Thoughts while stealing time

[pecunium]

My father is getting a mineral spa hot soak and massage, so I am using the time to noodle on the web.

Which led to my finding Why we think it better to free the guilty than convict the innocent.pdf, by Humphey Vermont.

I have a real problem with the argument (which is probably getting more play than it might because The Volokh Conspiracy, is touting it. Given that Sasha wrote an article [ten years ago, where does the time fly] for the Pennsylvania University Law Review on the subject n guilty men it's a topic they care about, though it seems to the opposite conclusion) that,"The conclusion is that we over-weight the harm of false conviction".


See, the thing which matters to me isn't punishment, it isn't deterrence, it isn't making the victim's, or their families, feel better; it's justice.

Taking an innocent's liberty, because it makes the system more, "efficient," is a non-starter. Do I value locking up the guilty? Sure, but less than I value seeing the innocent aqcuitted.

Vermont asks, offers examples of things alleged to show biases. On of these is,

Directness of harm is a proxy for these distinctions and likewise accounts for most variation in
the omission bias. When one option is an omission that results in indirect harm and the other
option is an act that results in equally indirect harm, the omission bias is very small. Royzman
and Baron conclude that the omissio n bias is largely an “indirectness bias.” They also find that
a subtle difference in directness is enough to render one option more attractive than the other.

In one experiment, they asked subjects to imagine themselves as public health officials on an
island in the South Pacific. The island is facing an outbreak of a disease that causes death in
children under the age of 12. Many children on the island are already infected and beyond help.
If nothing is done, many more children will become infected and die.
The subjects were given the following options.

· Release special “lethal fumes” into the air. This will kill all of the children
who are already infected, checking any further spread of the disease and
saving the still uninfected children.
· Release special “immunizing fumes” into the air. This will confer
immunity to the disease in all those who are not yet infected. However, the
fumes will kill all of the children who are already infected.

Subjects strongly preferred the option to release “immunizing fumes.” The harm from releasing
“lethal fumes” is regarded as more direct because the harm is part of the act itself, i.e., the harm
is part and parcel of the good outcome."

Given those two choices I am among those choosing the "immunizing fumes" option. Not because I am choosing the passive death of the second, but rather the active protection in the future. In the first option if the disease were to return I would again have to kill a lot of kids, but with the second, such a terrible thing need not be repeated.

He makes the following claim about my thinking,

It is hard to imagine getting rid of the harm and keeping the good outcome. The harm is instrumental
to the good outcome. In contrast, in the “immunizing fumes” option the harm is incidental to the
good outcome. The act (releasing fumes) has two effects: the good outcome (checking spread of
disease) and the harmful side effect (killing infected children). We can easily imagine getting rid
of the harm and keeping the good outcome. Even though the scenario does not allow it, the
ability to imagine it appears to render the indirect option more attractive.

Which is not the case, if I had the choices given (no way to avoid the deaths, in this instance, of the infected, I'll take the second, because it is affirmative for the future. As such it is best choice, not merely the one with the better phrasing of options.

He extrapolates (or infers the societal moral calculus, as he doesn't speak for me in this regard), "
We do not regard all strictly relevant actors as morally relevant. An execution, for instance, is an act that
causes direct harm. But each execution prevents as many as (let’s assume) 18 acts of murder and
each of those murders would cause as much direct harm as one execution. If omission bias and
preference for indirect harm were based solely on desire to minimize the overall amount of direct
harm caused by acts – regardless of who the actor is or from whose act the harm is direct –
omission bias and preference for indirect harm would militate in favor of capital punishment.
Instead, in this and other criminal justice scenarios, the omission bias and preference for indirect
harm operate mainly with respect to harmful acts of government as opposed to the harmful acts
of anonymous laypersons. (he uses a reference to a study citing that 18 prevented figure elsewhere [cite Shepherd and others.] and so presumes to make it seem more factual, without more than this reference to "Shepard and others).

