; it’s not even a slippery slope. Once again, the seductive appeal of pre-crime measures has to be resisted decisively, or individual rights and justice mean nothing.

Does society have to wait until a loudly ticking time bomb goes off? If it’s a human time bomb, absolutely, and no exceptions. Sometimes, that metaphorical bomb turns out to be a dud, and every human being has the same right to be judged on the harm, if any, he or she actually does rather than the harm some feel they are certain to do.

In the episode, it is discovered mid-trial that the son had in fact murdered a man, which his mother did not know at the time she murdered him. McCoy argued to the judge that this was irrelevant to the case and likely to mislead the jury. He was correct. The mother’s act was exactly as illegal and intolerable whether her son was a likely killer or a proven one. The discovered homicide is an example of moral luck: it changes how the mother’s act is perceived, but doesn’t change the ethical analysis at all.

In the end, the jury votes guilty, and sends the mother to prison for 25 years. This is because she admits on the stand that her current husband had threatened to leave her if her son moved back into their home, which he announced he would soon do. Thus the preemptive murder began to look less like an altruistic act to spare society, and more like one for the mother’s personal benefit.

Again, it shouldn’t have mattered. Killing a human being based on probabilities and presumed future harm to society can never be deemed just or tolerable.

Never.

6 thoughts on “When Absolutism Must Prevail: “Choice Of Evils”

  1. The crucial element in utlitarianism is that to assess whether one achieves a net positive value, only that person who bears the costs as well as reaping a portion of the benefits is in a position to make such determinations.

    The notion that decisions that lead to the greatest benefit for the most people are optimal is faulty as every decision involves an opportunity cost, or imposes costs on others. For example, if we choose to execute a murderer the benefits to the community are SUBJECTIVELY estimated to be high versus the RELATIVELY low cost of execution. However, when you leave out the cost the accused must pay you have artificially lowered the true social costs of the decision.

    At best we can only arrive at politically popular choices. As such, life and death decisions, and those restricticting liberty must be absolute to the degree the person who will be forced to sacrifice utility must be given all reasonable opportunities to defend themselves or avoid the imposition of costs before any judgement can be rendered.

  2. In the episode, it is discovered mid-trial that the son had in fact murdered a man, which his mother did not know at the time she murdered him. McCoy argued to the judge that this was irrelevant to the case and likely to mislead the jury. He was correct

    This is similar in principle to a drunk driver who happens to run over a wanted serial rapist fleeing the scene of his latest crime.

    Although if you were the drunk driver’s lawyer, you would do your best to put the rapist on trial.

    At best we can only arrive at politically popular choices. As such, life and death decisions, and those restricticting liberty must be absolute to the degree the person who will be forced to sacrifice utility must be given all reasonable opportunities to defend themselves or avoid the imposition of costs before any judgement can be rendered.

    How does this apply to red flag laws?

    • The way I see it is that Red Flag laws fail to consider the value of liberty lost of the accused therefore you cannot argue for the greater good.

      Red Flag laws must be argued for what they are, punishment for what others think you might do. Therefore, we are all subject to mob dictates. Salem witch trials anyone?

      If we argue tha it may be possible to create a method in which a person is adjuducated by reason of mental instability with full due process of law that they may not lawfully purchase a firearm even that has problems because we punish for a pre crime or choose to treat mental illness as a social evil. Neither of which is acceptable

  3. Had I been born two years earlier I would have been probably institutionalized early on. High-functioning autism was not understood and Asperger’s was not even a diagnosis when I was a kid. A change in the law prevented me from being simply shipped off to some warehouse for the mentally ill. I hadn’t done any harm, but I just didn’t fit in and couldn’t conform, and the thought was that those who had these kind of problems should be put somewhere where neurotypical people wouldn’t have to see them and they wouldn’t be a danger to themselves or others. I can only half blame the educational authorities. When someone has persistent trouble following the rules and seems to be a magnet for trouble, the thought might easily be “let’s get him out of here before something really bad happens.”

    In fact there were episodes of Law and Order which dealt with both problem kids and people on the spectrum. The 1999 episode “Killerz,” based on the killing of James Bulger, gave us a 10 year old nascent serial killer who the authorities were basically powerless to touch, despite the fact she’d killed one other child. There’s another episode I can’t search up right now in which a kid who’s on the spectrum keeps coming close to doing something crazy, but never enough to get him held or jailed.

    Increasingly there is a view that individuals who are maladjusted, awkward, problematic, or who otherwise make normal folks uncomfortable are all potential criminals of some kind. The guy who spends too much time on the computer is a potential hacker, the guy who just can’t land a date is a potential rapist, the guy with too active an imagination is a potential serial killer. For all we know, the guy who spends too much time on the computer may be designing the next big software thing, the guy who just can’t land a date is just going to be one of those guys who lives single except for a pet, and the guy with the active imagination might just be the next George R.R. Martin. However, regular folks aren’t comfortable with any of this. The expectation is that eventually you turn off the computer and get out in the world. The expectation is that you date, eventually find a steady gf, and settle down. The expectation is that you eventually calm that imagination and keep your mind on keeping the bills paid and moving your kids from activity to activity. If you don’t conform, it makes those who do concerned.

    In the past, the norm was to say something along the lines of “your concern is noted, but, until this person actually does something wrong, we can’t move against him.” At this point there is an emerging trend to empower mere concern, the thought being that way we can avoid many terrible things if we move sooner rather than later. Mass shootings move us further in that direction every time.

  4. Your last paragraph exemplifies my statement that the benefits acrue to those who do not share the initial cost.

    I submit that institutionalizing people who have done no wrong is as terrible a thing to avoid as is a mass shooting.

    Living is more than a heartbeat and brain activitity. Would you rather be dead or confined against your will for life and told what to do, when to do it, what to eat etc. I would wish for neither but death would be preferred.

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