Send Lawyers, Guns and Philosophers

by Brian on May 5, 2004

While all the epistemologists were safely tucked away in Moscow, Massachusetts tried to slip some unreasonable provisions into its draft death penalty statutes.

One of the major recommendations is raising the bar for a death penalty sentence from the normal legal standard of guilt “beyond a reasonable doubt” to a finding of “no doubt about the defendant’s guilt.” (New York Times)

Normally when you use an unqualified phrase, you can be understood as making a tacitly qualified claim. When I say “There are no students in X’s seminar” I might be saying that there are no enrolled students, or there are no Brown students, or there are no undergraduate students, or some combination of these, depending on the context. (I’ll bracket here philosophical concerns about just how this tacit qualifying works. Suffice to say that everyone thinks that somehow, at some level, it does.)

But when you deliberately omit a qualifying phrase, it is clear you mean to include things that don’t satisfy the qualifier. E.g.

A: Are there any enrolled students in X’s seminar?
B: There are no students in X’s seminar.

In this case, B’s claim clearly means there are no students, enrolled or not enrolled, in X’s seminar. So when Massachusetts deliberately drops the qualifier ‘reasonable’ from the standards, they clearly mean to say that the standard of guilt is that there are no doubts, reasonable or unreasonable, about the defendent’s guilt.

And that’s where the philosophers come in. We may not have many practical uses, but we can come up with unreasonable doubts at the drop of a hat. Are you sure the defendent intentionally killed the victim? Well, are you sure there are such things as intentions at all? Indeed, are you sure that other people exist? Are you sure you’re not a brain in a vat? Or being deceived by an evil demon? On the most plausible young earth creationist story I know, the earth was created as is when I woke up this morning, which would seem to tell against the guilt of all those accused of crimes before today.

If prosecutors have to rule out these unreasonable doubts before getting a capital conviction, I don’t like their chances. The good news is that there are philosophers for hire here. I forsee three kinds of business opportunities.

The first involves being available to be an expert witness to present these unreasonable doubts. Unfortunately I don’t think there will be much money in this, since practically anyone who has taken epistemology 101 could do it, so the marginal wage here might be low.

The second involves being an expert for the prosecution, arguing that we can resolve these doubts. Perhaps we have direct awareness of the external world, and of the guilt of the defendant. Perhaps our words rule out the possibility that the defendent is innocent via some semantic externalist argument or other. Perhaps the brain in a vat hypothesis is too lacking in style to be taken seriously. There are plenty of options here, and there’s certainly an advantage for skilled philosophers in this profession, so the marginal wage might be a little higher.

The third involves coming up with even newer sceptical doubts that are immune to the epistemological strategies of the second kind of philosopher. Here’s I think where the real money could be. Because this job involves not only a certain level of philosophical ability, but also an overly active imagination, an unhealthy disrespect for the philosophical achievements of the last century (particularly in regard to responses to scepticism) and a willingness to get on stage and talk with a straight face about sceptical possibilities so outlandish that even Descartes would have blushed. That’s a rare combination of ‘skills’, if that’s the right word to use, but I think it’s probably a job I can manage. And I’m prepared to work for as little as $500 per hour, plus expenses. Any defence lawyers looking for philosophical hires should leave a note in the comments section.

{ 22 comments }

1

jdw 05.05.04 at 5:00 pm

Is it possible that “no doubt about the defendant’s guilt” could actually be less stringent than “guilty beyond a reasonable doubt”? It seems like “a reasonable doubt” makes reference to something beyond a juror’s personal opinion in a way that “no doubt” doesn’t.

“Yes, I can see how a reasonable person could believe that a one-armed man was responsible for the murder. But I have no doubt Richard Kimble is guilty.”

2

LizardBreath 05.05.04 at 5:54 pm

As a lawyer who occasionally drafts jury instructions, Massachusetts’ change in the standard, while possibly ill-advised, isn’t insane. You’ve misstated the prosecution’s obligation by saying that it has to prove there are no doubts; instead, it has to create a state of mind in the jury such that they have no doubts. From that perspective the effect of the change in standard is pretty clear and not absurd.

Juror A believes “Defendant probably did it, but because the only eyewitness obviously lies a lot, I’m not absolutely sure.” Juror A has a doubt as to the defendant’s guilt, and he has a reason for that doubt. Under either the ‘reasonable doubt’ or the ‘no doubt’ standard, he should acquit.

Juror B believes: “The evidence was totally convincing. The defendant is guilty.” He has no doubt, and should convict under either standard.

Juror C believes: “I’m not completely sure that the defendant did it. The witnesses were convincing — I’m sure they’re not lying — and the physical evidence seems to establish that he’s guilty, but something I can’t pin down still bothers me.” He has an unreasonable doubt — a doubt with no basis in reason. Under a “reasonable doubt” standard, he should convict -because the prosecution doesn’t have to produce absolute certainty in the minds of the jury. Under a “no doubt” standard, he acquits because the state has decided that even an unsupported belief in the possibility of defendant’s innocence is enough to justify not giving the death penalty.

