Should We Give to Morally Imperfect People?

Posted on December 4, 2020 by tommyraskin

Suppose that we endorse something like this moral principle:

The most moral way to live is to prevent as much suffering as possible. 

This principle is quite demanding, as it means (for example) that spending six dollars on an expensive cup of coffee—when those six dollars could more effectively relieve suffering in the hands of a hunger-fighting charity—necessarily falls short of the moral ideal. Indeed, to live up to the stated principle, we must forgo all expensive drinks—not to mention fancy clothes, extravagant vacations, and big houses—insofar as these luxuries undermine our efforts to prevent as much suffering as possible. 

I leave it to others to provide a robust defense of the stated principle (in the event that it is correct). Mine is simply an attempt to answer one particular criticism of the principle. According to this criticism, the principle is self-defeating, as it advises us to help immoral people. The criticism takes off with this sort of example: suppose that I, moved by the force of the stated principle, decide to give $1000 to a person living right at the level of extreme poverty. If the recipient is himself complying with the principle, then he will take 900 of those $1000 to divide evenly among 9 other people who are living right at the level of extreme poverty. 

In the real world, however, desperately poor people who catch a “lucky break” in the form of $1000 might not redistribute any of their money to other poor people. In other words, they might not live up to the moral ideal propounded by the stated principle. Thus, those who seek to comply with the stated principle (it is alleged) are going to be aiding those who disregard the principle. This disjunction, it is further alleged, means that advocates of the stated principle believe, counterintuitively, that moral people must uplift morally flawed people.

This challenge, though important and provocative, does not effectively dislodge the case for the stated principle. To see that this is so, return to the hypothetical in which I give $1000 to a desperately poor person who keeps the money for himself. At this point, the objection to the stated principle is supposed to be that, in complying with the stated principle, I end up helping a person who—because of his stinginess—is morally flawed. This criticism misses the mark, though. For if I give all $1000 to the morally flawed person, then I am not complying with the stated principle. After all, the principle requires me to minimize suffering as much as possible, and if I give $1000 dollars to one morally flawed desperately poor person (when I could be dividing the $1000 among 10 desperately poor people), then I am not minimizing suffering as much as possible. Thus, this hypothetical cannot possibly be adduced to show that the stated principle instructs those who comply with the principle to help those who do not comply with it. 

Perhaps we can clarify matters thus: suppose that I divide $1000 evenly among 10 desperately poor people. This is what I morally ought to do, seeing as there is no more effective way for that money to prevent suffering. Then, each of the 10 people keeps her $100 for herself, which is what she morally ought to do. I say “what she morally ought to do” because—again—there is no one who needs the money more than she. Thus, if the stated principle is correct, then it is true that, in dividing $1000 among 10 people who need—and keep—the money, I do what I should do and that each recipient does what she should do. There is no contradiction here.

It may now be responded that advocates of the stated principle necessarily (and counterintuitively) condone lending a hand only to (1) those who need the money most or (2) those relatively well-off people who, upon receiving the aid, will themselves redistribute it to those who need it most. But this response gets things wrong as well. The stated principle tells us only what the most moral course of action is. Thus, the principle is entirely compatible with a second principle:

Action A, even if not morally perfect, is more moral than Action B if Action A prevents more suffering than Action B does.

If this second principle is correct, then—assuming that the only alternative is to spend the money on a Christmas sweater for myself—it is advisable for me to give $1000 dollars to a desperately poor person. This donation is morally advisable, we should note, even if the poor person will keep all $1000 for himself. For although I am not preventing the most suffering possible, I am—by giving money to a person much poorer than I am—preventing more suffering than I would be in the alternative.  

All of which is to say that, although “merely” poor aid recipients are (ultra-minimally) morally deficient if they fail to give some of their aid to “super-poor” people, that failure does not make it wrong to give aid to people who are merely poor. Indeed, lending a hand to “merely” poor people is generally highly morally commendable, even if it is not morally perfect. In a world rife with selfishness and unmet needs, we ought to applaud actions that relieve tremendous suffering, no matter if the people suffering are less than saints themselves.

This post originally appeared at C4SS.org.