By extension, what it all amounts to is saying we don't need to worry about convicting the innocent, because the harms of acquitting the accused are dead equal, and punishment is better than justice.

He goes on to say (and he is correct) the odds are greater for a false acquittal than a false conviction, which changes not at all the idea that a false conviction is unjust, and (see "n guilty men") that it is better to let "x" guilty men go free than to convict a single innocent.

To argue otherwise is unjust, which he does, in a left-handed way in the last footnote, "More generally, the good reasons do not seem to justify the strength of the burden of proof in western countries today. See generally Samson Vermont, The Value of Accuracy Revisited (working paper)

Peter asked Jesus, how many times he should forgive one who sins against one, Jesus answer was seventy times seven", and I think a high burden of proof is probably a decent approximation of that level of mercy.

Comments

[patgreene.livejournal.com]

I will return to read this more later -- both the paper and your post. I did want to point out one logical error he made: in one of his early footnotes, he indicates that the preponderance of articles which talk about underfunding of defense council against articles which talk aboutn underfunding of prosecutors indicates that we are simply more concerned with whether defense lawyers get funding. He ignores the possibility that prosecutors are in fact adequately funded and staffed in most jurisdictions -- at least much much better funded and staffed than the public defenders.

[pecunium.livejournal.com]

I meant to get to that, but there was only so much I felt like doing, and an interlineal refutation of all the suppositions and straw manm arguments was more than I wanted to do, or most wanted to read.

TK

[patgreene.livejournal.com]

Also, where the HELL does he get this "each execution prevents 18 acts of murder"? That's a hell of an assumption to make, even for a hypothetical moral exercise, as studies have repeatedly shown that the general deterrence value of executing people is zilch.

There was a representative from Florida who a couple of years ago said that we had reached a point that it was inevitable that an innocent man would be executed. He was okay with that, although it saddened him.

What have we become?

[pecunium.livejournal.com]

It's a common trope among the advocate of capital punishment that it does deter murder.

I have seen the 18 number before. The reference I gave is the summa of his footnote. No date, title, journal or other reference; which makes it one step above mere assertion.

He presumes (or hopes) that the act of attaching a footnote, and it being in a scholarly publication, wrapped in a modifier, and repeated, will be taken as fact. If you look at the rest of the footnoting it isn't quite the normal mode of legal writing footnotes. This may be because he isn't citing cases, precedents or law review articles. Most of the footnotes he uses are large. He has more than a couple of pages with a couple of lines of text, and all rest covered in footnotes carrying over.

Perhaps he hopes people will get lost in the apparent stregnth of the others and ignore the flimsy nature of that one.

A common trick.

TK

[kibbles.livejournal.com]

I will never forget the hell we went through when my husband was wrongfully arrested for an assault, that was originally a felony then down to a misdemeanor.

It took years for them to drop the charges, it made a huge mess of our finances and put an unbelievable strain on our relationship.

And this was for 'just a misdemeanor'. I can't imagine the hell people go through when innocent of something worse.

And meanwhile the real criminals are still out there when an innocent is convicted, and the victim isn't getting true justice. Sucks. Sucks sucks sucks.

[dhole.livejournal.com]

On the "lethal fumes" v. "immunizing fumes" thing, it seems to me that the people designing the question actually wanted to ask something more along the lines of the following:

1) Are you too stupid to tell the difference between the same thing phrased two different ways?
(a)Yes (b)No
2) Are your stupid responses stupid in a way that proves what we believe about people?
(a)Yes (b)No

And they didn't really want to hear anything except for (a), (a). I can't actually say this with full confidence without seeing the original article, and I'm not sufficiently interested to go chasing down back issues of the Journal of Experimental Social Psychology, but as it's quoted, the questions they ask didn't actually ask that question.

