Wrongful Death
By Alec Rawls © 1997/1998. (1300 words) Originally published in The Thinker, 10/31/97.

Students who think that terminating an unwanted baby is no big deal are getting a wake up call in Delaware where prosecutors are pursuing the death penalty against two teenagers (Brian Peterson, 18, and Amy Gorssberg, 18) for allegedly killing their unwanted newborn baby. This case involves all the subtleties of law necessary to square the logic of the abortion and death penalty issues. Mr. Knowitall will explain.

The death penalty is a necessary remedy. No one owes larger debts to society than those criminals who have committed such crimes that we cannot let them back into society. It is perverse to support them at public expense to the tune of a million dollars a head. As for rehabilitation, there is no worse place to devote scarce public monies than to these least propitious of all students. Fast, cheap execution of the worst criminals is an obvious imperative.

Ineluctable as this logic is, it only applies to the most predatory or heinous criminality. It must be justified by some combination of the need to protect society from revealed predators and the need to avenge a particular criminal act: deterrence and punishment. In the case of infanticide to dispose of an unwanted child, neither of these grounds rises to nearly the level needed to justify the death penalty.

As abortion protesters have correctly pointed out for years, there is no clear distinction between abortion and infanticide. Throughout world history, many cultures have employed infanticide as a last resort for controlling family size when abortion and birth control have not been available. Modernity has given people options that earlier generations lacked, but the primitive considerations are still relevant.

The United States Supreme Court, in Roe v. Wade, used the viability of a fetus outside of womb to determine at what point the states interest in protecting the life of a fetus could possibly begin to outweigh the liberty interests of a pregnant woman. If the woman is afforded no sphere of choice then her liberty interests are entirely overriden. Also, the unborn's claim to person-hood is weakest in the embryonic stage. Thus the court held that the woman's interests should hold sway for the first trimester of pregnancy. On the other hand, when the fetus has developed enough to possibly be able to live outside of the womb, its claims to person-hood are substantial while the burden on the woman of completing the pregnancy reduces day by day. In an abstract sense, her burden might even be relieved once the fetus is viable outside of the womb, and so the Court allowed that beyond this point the interests of the fetus could be held superior and laws against late term abortions could be acceptable.

But if a fetus' ability to live on its own is a critical juncture for balancing the rights of mother and child, it is also an elusive one, and not just in the womb. A newborn itself is far from viable on its own, but requires vast amounts of nurturing. Where society does not offer to nurture unwanted children for their parents, the viability of an infant after birth still very much depends on parental sacrifice. The potential conflict of interests is very similar to the case of abortion.

The parents' case for choice in these cases is very strong. Parents may have to weigh the life of the infant against their ability to provide for their other children, or against the lives of those children they had planned to have in the future, at a time when they would be ready to provide for them. These are questions that pit life against life, so that considerations of similar magnitude appear on both sides of the decision to be made. This insures that the grounds for asserting a social interest in the parents' choice cannot reach the highest levels. Indeed, if society itself cannot offer to take the baby, the moral superiority of government over parental choice in whether the infant should live is very much in question. To make infanticide a death penalty crime in this case would be the grossest disproportion.

The situation changes drastically when others in society are willling to take the infant. Then the parents do not face a decision between equally weighty concerns on each side. Life for this new baby need not compromise the viability of their other children or sacrifice children that were planned in the future. Infanticide when adoption is available can be determined to be a great wrong. Still, there are limits on how differently the situation can be treated just because adoption is available.

Moral theory makes a distinction between natural and artificial virtue. Natural virtue refers doing things that are right (and avoiding things that are wrong) in themselves. Artificial virtue refers to doing what is right or wrong given the particular social institutions one happens to live amidst. For example, driving on the left side of the street is not wrong in itself, it is just wrong if you happen to be in the United States. Since infanticide can only be supposed to be a great wrong when adoption is available, that means it can only be a great artificial wrong (since the magnitude of the wrong depends on the institutional environment).

A similar distinction is made in law between things that are wrong in themselves (malim in se) and things that are wrong because the laws (or social arrangements more generally) make them wrong (malim prohibitem). Infanticide when adoption is not available cannot be generally asserted to be wrong itself, or at least, it cannot be generally asserted to be a great wrong in itself. Thus infanticide when adoption is available, while it may contain some degree of malim in se, is primarily a matter of malim prohibitem (since the wrong depends on the nature of social institutions).

There are important reasons why acts that are only or primarily wrong as a consequence of law or social institutions should not be punished as harshly as acts that are deeply wrong in themselves. Of particular importance in the current case is the issue of criminal intent. The perpetrators may have been fixated on their natural circumstances and been blind to how the availability of adoption fundamentally alters the calculus of natural interests.

This would seem to describe the thinking of the two teenagers. The infanticide was clearly an act of desparation and avoidance -- trying to avoid what in natural circumstances would have been the true cost to their hopes for the future of allowing the baby to live. Their malim prohibitem was culpable because their avoidance behavior extended to blinding themselves to the option of adoption. It should be punished substantially. But panicked avoidance of the facts is in itself no death penalty crime.

Thus their behavior was in some degree perhaps a natural wrong, but not of an extreme sort, and it was an artificial wrong (a wrong, given the state of human artifice or institutions) of a much more extreme sort, but artificial wrongs are not properly punishable by the most extreme penalties. Thus neither the malim in se nor the malim prohibitem that is involved in the Delaware case comes close to warranting the death penalty.

(Intentionally killing people by driving down the wrong side of the street might seem to provide a counter-example to the proposition that artificial wrongs are not properly punishable by the most extreme penalties. Here though, the heinous crime is not driving down the wrong side of the street but the intentional killing of other drivers, which is malim in se. It is wrong in itself, and greatly so. That is why it would appropriate to apply the severest penalties for such behavior.)

So much for punishment. The remaining consideration is deterrence: letting other young people know that if they have an unwanted child they must put it up for adoption before they would kill it. But this could be accomplished with far less than the death penalty, so problematic considerations of the morality of sacrificing the one for the many do not even have to be taken up here.

In sum, the death penalty is no where near called for in this case, and to impose it would be a terrible wrong. This is an important case for both pro-life and pro-choice advocates to think about. It pushes pro-choice advocates to come to grips with the continuity between abortion and infanticide, and it pushes pro-life advocates to see how this continuity does not win the argument against choice, but clarifies that life can be involved on both sides of these questions. When it is, the government is generally not in a better position than the parents to weigh the interests at stake. Accordingly, the government's grounds for intervening will generally not satisfy the necessity requirement that defines the proper role of government in a free society.

Government must intervene when there is no longer life at stake on both sides of the equation (as in the case of infanticide when adoption is available) but even here punishment must be moderated in accordance with the limits on how it can be proper to punish violations of artificial virtue, or malim prohibitem. Infanticide of an unwanted baby is a terrible mistake and a terrible crime, but it is clearly not a death penalty crime.

What allows violence in the punishment of crime to be moral is its foundation in the analysis of value, following what we can see and say about right and wrong. When criminal justice violates what can be discerned about right and wrong it is no longer justice but begins itself to partake of crime.

(Alexander Rawls is pursuing a Ph.D. in economics)

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