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Posted in Distributive Justice

Effective Altruists as Anarchist Subversives

Posted on October 27, 2020 by tommyraskin

Most Effective Altruists don’t look like anarchists. The latter have a (charmingly) grungy flavor, the aura of half-dazed rebels perennially stumbling their way out of Woodstock reunions. By contrast, Effective Altruists have the trappings of recent MIT and Tufts graduates, lanky tech nerds and philosophy majors with an incomprehensible infatuation with “Pi Day” and something called “preference utilitarianism.” But Effective Altruism, as a movement inviting us “to do the most good,” contains the seeds of something far more radical than its adherents may suggest. Done right, Effective Altruism can augment the anti-authoritarian coalition that we need to undermine the polygamous marriage of materialism, authoritarian government, and unbridled corporate power. 

Granted, Effective Altruism (henceforth “EA”) does not have its roots in Kropotkin or Goldman. EAs are more likely to take their inspiration from Peter Singer, a utilitarian philosopher who advises his followers to design their professional and personal lives with an eye to maximizing the amount of happiness that they produce in the world. To live morally, says Singer, those of us with money to spare should donate to charities that relieve suffering at the lowest cost possible. While this might sound like a relatively uncontroversial instruction, Singer goes further than most; as he sees it, even our seemingly benign purchase of a coffee this morning was probably morally wrong if the dollars expended to that end could have helped prevent the transmission of malaria in the Global South.

Although Singer’s position may strike us as extreme, his EA followers—often working within existing political and economic structures to address poverty—tend not to come off as fiery agitators. Non-EAs, as a consequence, tend not to view EAs as radicals (with “radicals” here denoting individuals intent on addressing the roots of social problems). But in fact, there is room to interpret EA, in both its actual and its ideal forms, as something quite radical indeed. Understood properly, EAs can be downright anarchistic in the best ways possible: supportive of stateless routes to justice (when the state is derelict in its duty to provide for the vulnerable); hostile to immoral laws; and averse to the perilous hoarding of wealth and the concomitant contempt for poor people that plague our society and world. Building on that radical foundation, EAs could very well become the subversives of authoritarians’ worst nightmares.

EA’s anarchistic patina is laid bare, in the first place, by EAs’ perception of the (American) state as a morally bankrupt institution. In EAs’ eyes, the state prioritizes dubious causes at the expense of meaningful ones. While the poor of the Global South beg for food to avoid going hungry in an era of climate change and pandemics, the United States lavishes assistance on well-heeled military dictators who would do just fine without our help. This an EA cannot abide.

In light of the state’s failure to allocate resources properly, the EA takes matters into her own hands, donating to GiveDirectly and other vetted charities in order to reduce the incidence of hunger, disease, and blindness throughout the world. In so doing, the EA functions in the spirit of radicals past who have rendered services that governments have shown themselves ill-equipped or unwilling to provide. When the EA gives people money for food, for example, she does right by the Black Panthers, the latter of whom, we will recall, started the Free Breakfast Program for children who might have gone hungry otherwise. Like that of the Black Panther, the EA’s activism stems from a well-founded sense that we should never allow government—so often captive to the forces of tribalism, bellicosity, and wealth—to be our sole source of relief in a world rife with suffering. 

Lacking non-anarchists’ knee-jerk reliance on and deference to the state as a vehicle of moral change, the diehard EA necessarily has an equivocal relationship with the law. On the one hand, the EA is prepared to obey those laws—tax laws, for example—that reliably redistribute goods from the comfortable to the needy. On the other hand, the EA is (or should be) prepared to violate laws that impede the promotion of happiness. That is why, as Peter Unger has argued, stealing from the rich to benefit the poor should not be completely off the table (even if “Robin Hooding” is often morally wrong). Refusing to pay taxes for a chaos-inducing war may make sense as well, assuming that any such refusal could actually help grind the war machine to a halt. 

But EA’s anarchist spirit may become clearest in contrast with the ethos of acquisition and poor-bashing that otherwise animates our society. While Donald Trump will unflinchingly admit to an adoring crowd that he does not want poor people occupying economic positions in his presidential cabinet, it is those very poor people from whom EAs take their cues as EAs make their way through the world. Thus, the EA is moved by the multi-million dollar mansions, Maseratis, private jets, and caviar platters of snazzy soirees and high-end magazines only insofar as these fixtures of wealthy living heighten the EA’s resolve to fight for redistribution. When she happens upon a Porsche, the EA thinks not of the owner’s glamour, but of the 3 million children who will die of preventable ailments this year if global elites fail to donate a modest fraction of their fortunes to life-saving social action organizations. 