What they probably meant was that this disease was confined to this particular island, and thus, there weren't going to be any further outbreaks for vaccination to protect against. But if they had put in enough caveats and reasons why there's no reason to prefer one choice over the other, people might not have answered in the way they wanted them to.

In general, a lot of these questions are artificially flattened into binary choices, and the fact that respondants gave the answers they did could well be a reaction to that artificial flattening.

"Most experimental subjects claim for example that they would not vaccinate children if the vaccine would cause fatalities, unless the vaccine would save at least around twice as many children as it would kill", for instance.

It seems to me that part of the reason why people are rejecting the idea of administering the vaccine is that they don't see a vaccine that kills nine children for every ten it kills to be an acceptible response to a disease. There are other responses that could be made, other actions that can be taken to slow or halt the spread of a disease, and rejecting the vaccine could well be a shorthand for wanting to see those other options. I realize that's not what people said when asked to explain their reasoning, at least according to the footnote, but I don't see that as solid evidence against my thesis -- people will push back even if they don't realize that they're being pushed.

[cakmpls.livejournal.com]

See, the thing which matters to me isn't punishment, it isn't deterrence, it isn't making the victim's, or their families, feel better; it's justice.

Taking an innocent's liberty, because it makes the system more, "efficient," is a non-starter. Do I value locking up the guilty? Sure, but less than I value seeing the innocent aqcuitted.

My viewpoint exactly. I once asked someone who argued for the other side in this question whether he would be willing for his son to be the one innocent convicted to assure that ten guilty would not go free. He answered, "Yes." Now that's scary.

As for the question about two kinds of fumes, don't the two choices have a bit of a familiar ring in terms of the Catholic teaching on "unintended consequences"?

[pecunium.livejournal.com]

There are a lot of problems with the question about the fumes. As dhole said the study from which the question is taken isn't really discussed, and we don't know all the contexts of the problem.

I can, actually, accept the guy who said he'd accept his son as the sacrificial lamb pour encourager les autres (though the proof of the pudding is in the eating, and until his son is charged [we shan't even discuss convicted] we can't know how he really feels).

I figure, for example, that it's perfectly fair for other soldiers to try and kill me, since I am doing the same.

What bothers me is when those who are immune to such fears (that they or those they love will be on the block) espouse such things.

I had a student once, a sherrif's deputy, who said, "You have to lock up some innnocent people because so many guilty ones go free." He also thought personal whim ought to qualify as reasonable cause for searches.

He scared me.

He did, you may be pleased to know, fail to pass the course (basic interrogation).

TK

[cakmpls.livejournal.com]

I have no quarrel with anyone saying, "I would be willing to be the convicted innocent if it would ensure that ten guilty would not go free." (I don't think their choice is the best one for society, but it's still their right.) I have a lot of trouble with someone offering up someone else to be, as you say, the sacrificial lamb.

Your student scares me, too. My brother is a sheriff's deputy, and an evangelical Christian, and still has managed to stay politically liberal. Some of his colleagues scare him.

[pecunium.livejournal.com]

Well, the case you proffered was someone answering a challenge you issued.

TK

[cakmpls.livejournal.com]

How does it make a difference whether he said on his own, "I would accept my son's being convicted through innocent if it would prevent ten guilty from going free" and his answering my question by saying, "Yes, I would accept my son's being convicted through innocent if it would prevent ten guilty from going free"?

[pecunium.livejournal.com]

Because you offered him the choice of sacrificing his son. You could have offered him the chance to sacrifice himself.

He accepts that some innocents may have to suffer. If he is honest, there isn't a difference between himself, his son, you, or any other innocent.

You can't condemn him because he applied his values to the limited set you offered and you don't like the answer he gave to that limited set.

If one is to give him the benefit of the doubt, he gave an honest answer and would, were it rephrased, be willing to put himself in the clink, not merely for the saving of his son (which many will claim) but for the common good.