3

bryan 05.05.04 at 6:45 pm

Well some of the doubts you mention are of such a nature that if they were correct it really wouldn’t matter too much if the defendant were executed or just rolled in peanut butter.

4

Andrew Boucher 05.05.04 at 7:34 pm

OK you had your little laugh. But it does make sense that death-penalty convictions require a higher standard. Good for Massachusetts.

5

kellan 05.05.04 at 7:54 pm

I have to say my reading was similar to jdw, this would seem to lower, not raise the bar.

6

Brian Weatherson 05.05.04 at 8:00 pm

Andrew, part of the point is that it really doesn’t make sense to raise the bar, because the bar was already meant to be set as high as it can reasonably be. All this does is acknowledge that our words “beyond reasonable doubt” aren’t doing what they are designed to do, so we’ll design some other words to do what they were originally designed to do. My expectation that we’ll succeed in this task is very low.

7

rea 05.05.04 at 8:33 pm

“part of the point is that it really doesn’t make sense to raise the bar, because the bar was already meant to be set as high as it can reasonably be”

The “no doubt” standard IS like the famous amplifier volume control that goes all the way up to 11 . . .

8

16 05.05.04 at 8:38 pm

“If prosecutors have to rule out these unreasonable doubts before getting a capital conviction, I don’t like their chances.”

If by, ‘I don’t like their chances’ you mean their chances are slim and none; then I like their chances just fine.

But hey, I’m from Wisconsin, we believe in God, Alfie.

9

LizardBreath 05.05.04 at 8:46 pm

because the bar was already meant to be set as high as it can reasonably be.

As I tried to make clear above, but apparently didn’t, the bar is not already meant to be set as high as it can reasonably be. If you listen to judges trying to communicate what ‘beyond a reasonable doubt’ means to a jury, they are very clear that it does not mean absolute certainty (in the subjective sense in which one can be ‘absoutely certain’ of anything). It means something more like ‘having no doubts that you could back up with an argument’. A juror can be plagued by vague doubts and insecurities about whether it’s possible that a defendant might be innocent, but if he can’t back those up with some reason, he’s supposed to convict.

A “no doubt” standard describes a different psychological state in the juror’s mind, a state of absolute certainty of the defendant’s guilt.

You might say that if the juror can’t articulate a reason for his doubts, he shouldn’t have any such doubts, and so the two standards should collapse into each other. As a matter of psychology, I think you’d be wrong: I think it is quite common to find a line of argument or proof somehow unconvincing without being able to show why. The proposed Massachusetts standard would allow a juror to acquit on the basis of such an inchoate, inarticulable doubt; the ‘beyond a reasonable doubt’ standard does not.

10

yami 05.05.04 at 9:19 pm

Hey, let’s not let some crazy “substantive issue” prevent the overmilking of a joke. What happens in a Daubert challenge of an epistemological expert witness? I haven’t the necessary expertise to produce a script of the likely Supreme Court hearing (complete with gratuitously satirical yet devastatingly witty remarks for Scalia) but for law/philosophy types I’m sure it practically writes itself!

11

LizardBreath 05.05.04 at 9:31 pm

Right, and the post was funny.

I’m just humorlessly compulsive about explaining burdens of proof, because in my professional experience they confuse people so much and so unnecessarily.

12

Sebastian Holsclaw 05.05.04 at 10:02 pm

“Is it possible that “no doubt about the defendant’s guilt” could actually be less stringent than “guilty beyond a reasonable doubt”? It seems like “a reasonable doubt” makes reference to something beyond a juror’s personal opinion in a way that “no doubt” doesn’t.”

Nope it couldn’t be less stringent. The reasonable doubt standard is a Constitutional one. States can be more but not less strict than the Constitution allows in this case.

If properly applied I think the reasonable doubt standard is about as high as you can (well reasonably) have. If improperly applied, well the no doubt standard could be improperly applied too.

13

jdw 05.05.04 at 10:17 pm

_Nope it couldn’t be less stringent. The reasonable doubt standard is a Constitutional one. States can be more but not less strict than the Constitution allows in this case._

But we’re only talking about sentencing in a death penalty case, here — anyone sentenced to death is already guilty beyond a reasonable doubt. My point was that it seemed like the standard for putting somebody to death was looser than the standard for convicting them of the crime. Which doesn’t mean anybody would be losing rights, just that the provision is pointless.

14

Decnavda 05.05.04 at 11:17 pm

Brian – This post was a humorous and enjoyable read. BUt interms of concisely making a well reasoned point, your response to Andrew was a thousand times better than the origianl post.

15

IB Bill 05.05.04 at 11:32 pm

As Rea said, the new standard goes to 11. It’s louder.