So affected by the sufferings of the world, the EA donates a significant portion of her own income to charity. In the process, she relieves pressure on other people in the Global North to live as grandly as kings and queens would. By demonstrating that one can be happy while consuming modestly, in other words, the EA dilutes the potency of a culture that places a premium on getting rich and consuming extravagantly. Insofar as that subversion of a wealth-obsessed culture is an authentic anarchist project, EA is indeed moving the anarchist ball forward.

None of this is to say that EA, in its current form, will be quite radical enough for radicals’ taste. To the extent that EAs resignedly treat our neoliberal economic arrangement as an immovable backdrop against which our benevolent acts must forever take place, EAs are insufficiently committed to getting at the roots of the poverty problem. But no matter. With the right sort of prodding and cultivation, EA could very well become a radical force to be reckoned with. For that reason, we ought to give it a chance. 

This piece is also available at C4SS.org.

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Posted in Distributive Justice

The Procreative Gamble

Posted on September 1, 2020 by tommyraskin

A version of this essay is forthcoming in Think, a project of the Royal Institute of Philosophy. For footnotes, please email me at traskin@jd22.law.harvard.edu.

This essay defends the theory of sliding-scale anti-natalism. According to this theory, the moral permissibility of creating a new human life in any given case is a function of (1) the likelihood that the procreative act will benefit the created individual, which is a value derived from (1a) the likelihood that the relevant life will be joyous on balance and (1b) the probable intensity of the joy in that life. The value of this potential benefit must then be discounted by (2) the force of our moral obligation not to risk harming others. 

The essay proceeds as follows. To prove that our general obligation not to harm others entails duties to humans who do not exist yet—and to justify the claim that the commendable act of benefitting people gives us a reason to create happy people—Section I aims to show that individuals can be harmed or benefited by entering existence. Section II explains how the likelihood that a life will be joyous and the probable intensity of the relevant individual’s joy affect the moral permissibility of procreation. Section III explains how the risk of creating a bad life generates a strong moral reason not to procreate. Section IV explains that the preceding variables, operating together, tend to favor the conclusion that procreation is morally suspect. The conclusion follows. 

Is Entering Existence Ever Harmful or Beneficial? 

The formula articulated above suggests that we would harm an individual by forcing her into a bad life. It also suggests that we would benefit an individual by forcing her into a good life. Some readers may object to these parts of the formula by arguing that humans cannot be harmed or benefited by actions taken before the relevant humans exist. I dispute these objections here. 

Perhaps a simple thought experiment is sufficient to clarify the matter of harming those who do not yet exist. Suppose that my snapping my fingers would cause a currently nonexistent person to enter a torturous existence three seconds later. Is it not obvious that snapping my fingers would harm that person? Sure, the person would not exist at the point at which the harm-creating act would occur, but that is irrelevant. One can be harmed by an action that is performed before one exists. 

A few readers may maintain, counterintuitively, that snapping my fingers actually would not be a harm, as the concept of harm is unintelligible if there is nobody around to be harmed when the harmful act occurs. I ask these readers: would it be bad for me to snap my fingers? I doubt that any deny that it would be. If it would be bad, though, then surely it would be bad because my conduct would harm somebody. (Otherwise, what would make my conduct bad?) Thus, we find, again, that snapping my fingers would be a harm to the person being created. 

Perhaps the rebuttal is that conduct can be bad even if it does not harm anyone and that snapping my fingers would fall into this category of conduct. I doubt that any such moral category exists, but suppose that it does exist and that snapping my fingers would fall into this category. It still follows that I have a reason to try to avoid creating unhappy beings. For even if my creating unhappy beings would not harm anyone, it would still be “bad” in some freestanding sense.

Some scholars accept the preceding account of the potential harm of entering existence but deny that anyone can ever benefit from entering existence. But if entering existence can harm the person being created, then surely it can benefit the person being created as well. In the preceding three paragraphs, the force of our intuition that a person could be harmed by entering existence probably stemmed from our sense that nonexistence is a neutral psychological state, such that entering a torturous conscious existence constitutes a harmful “step down” for anyone who enters that existence. If this is correct, though, then it seems that transitioning from the neutral psychological state of nonexistence to a joyous state of happy existence constitutes a beneficial step up for the person who is thrust into a joyous existence. 