TK

[cakmpls.livejournal.com]

Nowhere did I condemn him. I said I found his response scary. I always find it scary when people are willing to sacrifice others' lives or freedom, no matter what those others might believe or want, in their own cause.

[lyorn.livejournal.com]

My viewpoint exactly. I once asked someone who argued for the other side in this question whether he would be willing for his son to be the one innocent convicted to assure that ten guilty would not go free.

Did you construct the case in detail?

Because it seems to be a rather strange case, which could, of course, be constructed for its drama value. However, it seems to me that the more obvious (and likely) result of convicting one innocent person is having one guilty person go free. Which might provide comfort to the victims by making it more likely that they are going to have company.

But if we have to get into hypotheticals: If you (generic "you") allow prosecutors the shortcut of convicting an innocent person instead of a guilty one who, we assume, might be harder to catch or convict, because, forewarned, he has hidden his tracks, constructed a better alibi, or left the country -- did you truly make it less likely that they'll cut the same corners the next ten times?

And I'd better not get started on this plague scenario, which dhole has well summarized.

[cakmpls.livejournal.com]

We were discussing the maxim that "It is better that ten guilty escape than one innocent suffer," usually attributed to William Blackstone. I agreed with it and he disagreed. So I asked him whether he would be willing for himself, his wife, or his son to be the one innocent who suffered in order that ten guilty would not escape, and he said "Yes" to all three.

[pecunium.livejournal.com]

Then he showed an admirable (if misplaced) intellectual integrity.

TK

[cakmpls.livejournal.com]

I suppose so. It depends, IMHO, on what his other beliefs were regarding people's offering up others' lives, or freedom, to support their own beliefs/goals/values. If, for example, he did not believe that other people had the right to decide that he should be a suffering innocent to achieve the others' ends, then he was a hypocrite.

[lyorn.livejournal.com]

We were discussing the maxim that "It is better that ten guilty escape than one innocent suffer," usually attributed to William Blackstone.

Mhm. It felt like a classic. Still, I'm distrustful of scenarios which lack details. While they provide useful material for debate, they tend to beg a lot of questions, and are commonly mis-applied to real-life situations.

[pecunium.livejournal.com]

But this isn't a scenario.

It's a precept; on a par with innocent until proven guilty, or that the burden of proof is to make a jury believe, "beyond a reasonable doubt," or, "never to be put in danger of loss of life nor liberty twice for the same offense."

It's a principle.

The test of such is how we deal with the precepts when they face the cold hard light of day. At present we are failing.

TK

[pecunium.livejournal.com]

I have seen this aspect of the argument too.

If the innocent is convicted the guilty is free, so both harms are visited.

Those who ascribe to Vermont's thesis disagree. They (or at least a significant number, in my experience) are interested in the outward forms of justice, and so the conviction of a person for a crime is seen as a greater good.

It shows, you see, that society is being protected, because all crimes are punished. This is, if you ask me, an evil mindset, because it stops being about justice, it even stops being about punishment, and becomes a bit of kabuki. Having a conviction becomes the be-all and end-all.

TK

You do realize you just embraced the worst of communism?

[bellatrys.livejournal.com]

Slaughter innocents today to bring the blessings of good life to future generations. What's the difference between you and Mao? You're you? You're American, and that makes it okay?

CS Lewis, in "The World's Last Night," an essay I can find very little if anything to take exception to (anomalously), asks in turn, what value would your sacrificing killing real, living children to protect hypothetical future children have, and what moral justification for your deed, if objectively it were the case that The Asteroid was heading for us and there would be no future generations? All your consequentialism is rendered meaningless.

But then, this is simply turning consequentialism and relativism back on itself. The real problem, to my thinking, is that this argument, killing a few diseased children to protect the healthy rest, is absolutely no different from that which certain civilized Volks thought their duty, to remove from the population certain small diseased segments of humanity, to protect the rest from the contamination of Untermenschen genes and culture...

