by Sherry F. Colb
In my Verdict column for this week, I discuss the case of Burrage v. United States, in which the U.S. Supreme Court held that for a defendant's heroin distribution to have "resulted" in a death, it has to be the case that the heroin customer would not have died "but for" his use of the heroin in question. I use the Court's decision as an occasion to consider the central role that "causing harm" has played in assessments of culpability and punishment. Since differing outcomes (and thus the causal relationship between defendants' actions and those differing outcomes) are so often outside the hands of the defendants, I examine the legitimacy of punishing identically situated defendants differently on the basis of a fortuity, on the basis -- in other words -- of "moral luck."
Moral luck refers generally to the assessment of moral judgment against someone for things that lie beyond that person's control. Treating a successfully completed crime such as murder more harshly than an inchoate crime such as attempted murder represents one example. As I discuss in my column, and as others have discussed far more elaborately, we do in fact assess blame in ways that can turn significantly on matters that lie outside the culpable individual's control. I offer a limited account of why that might be understandable or acceptable. Others have suggested that it may indeed be unavoidable.
In this post, I want to explore another sort of luck that seems to carry moral implications in our blaming practices and in the law: the luck involved in receiving (or being endowed with) goods and qualities without having earned those items. One might make (and some have made) an argument that all criminal activity is a matter of moral luck, because the life experiences and characteristics that we have that lead some of us to commit crimes and others of us to refrain from doing so are entirely matters of our privileged birth, our inborn characteristics, and our environment growing up and beyond. But in referencing the luck that determines our goods and qualities, I refer more narrowly to our "right" to have the things that we have been given, including our bodies.
Consider our bodies. The most fundamental right we have against interference by the government and by private parties is the right to our own bodily integrity. If the government wishes to take your blood, for example, to test for its blood/alcohol concentration, it needs to first have a warrant certifying probable cause to believe that you have been engaged in some illegal activity of which blood/alcohol content would provide evidence, such as driving while intoxicated. If instead, the government (or a private party) wishes to take your blood to give it to someone else who needs a blood transfusion, it may not do so without your consent. And this is true despite the fact that the other person might die without your blood, and you probably have enough blood to spare some without experiencing any ill effects.
From a cost/benefit perspective, it would seem that there ought to be a redistribution of blood from people who have more than they need (and can rapidly manufacture more, once they donate) to people who desperately need a transfusion. Yet there is not even a movement called "Occupy Healthy Veins." We have blood drives, at which people may voluntarily donate blood for those who need transfusions. But no one is required to donate, and a forcible donation would represent an assault and battery and -- if performed by the government -- a Fourth Amendment violation as well.
What does this have to do with luck? Well, the person who loses blood because he was run over by a car or because he has hemophilia or was the victim of a violent attack did nothing culpable or wrongful that would have given him any less of an ex ante entitlement to having enough blood than you or I have. Yet through a misfortune that happened to visit him and not you or me, he needs something that we have, and he needs to get it far more than we need to retain it. Yet, in the face of (and because of) his misfortune in losing blood and our fortune in having it, we are entitled to say "I don't feel like donating blood to you" and to have that wish respected, even if the result is the other person's death. And not only is this the law, but most of us would be extremely uncomfortable with a system of government that forcibly extracted blood from people to serve the one in need.
Even more dramatically, a person who chooses not to donate his or her organs at death (or, in the United States, who fails to affirmatively choose to be an organ donor) can insist on having those organs buried or cremated rather than being taken and given to someone who will die without them. Just as you or I might easily be able to spare a pint of blood for donation, a dead body to be buried or cremated can certainly spare a heart or other organ, since organs do not perform any function and simply die if kept inside the body of a person who has already died. Yet through the fortuities of life and death, the dead person happens to have a functioning organ and a living person who needs such an organ happens not to have one, and the law keeps it that way, absent consent to donate.
In behavioral economics, the experience we have of more highly valuing something we already own than we would value the very same thing if we did not own it is sometimes called "the endowment effect" (although variants on it fall under the rubric of "loss aversion"). For example, people in experimental settings are typically willing to pay more to keep something that they have already received than they are to purchase the same thing that they do not yet have.
I see a version of this phenomenon in my children. If they want something, they are not as attached to the idea of having it as they become once they have been given that same thing (until a week later, when they have completely lost interest in the same thing). A candy bar on the grocer's shelf is worth pleading for, but a candy bar that I just purchased for them but then took away (because, for instance, the recipient began gloating to her sister about having a candy bar) is much more likely to elicit tears. From a strictly rational perspective, not receiving the candy bar should be the equivalent of receiving it and then, one second later, having it taken away. Yet people rapidly come to view a thing as "theirs" and feel very upset at the prospect of losing it, as though they lost more than they would have failed to gain, had they not received the item in the first place.
It seems apparent that the reward systems in our brains respond differently to the prospect of having or not having a thing that is not yet ours versus keeping (or not keeping) a thing that we already have in our possession. In some deep sense, then, we have a shared, biologically-based intuition that when something becomes "ours," that status has real content, and it becomes more "unfair" (as one of my daughters would say, if I took back a candy bar) to have it taken away than it would have been not to have received it in the first place. I believe that our intuitions about our rights to our property and to our blood and to our bodies emerge from this same sort of effect: one who already has something has a greater entitlement to it (even if he did nothing to "earn" it) than someone who does not yet have it.
As a thought experiment, I imagine how I would feel about a situation in which a person, [A], donated a kidney to another person, [B]. Prior to the donation, my intuition (and others' too, I suspect) is that [A] has the right to refuse to part with a kidney, even though [B] may need the kidney to survive, and [A] can part with it and survive. If I imagine, however, that a year after [A] donates a kidney to [B], [A]'s one remaining kidney fails, and [A] needs a transplant, things change. At this point, the kidney that originally belonged to [A] now belongs to [B], and my intuition is that [B] gets to keep it, and [A] must attempt to get a new kidney elsewhere. This is despite the fact that it was originally [A]'s kidney that [B] now has and that [B] might be dead right now and [A] in perfect health, if [A] had not generously made the donation in the first place.
Though my intuitions here are strong, I do find them somewhat perplexing. They make me wonder, for example, whether such intuitions exist to reduce the amount of violence and chaos in life, a result when society shares the view that -- at least when it comes to body parts, blood, and other similarly intimate matters -- we each have sovereignty over what we have, regardless of how unearned and perhaps undeserved the allocation might be. There is perhaps a purely utilitarian explanation for the status-quo preference that seems, on occasion, to violate the principal of utility (such as when the person receiving the blood would benefit more from its forcible extraction than the person losing the blood would lose from it).
I find disturbing the notion that what appears to be a deontological moral intuition (that each individual is entitled to bodily integrity) may rest on fortuities and may also simply reflect an evolutionary cost/benefit analysis that says that if people could easily appropriate others' "stuff," then there would be great and constant violence and chaos. But in this case, I find it hard to otherwise explain my strong intuition that those lucky enough to have enough blood should be able to refuse to share that blood with those without similar fortune. And my theoretical discomfort with this strong intuition may help account for my feeling far less of an intuition that the riches people happen -- either entirely or primarily through luck -- to own should remain with them, regardless of others' need.
The accepted legitimacy of income taxes may thus testify to the limited reach of the moral intuition that what is mine should remain mine and what is yours should remain yours. In a community, we sometimes legitimately require sharing and redistribution, in part because of the role of chance in the initial allocation. But there are limits to that legitimacy, and bodily integrity seems a good place to draw the line.