None of the objections to this account seems satisfactory. We may be tempted to argue that there is no one to benefit at the moment in which we bring a happy person into existence; however, we already defeated a variation of this argument by showing that an individual need not exist yet in order to be affected in a morally relevant way by others’ actions. We could also argue that the nonexistent do not and cannot benefit from the joys of existence because the nonexistent—being nonexistent—have no preference to experience those joys. But this argument falls flat as well. For if the nonexistent (as we determined above) can be harmed by entering a painful existence even though they lack a preference not to experience suffering, then, by the same token, the nonexistent can benefit from entering a joyous existence even though they lack a preference to experience joy. 

It is possible that I have missed some devastating argument against the position that I have been advancing. But if my account of harming and benefit is correct, then we can proceed with the assumption that humans can benefit from—or be harmed by—entering existence. 

The Goods of Existence

The moral permissibility of creating a new life increases and decreases as (1) the probability of the resulting being’s happiness and (2) the probable intensity of the resulting being’s happiness increase and decrease. The truth of this proposition may be obvious, but if not, then consider this case: a newborn baby has been completely unconscious throughout its short life and is in the doctor’s office awaiting treatment. The doctor has a medicine that has a 90 percent chance of making the baby happy and healthy but a 10 percent chance of making the baby suffer immensely for the rest of its life. Whatever we feel about the morality of the doctor’s giving the child the medicine, surely our intuitions change as the probabilities involved change. If, for example, the medicine is made to have a 99.9 percent chance of giving the baby a good life, then the moral permissibility of administering the medicine increases in our estimation; alternatively, if the medicine is made to have only a 40 percent chance of giving the baby a good life (and a 60 percent chance of giving the child a bad life), then the permissibility of administering the medicine significantly decreases.

There is another way in which our moral assessment of administering the medicine might be affected. Suppose that the medicine has a 90 percent chance of giving the child an on-balance happy life but that this on-balance happy life will be only barely experientially better than the child’s never having entered conscious existence at all. If this is the case, then administering the medicine is less moral than it would be if the medicine had a 90 percent chance of giving the child a life of pure ecstasy. Thus, we find ourselves taking heed of two figurative “dials”: (1) the dial affecting the probability of an on-balance good life, and (2) the dial affecting the intensity of the goodness of the potential on-balance good life.

These are (two of) the dials that ought to guide our thinking in the procreative context as well. Like the administration of medicine to an as yet unconscious baby, the creation of a preexistent human should be judged in part by the odds of the eventual child’s living a good life and the odds that the good life in question will be very good. 

The Duty Not to Risk Harming Others

Our moral reasons to refrain from performing some action become stronger as the odds that the action will harm someone increase. It is morally worse, all else being equal, for me to drive a car with my eyes closed than it is for me to drive with my eyes open. This is because the odds of my injuring somebody increase once I close my eyes. (If, somehow, I acquired the ability to drive completely safely with my eyes closed, then our moral objections to my closing my eyes behind the wheel would probably disappear.)

These considerations should inform our ideas about procreation as well. We should believe that it is morally worse to create a child with a 5 percent chance of living a bad life than it is to create a child with only a 1 percent chance of living a bad life. Again, this is because actions with a higher chance of harming somebody are, all else being equal, morally worse than are actions with a lower chance of harming somebody.

Procreation as a Morally Suspect Behavior

The notion that the preceding variables belong in our moral equation might not be so controversial. Far more controversial is the question of how the variables interact. Though entire books could be (and, indeed, have been) written on the matter, a couple of thoughts here will suffice. First, the fact that procreative risk-taking occurs at the expense of someone else (i.e. the child) strengthens our reasons to forgo procreation. Second, the apparent fact that pain is more intensely bad than joy is intensely good gives us a particularly strong reason to focus on avoiding harm in the procreative context. 