But they were wrong! you say. So you say. But plenty still today would argue that you have been driven mad by such contamination already. And what if a better, wiser doctor were to show after the fact that, far from repeating itself, the disease in fact upon more thorough study simply breeds immunity? What would all your sorrow and real, if specious, remorse accomplish, or be worth, at that point?

I certainly hope your "morality" is never put in charge of the world's population's fate.

Re: You do realize you just embraced the worst of communism?

[pecunium.livejournal.com]

Is this addressed to me?

Because if it is, it misses the mark.

Given a trio of choices, which is what the hypothetical posed does (1: let the disease; contagious, and fatal to all who contract it [the use of children in the example given is an emotional red-herring meant to make the choice seem more poignant... or perhaps as phrased it was meant to place the decider out of personal harm and so change the calculous, not having access to the study I can't say, but the former seems more likely to me] run its various courses. 2: treat it with one of two methods, neither of which saves anyone presently infected; one of which prevents all the presently non-infected from getting it in the event of recurrunce.

If I am limited to those three choices there is no question which I am going to do.

The question is false, and falsely constrained. There is also the subtle difference of this problem not being limited to one subset of the population. It isn't just Jews who are sick (or homosexuals or gyspies, or, or, or) but rather a neutral; as presented, cross-section of all the people.

You may hope all you like, but the facts are that, given a choice of the least of three evils, and no way to avoid choosing one, I will, every time, take the least.

If you think it better to risk the death of all, to not save some who will die regardless (because that was the question posed) because that makes you feel better because you have kept active blodd from your hands, well we disasgree.

The disease, as given has a 100 percent mortality. There is, as given, no way to save the infected. The question was which of the two ways available is to be preferred. You castigate me, nay condemn, because I didn't offer a Kobayashi Maru solution and rewrite the question.

I don't know what I might do if faced with something like an ebola (90 percent mortality) were runnig pandemic. Probably advocate quarantine.

But that wasn't the question asked, so it wasn't an available option in context.

TK

Re: You do realize you just embraced the worst of communism?

[lyorn.livejournal.com]

(Second try. First went out anonymously when I thought I was logged in. I have meditated too long on the stupidity of the plague scenario -- it seems to be contagious.)

Slaughter innocents today to bring the blessings of good life to future generations.

It says a lot about the people who constructed the test scenario. So far I had mostly seen it as mind-boggling stupid (you have an airborne vaccination life-saving for some but lethal to others and can't find a way to expose selectively? WTF?) but one could probably also see it as simply callous or plain evil.

Re: You do realize you just embraced the worst of communism?

[pecunium.livejournal.com]

The hypothetical is ill constructed. Meant, it seems, to test a very specific question, which; for purposes of study, needed to be that way.

The question (in my mind) which would answer the relevance of the information sought was how man, different, sets of questions with similar shades of perceived harm.

Here are the structures of the hypothetical, broken down.

A disease is running it's course.

It is 100 percent lethal those who contract it.

The group capable of contracting it is restricted by age.

It is contagious.

A vaccine exists, but it can't save those who are infected; rather it kills them immediately.

+++++

So far so good. Given that set you quarantine everyone. Now comes the hard part. If it were me, well those who were obviously infected... do nothing. Treat the symptoms and hope some recover.

The rest, the asymptomatic, if they've been exposed and they get the vaccine, they have no hope. If they've not they get protected. How to choose, what's the calculus. The factors in play (rate of contagion, legnth of time from infection to transmissibility, level of contagion [AIDS isn't trivially contagious, so this problem; though some have so argued, doesn't arise, not even to the level of needing quarantine] speed of progress, &c., &c, &c.) would have to be looked at.

But the world of such surveys is clean. The dirty details get left out in the search for whatever Truth is being sought. I should like to think the entire study this was lifted from was better built than this piece implies, and that it was lifted out of context, and thus bent to serve the ill-intent of this author, but I suspect it was just this shoddy from front to back.

TK