Necessity and Emotion
posted by Sarah Waldeck
A recent article in Newsweek reads like it was pulled straight from a Criminal Law lecture on the necessity doctrine:
Would you drive your boat faster to save the lives of five drowning people knowing that a person in your boat will fall off and drown? Would you fail to give a drug to a terminally ill patient knowing that he will die without it but his organs could be used to save three other patients? Would you suffocate your screaming baby if it would prevent enemy soldiers from finding and killing you both, along with the eight others hiding out with you?
Harvard psychologists are collecting answers to questions like these on the Moral Sense Test, which you can take on-line at moral.wjh.harvard.com. The answers are consistent with what one would expect from 1Ls:
[M]ost people say that it is acceptable to speed up the boat, but iffy to omit care to the patient. Although many people initially respond that it is unthinkable to suffocate the baby, they later often say that it is permissible in that situation.
Why these patterns? Cases 1 and 3 require actions, case 2 the omission of an action. All three cases result in a clear win in terms of lives saved: five, three and nine over one death. In cases 1 and 2, one person is made worse off, whereas in case 3, the baby dies no matter what choice is made. In case 1, the harm to the one arises as a side effect. The goal is to save five, not drop off and drown the one. In case 2, the goal is to end the life of the patient, as he is the means to saving three others.
The interesting part is what psychology is teaching us about why we tend to have similar reactions to the questions posed in the Moral Sense Test:
What is remarkable is that people with different backgrounds, including atheists and those of faith, respond in the same way. Moreover, when asked why they make their decisions, most people are clueless, but confident in their choices. . . . Surprisingly, our emotions do not appear to have much effect on our judgments about right and wrong in these moral dilemmas. A study of individuals with damage to an area of the brain that links decision-making and emotion found that when faced with a series of moral dilemmas, these patients generally made the same moral judgments as most people. This suggests that emotions are not necessary for such judgments.
The Newsweek article also discusses new studies of psychopaths that shed light on the role that emotion has on their actions. At least one conclusion is relevant for formulations of the insanity defense:
New, preliminary studies suggest that clinically diagnosed psychopaths do recognize right from wrong, as evidenced by their responses to moral dilemmas. What is different is their behavior. While all of us can become angry and have violent thoughts, our emotions typically restrain our violent tendencies. In contrast, psychopaths are free of such emotional restraints. They act violently even though they know it is wrong because they are without remorse, guilt or shame.
September 30, 2008 at 1:15 pm
Posted in: Criminal Law
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Responses (5)
Anon - September 30, 2008 at 1:23 pm
Interesting that the only one that seems fairly generally rejected – the idea of not treating a terminally ill patient so we can harvest his organs – is the only one we routinely face in real life and the only one we’ll ever face with any degree of certainty about the life trade offs involved (how would you know someone would fall off the speedboat or the soldiers would hear the baby?)
Zanna - September 30, 2008 at 1:39 pm
is it clear that no. 2 involves omission rather than action? what if we change the hypo: withhold the drugs because 3 others with a milder form of the disease, who would otherwise worsen and die, can be saved, and given the limited supply of the drug, we can either save the 3 or the 1. 100% of test-takers would then say to withhold from the 1 to save the 3. what is really being objected to, I think, is a contemplated action – namely, that of removing organs from the terminally ill patient. that action strikes most as more aggressive and invasive than the action of speeding up the boat. in fact, it’s hard to see that the action/inaction distinction does any work in explaining why test takers object to withholding the medication.
Bruce Boyden - September 30, 2008 at 2:30 pm
I share anon’s concern — these hypos tend to involve implausible assumptions, involving certain knowledge of something that would be not at all certain in real life — and I suspect people answering the questions make mental adjustments to make the hypos more plausible.
Patrick S. O'Donnell - September 30, 2008 at 5:20 pm
Re: the Newsweek article–It’s a good rule of thumb to keep in mind that preliminary studies are just that and their “novelty” does not necessarily speak in their favor (the history of psychiatry should suffice to make this point).
It is long been known that psychopaths suffer from what is called, in the jargon, “flattening of affect.” Moreover, it does not make sense to say, without qualification, that “They act violently even though they know it is wrong *because* they are without remorse, guilt or shame.” Remorse, guilt or shame are after the fact (the violent deed) and thus failure to experience such feelings is testimony to the lack of a moral sense, conscience, and so forth insofar as these three emotional responses would seem to be ineluctably part of the cognitive, volitional and emotional repertoire of a person who is capable of moral action. In other words, a person with a moral sense will invariably experience either remorse, guilt or shame (these are, in important ways, different from each other) upon wrongdoing (either spontaneously, or in conjunction with the admonitions, responses and actions of others). It thus seems conceptually mistaken, or at least from the perspective of moral psychology, incoherent, to attribute a sense of “right and wrong” in the absence of a capacity to experience either remorse, guilt or shame.
Psychoses, from schizophrenia to major mood disorders, refer to conditions that include hallucinations, delusions, pressure of thought, and thought insertion, along with disorganized speech, flattening of affect, and social or occupational dysfunction (American Psychiatric Association). As Grant Gillett notes, “Each of these represents a major departure from the natural and assured patterns of thought and feeling exhibited by normal people such that the key cognitive symptoms have been collectively termed “loss of contact with reality.” Assuming such a breakdown in basic cognition, one wonders about the reliability of the methodology and conclusions drawn from this study. Gillett further points out that “self-reflexive thought” for such individuals is quite elusive, all the more so when we appreciate that the techniques of self-examination that make for self-knowledge are “a little more difficult to master than the ability to make straightforward judgments about external states of affairs, and the judgments are much more loaded with emotive, conative, or evaluative nuances and implications. It is, therefore, understandable that self-knowledge–or the set of abilities gathered under the term ‘insight’–is highly prone to disruption by disorders of thought and judgment. That disruption is exaggerated greatly when the individual is attentionally ‘out of synch’ with others because of internal neurocognitive disfunction or a context of disordered or pathological interpersonal discourse [the meaning of the latter is explained elsewhere by Gillett].”
The loss of contact with reality that afflicts psychotic individuals is said by Gillett to result “from a loss of attunement between the cognitive skills of the psychotic person and those of others [i.e., the rest of us]:
“The relevant skills are built on attentional control and selectivity that can be adjusted and refined in a social context so that the subject captures the same cues and constancies as those around them. Psychosis, it is suggested, is a state in which attention is disrupted; the mechanisms do not function smoothly and do not adjust themselves to track conditions in the world in normal ways.”
Whatever the (probably) myriad causes of such psychoses, these conditions would seem to guarantee a characterization of psychotic experience in terms of isolation and suffering of the sort that attend any lived experience so radically out of tune with others, let alone those near and dear to one.
This would indeed seem to have implications for an insanity defense or be at least germane to “mitigating factors.”
Frank - September 30, 2008 at 5:21 pm
Very interesting questions. I think a bit about the “baby suffocation” question here:
http://www.concurringopinions.com/archives/2008/02/the_epiphenomen.html
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