To kick things off, suppose that your making an initial investment of 100 dollars in the stock market would give you a 50 percent chance of making another 100 dollars (leaving you with 200 dollars) and a 50 percent chance of losing your initial investment (leaving you with 0 dollars). Maybe it is unclear whether you ought to make the investment. But now suppose that you were invited to make the investment for (an unaware) somebody else—somebody whose money you would be investing on that somebody’s behalf. Surely, in this case, your moral reasons for not investing would be stronger. This is so because investing the money would involve risking harm to another person—something that you have a prima facie duty to avoid.

Of course, it may be responded that, in certain cases, we also have a strong duty to help other people (which would argue in favor of your investing the money on the person’s behalf). This may be right, but it seems likely that our duty to help others—even on the most altruistic moral account—is not as strong as our duty not to harm them. Generally speaking, I do something worse by stealing 50 dollars from you than I do by not making 50 dollars for you. That being the case, I should generally ensure that I meet my moral obligation not to steal 50 dollars from you even if this means that I must fail to meet my (lesser) obligation to generate an extra 50 dollars for you.

That we have a general duty to avoid harming others does not mean that the correlative duty to avoid risking harm to others is indefeasible. If there were a 99 percent chance that my secretly snatching 1 dollar from your wallet would allow me to turn a 1 million dollar profit on your behalf, then it seems that my taking the 1 dollar from you would be hardly morally objectionable. But then, my using my own dollar would be less morally objectionable still. The decision to gamble at other people’s expense—even if the probabilities involved seem to favor the gamble—always calls for caution. And procreating is gambling at other people’s expense. It is, quite simply, forcing people into conscious existence without any certainty that the created lives will be good. Thus, tremendous caution is warranted before procreating. 

Let us now turn to the second reason to doubt the moral permissibility of procreation: namely, that the possible joys of existence are less intense than are the possible harms. To see that this is so, suppose that the question now is whether we would consent to a gamble in which we would have a 55 percent chance of living a life of the greatest joy possible and a 45 percent chance of living the most hellish life possible. Suppose, too, that the joys and pains would be no more intense than are the joys and pains that humans actually experience—the joys of falling in love, spending time with family, eating good food, and having (protected) sex, for example, and the pains of having one’s eyes gouged out, one’s heart broken, and one’s relatives murdered in front of one. It seems to me clear that none of us would ever consent to this gamble. Indeed, we would probably reject the gamble even if there were only a 20 percent chance of our ending up with the bad life.

The reason that we would not consent to these gambles is not that we are irrationally risk-averse. Instead, it is that we feel—rationally—that the worst pains that humans experience are more intense than are the greatest joys that humans experience. If this asymmetry between the intensity of pains and the intensity of joys does indeed exist, then we have yet another reason to disfavor procreation. Whatever the probability that a given life will be joyous, the intensity of the joys that could possibly be gained by the living person might not be great enough to compensate for the risk of an intensely painful existence. On this understanding, participation in the procreative gamble is like risking a loss of 10 dollars in an effort to win 2 dollars. 

While granting that the intensity of maximum pain is greater than that of maximum pleasure, the pro-natalist may maintain that the odds of living a life of maximum pain are too small to constitute a strong argument against procreation generally. Maybe so; but then, the odds of living a life of maximum joy are too small to constitute a strong argument in favor of procreation generally. If most lives (in the West) exist somewhere between the markers of “on-balance medium suffering” and “on-balance medium joy,” and if medium suffering is safely assumed to be more intense than is medium joy (for the same reason that maximum suffering is safely assumed to be more intense than is maximum joy), then the procreated still have a high chance of incurring a loss weightier in value than the goods that they have a high chance of gaining.

The pro-natalist may at this point argue that the odds of ending up with a life of “on-balance medium joy” are so much greater than the odds of ending up with a life of “on-balance medium suffering” that it makes sense to risk the medium suffering. As an analogy: if my putting down 5 dollars now means that I will have a 1 percent chance of losing the 5 dollars but a 99 percent chance of keeping the 5 dollars and gaining 1 extra dollar, then perhaps I ought to put down the 5 dollars, even though I technically stand to lose more than I stand to gain. In other words, the high odds of gaining a value through the gamble are so great as to help compensate for the paltriness of the value to be gained. 