That is, verbal inflation has purportedly damaged the reasonable doubt standard, and thus a newly worded standard must be created to articulate the old standard. That is, it goes to 11.

Lizardbreath actually rained on the parade a little bit, but I’m glad he/she explained. Reasonable doubt is a doubt you can back up with argument; no doubt means you must be beyond even an inkling.

But as Brian said, philosophically, it’s a mess.

16

Matt Weiner 05.06.04 at 1:02 am

I think a fourth employment for philosophers is to argue that some apparent doubts aren’t really doubts at all. On a cod-Rortyan view, conceivable doubts aren’t enough; a doubt doesn’t count as a doubt until some actual interlocutor brings it up. Applied, that might justify the standard that evidence of innocence that has somehow been kept out of court isn’t evidence at all; which sometimes seems to be the standard at work in death-penalty jurisprudence….

17

T. Gracchus 05.06.04 at 1:25 am

It is doubtful that any philosopher would qualify ass an expert along the lines suggested because it they fail Rule 702. None of the categories plausibly aid the finder of fact in reaching an understanding of a factual issue.

18

derrida derider 05.06.04 at 4:59 am

But it does make sense that death-penalty convictions require a higher standard. – andrew boucher

I’ve never agreed with this argument. Why should we be happy with less certainty before we send someone away for life to rot in a cage with sexually frustrated thugs?
It seems to me that in looking for more certainty for one penalty here we’re really acknowledging that our standards are too low for others.

19

Jonathan Ichikawa 05.06.04 at 4:35 pm

Isn’t there an important difference between (1) a doubt and (2) a possible doubt? Moore and Reid and some other people argued pretty plausibly that sane people don’t *actually* doubt, based on these skeptical scenarios (Descartes even admitted this). So there might still *be* no doubt, even if we can’t prove a justification for certainty.

20

LizardBreath 05.06.04 at 5:20 pm

As a matter of legal practice (or rather, of how I understand what a juror is supposed to do) I believe you’re right, that even where uncertainty could be justified, it is still possible properly to find a defendant guilty beyond a reasonable doubt.

The juror is supposed to inspect her mental state, and discover whether there is in fact a doubt residing within. If there is no such doubt, vote to convict. If there is a doubt, analyze it to see if it is reasonable: if so, acquit, if not convict.

During deliberations, Juror A, who initially voted to acquit, might say in an attempt to convince Juror B, who initially voted to convict: “I have a doubt as to defendant’s guilt, and that doubt is for reason X”. Juror B could properly respond: “I can understand reason X, and I accept that your doubt is therefore reasonable. Nonetheless, X does not create a doubt in my mind, and I still, therefore, have no doubt as to defendant’s guilt, whether reasonable or unreasonable.” Doubt, in this context, is a psychological event rather than a necessary consequence of an argument.

21

Joshua W. Burton 05.06.04 at 5:39 pm

_I’ve never agreed with this argument. Why should we be happy with less certainty before we send someone away for life to rot in a cage with sexually frustrated thugs?_

This brings me (an Illinois resident) back to the great change of heart on the death penalty I had during Governor Ryan’s moratorium a couple of years ago.

For many years I opposed the death penalty on hard fiscal grounds: it seemed a frivolous waste of taxpayer money to spend $6M and up to execute a murderer, if you could lock him up for life for about $1.2M on average. Since most of the cost of execution is in constitutionally protected _habeas corpus_ proceedings after the appeals process, there is no obvious way to cut costs, either.

But this analysis hangs on the unspoken assumption that the system is working. And in Illinois, it turned out that we had executed 12 people since the 1970s, while putting _at least 13 capital-I innocent people on death row_. (The total went up to 17 after Ryan’s review.) In other words, we have a baker’s dozen wrongly accused citizens walking free today who would have been locked up in a cage for the remainder of their natural lives if they had not been sentenced to death. Suddenly, the extravagant legal costs borne by the state in capital cases no longer looked like a luxury at all.

So now, I favor capital punishment with a continuing moratorium. Anyone who is convicted of capital murder (and who elected to fight it, rather than plead out for life without parole) deserves the level of scrutiny that a democracy will demonstrably not fund except when a human life is at stake.

Note that the frank glimpse into how the system really worked between 1970 and 1990 was a one-time lifting of the veil. Never again in our lifetimes will we have defendants who were convicted on false evidence planted with no thought of DNA testing, but later reviewed through such testing. But there is no reason to believe that frame-ups will cease, now that they are again hard to uncover.

22

neddy 05.07.04 at 8:13 pm

I initially read “no doubt” as requiring a confession and acquiescence on the part of the accused. That would raise some issues of state-sponsored suicide, however. I wonder how really pro-death-penalty people would feel if it could only be applied with consent.

Personally, I oppose the death penalty because I disagree that it’s a more severe penalty than life in prison.

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