This, finally, brings us to the crucial question: whether the real-world odds of a child’s living an on-balance good life justify the gamble that we take at her expense. Though intuitions on this point are likely to diverge sharply, a handful of sobering statistics and observations should leave all of us doubting the auspiciousness of the procreative gamble. More than 35 percent of American marriages end in divorce. More than 30 percent of Americans get cancer. Perhaps 4 percent of Americans can be expected in any given year to have “at least one major depressive episode with severe impairment.” 12 percent of Americans are alcoholics. 3.5 percent of American adults suffer from Post-Traumatic Stress Disorder. Data aggregated in 2007 suggest that 1.2 percent of Americans will suffer at some point from anorexia nervosa, 2 percent will suffer from bulimia nervosa, and 5 percent will suffer from binge eating disorder. Those lucky enough to avoid such ailments are more likely than not to suffer at some point from romantic break-ups, the loss of loved ones, frustrated ambitions, status anxiety, the instability borne of climate change, and the horrors of pandemics. All of us, too, are likely to suffer from the realization that our bodies and minds will deteriorate over time, that the opportunities available to us will evaporate as the years go on, and that, eventually, we will die. 

The preceding should show that the odds of creating an on-balance good life are not necessarily large. The pro-natalist may proffer as a rejoinder that most people affected by the issues described above are nonetheless happy to have been born. But the question is not whether most individuals after the fact are glad that their parents took the procreative gamble on behalf of their offspring. It is, instead, whether the information we have before we know whether a child will be happy argues in favor of the procreative gamble. 

By way of illustration, suppose that we have to decide whether to steal 200 dollars from somebody in order to buy a nonrefundable lottery ticket that promises a 60 percent chance of a 300 dollar windfall. Suppose that we then win the lottery and give the 300 dollars to the person from whom we stole. That we were lucky enough to win does not mean that we were justified in taking the gamble in the first place. Indeed, given the weight of the potential losses involved and the considerable odds of losing, we were positively unjustified in taking the gamble. By the same token, the alleged fact that most people now are happy that their parents took the procreative gamble for them does not mean that the parents were justified at the time in taking the procreative gamble or that would-be parents are so justified going forward.

Conclusion

The argument here has been that the morality of procreation increases and decreases in conjunction with the probable value of the life being created. Our moral reasons for procreating are at their zenith in cases where the odds of a good life are high and the odds of a very good life are almost just as high. But because (1) we are taking the procreative gamble for somebody else, (2) the potential harms of existence are immense, and (3) the odds of those harms’ materializing are discomfitingly high even in these instances, we always have weighty reasons to avoid procreating. Whether these reasons make it appropriate to condemn procreation altogether is a matter to explore another time.

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Posted in Population

Reform or Abolition?: Lessons From the Death Penalty

Posted on June 19, 2020 by tommyraskin

A version of this essay originally appeared here.

When confronted with overwhelming evidence of a discriminatory state practice, a decent society responds in one of two ways: by trying to remove discrimination from the practice, or by scrapping the practice altogether. In the context of capital punishment, the Supreme Court has opted for the former course of action. In 1987, the Court in McCleskey v. Kemp expressed its hope and conviction that, even without a wholesale abolition of capital punishment, any troubling racism in executions was destined to end through Court-facilitated adjustments to the ultimate punishment. 

Nearly 35 years later, that conviction has proved unfounded. As we maneuver our way through a political moment pregnant with possibility—in which the foundations of our criminal justice system are under heightened scrutiny, and in which “abolitionists” debate “reformists” about the best path forward—we should be mindful of what the results of our national experiment with the death penalty suggest. As long as it retains tremendous power, the government will be tremendously dangerous. If government officials are in a position to discriminate in life-or-death situations, Americans will continue to die because of discrimination. If our history with the death penalty is any indication, successfully taming the governmental beast cannot mean simply regulating (that is, making regular) the government’s exercise of all of its awesome powers. Instead, it must mean taking many of those powers away from the government outright. 

Efforts on the high court to excise racism from the administration of the death penalty date back to 1963 (at the latest). In Rudolph v. Alabama, Frank Lee Rudolph, a black man in Alabama, petitioned the Supreme Court for review of his death sentence for raping a white woman. Although the Court ultimately declined to hear the case, three (outnumbered) justices argued that executions for rape raise important constitutional questions and that the Court, therefore, had good reason to weigh in. We now know that Justice Arthur Goldberg, who authored this dissenting opinion, was largely concerned about the death penalty’s disproportionate impact on black men convicted of raping white women. It was only at the insistence of Chief Justice Earl Warren—who apparently felt it necessary for the Court to sidestep the charged issue of black crime—that Goldberg did not mention race in his dissent to the denial of review of Rudolph’s case. 

Those seeking to circumscribe the racialized system of capital punishment by ending executions for rape (of grown women) got their victory in 1977, when the Court ruled in Coker v. Georgia that executing people for rape was so disproportionate as to violate the 8th Amendment. Given the sordid history of the death penalty for rape as a mechanism of racial terrorism in the United States, this was a remarkable achievement. Even so, capital punishment (for other crimes) stayed in place, as did the plague of racism that infected it. 

A decade after Coker, the Court addressed the racial issue head-on in McCleskey, where the majority suggested that it was possible to administer the death penalty in a sufficiently race-neutral way. Crucial to the majority opinion was the Court’s “Batson Doctrine,” named for a then-recent case in which the Court made it more difficult for prosecutors to strike potential jurors on racial grounds. The availability of Batson-based relief, the Court suggested, minimized the odds of unfair capital trials, thereby casting doubt on death penalty abolitionists’ contention that the death penalty was irredeemably racist in its application.

As Carol and Jordan Steiker have pointed out, the Court in McCleskey overstated its case. To be sure, Batson has and had made it easier to thwart prosecutorial attempts to strike jurors because of their race. However, the fact that prosecutorial teams can almost effortlessly concoct and claim benign, non-racial reasons for striking potential jurors of color means that many race-based peremptory challenges probably go unpunished. In any event, Batson failed to address other ways that racial prejudice can surface in death penalty cases. For example, Batson did nothing to remove prosecutors’ vast discretion over whether to seek the death penalty in the first place. Insofar as their implicit racial biases affect prosecutors’ assessment of the heinousness of various crimes, the exercise of this discretion can affect who lives and who dies.

The failure of the Court’s efforts to cleanse the death penalty of its racism is apparent in our own time. In 2018, the State of Georgia executed Kenneth Fults after one of the jurors in Fults’s case claimed post-trial that the “n***** got just what should have happened,” no matter if Fults “ever killed anybody.” Similarly shockingly, the African-American Andre Thomas, after he was found guilty of killing his “white estranged wife” and their child, was sentenced to death by exclusively white jurors—three of whom claimed to disfavor interracial romance. (The state’s conduct is even more shocking in light of the fact that Thomas is so mentally ill as to have removed and eaten his own eye.) 

Those who believe that the death penalty has no appreciable race problem may consider these sorts of cases simple aberrations in a system otherwise designed to withstand attempts at racist infiltration. But the reality is that as long as powerful actors exercise (an inevitable) discretion over the death penalty’s application—by deciding whether to seek the death penalty, whether to grant clemency, and how to weigh mitigating factors in defendants’ individual cases—discrimination is likely to rear its ugly head in the penalty’s administration.

The clear lesson for those seeking to address abuses of American state power in other contexts is to eschew the utopianism, either sincere or feigned, that the Court has embraced in its retention of the death penalty. Reasonable people can disagree about the propriety of hard drug laws, the deployment of armed police officers in response to 911 calls, the placement of officers in public schools, and—for that matter—the death penalty. However, those who would embrace an extensive state presence in people’s lives should not be allowed to claim that the mammoth state—through diversity and sensitivity training, for example, or through peremptory challenge reforms—can be made nondiscriminatory. Simply put, efforts to rid a human institution of the apparently ineradicable human vulnerability to prejudice is doomed to failure. The only way to stop the state from abusing its power is to eliminate the power that the state would abuse. 

Jordan and Carol Steiker’s Courting Death: The Supreme Court and Capital Punishment was tremendously helpful in writing this piece.

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Posted in Criminal Justice

Should Effective Altruists Focus More on American Poverty?

Posted on May 28, 2020 by tommyraskin

The conventional wisdom among Effective Altruists is that financially secure Americans should support desperately poor people abroad before trying to help poor Americans. Because the relative poor of the United States are richer than the absolute poor of the Global South, the reasoning goes, donations to the latter go further than donations to the former do. By way of illustration: a $3,500 donation to the Against Malaria Foundation is likely to make a literal life-or-death difference to a poor child overseas, whereas an equivalent donation to a U.S.-focused charity, even in the age of coronavirus, is unlikely to save an American child who would otherwise die. 

It is commendable that American advocates of the global poor are sufficiently dispassionate to frame moral matters in such universalistic terms. As various opponents of national borders have pointed out, one’s birthplace is as random as one’s skin color, meaning that any special concern that we have for our country’s poor (and our simultaneous undervaluation of the needs of poor foreigners) may be no more morally defensible than racists’ disparate levels of concern for impoverished members of different racial groups. But that does not quite settle the matter. Even if EAs are right to view national differences as prima facie moral irrelevancies, the psychological burdens of relative poverty, as well as the realities of American political and social life, may give American EAs good reasons to channel some of their charitable energies towards the American poor. 

In the first place, the scourge of suicide among low-income Americans (and lower rates of suicide among richer Americans) should make us question EAs’ common assumption that several thousand dollars, proffered in the spirit of intranational camaraderie, cannot reliably and significantly extend the life of a needy American. Notwithstanding the fact that they have comforts unavailable to poor people in the Global South, many poor Americans still fall prey to self-destructive despair (especially when they live close to wealthier people). Insofar as that despair is born of a sense of worthlessness and exclusion, economic support may allay their pain by reminding the poor that their projects and ailments matter to others. 

Adherents to the traditional ideas of Effective Altruism may rush to point out that the global poor, because of their absolute poverty, often struggle with suicidal ideation as well. According to this counter, the psychological suffering of the global poor matches that of the suicidal American poor, but the global poor experience the additional suffering of, say, extreme food insecurity. Thus, if we must choose between lending a hand to a suicidal American in relative poverty and lifting up a suicidal foreigner in absolute poverty, we should assist the latter, seeing as that assistance can alleviate psychological as well as physical suffering (whereas our donation to an American can relieve psychological suffering alone). 

It is unclear, however, that suffering works in the way that this response suggests. If two people—one a hungry person overseas, another a reasonably well-fed but unemployed Midwesterner—are both so depressed as to seriously contemplate suicide, is it really obvious that the non-American is suffering more than the American is? It seems just as plausible that they have both reached the “limit” of possible suffering—that the pains of the Midwesterner, because of the psychological toll of relative poverty, are indeed as intense as those of the person abroad. 

Even if we conclude, alternatively, that the most despondent among the global poor suffer more than the most despondent poor Americans do, there is yet another reason—grounded in American political dynamics—for American EAs to focus some of their attention on American poverty. Namely, the prevalence of American nationalist sentiments probably means that American campaigns for domestic poverty relief can make greater inroads than our domestic campaigns against global poverty can.

The unfortunate reality is that, at present, Americans care more about American affairs than they do about foreign affairs. The truth of this point may be self-evident; if not, we can review some of the survey data on the matter. As of last month, not even 1 percent of Americans felt that foreign aid—some of which seems to save lives—is the most important issue with which our country is currently wrestling. Nearly everyone surveyed instead identified some American issue (including coronavirus, almost certainly because of its effect on Americans) as the most pressing. 

In the foreseeable future, this American preference for addressing American problems may render any call for a full-fledged global war on poverty a non-starter. By contrast, calls to help cash-strapped Americans—through political changes or private donations—may very well receive a sympathetic hearing from well-off Americans with an altruistic impulse. So even if the domestic poor need the money less than impoverished foreigners do, the fact that a campaign against domestic poverty can garner more support (in the United States) may mean, ultimately, that EAs can do more good by advocating for the American poor than by campaigning against global poverty. 

To be clear, none of this is meant to condemn American EAs’ efforts to eliminate privation abroad. In a country rife with apathy to the struggles of the foreign poor, such efforts are highly laudable. If successful, this note has merely complicated the suggestion that our charitable expenditures do more good overseas than they do at home. It has also suggested that any thoroughgoing EA, in planning her anti-poverty campaigning, should account for the strong possibility that domestic poverty is more likely than global poverty to ignite Americans’ humanitarian sentiments. That this is the case now, of course, does not mean that we must resign ourselves to the dictates of nationalism forever. We can and should hope that, as we push them to take greater cognizance of the poor in our own society, Americans will come to resist an international economic arrangement in which millions of non-Americans are immiserated as well.

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Posted in Distributive Justice
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