Lethal Ethics: When Philosophical Distinctions Kill

by Julian Savulescu

Teresa Lewis died on the 24th of September after being a lethal injection at the Greensville Correctional Centre in Virginia. The 41-year-old was convicted of plotting to kill her husband, Julian Lewis, and her stepson, Charles Lewis. She persuaded two men to carry out the murders in return for sex and money. The two men received life sentences. The execution went ahead in spite of protests from lawyers, celebrities and others who argued that she should have been given clemency because of her low IQ. Under US law, anyone with an IQ of 70 avoids the death penalty. Lewis was judged to have an IQ of 72.

Pleas for clemency were rejected by the governor of Virginia, Bob McDonnell, who said there was no "compelling reason". An appeal to the US Supreme Court was also turned down.

In Virginia, there is a law that means that intellectually disabled people cannot be given the death sentence. Intellectual disability is a medical diagnosis. General intelligence or g naturally varies in a normal distribution within a given, defined population. For western populations, it famously follows a bell curve with a mean of 100 and a standard deviation of 15 points. Intellectual disability for medical, legal and social purposes is arbitrarily defined as an IQ two standard deviations below the mean (below 70). Over 2% of people have intellectual disability.

If Lewis’ IQ had been 3 points lower, 69, she would still be alive today. Those 3 points make no difference to functional capacity. For all intents and purposes, the abilities and competencies of a person with an IQ of 69 would be the same as those a person of 70.

Of course, the law must draw lines and there will inevitably be cases which fall on either side of the line, with drastic consequences. The law has been based on a scientific, medical definition of what constitutes disability

What is disturbing is that their very definition of disease and disability is completely ill suited to this application. It is a statistical concept, where a line has been drawn arbitrarily at point of 70, two standard deviations from the mean. It could have been drawn at 3 standard deviations, in which case many more people would have been liable for execution in Virginia, or at one standard deviation, in which case Lewis would be alive.

Our definition of disease evolved to serve various functions including who should have excuses for illness, receive support, be objects of medical research and treatment. It is a value judgement.

There are various different conceptions of disease and disability. The one which cost Lewis her life is Naturalistic conception statistically based on normal species functioning. I have argued that we need to revise our concept of disability away from this statistical conception to one which serves the goals we require of it. In the case of medical care, one which is related to our well-being.

In legal terms, it should be defined in terms of legal competence, competence to make free and informed judgements about one’s actions. The confused idea there that there is a deep, clear distinction between disease and normality (that can someone be scientifically or medically defined) infects debate about human enhancement. If we increase the IQ of someone with an IQ of 69, it is a treatment and so many people believe is permissible. If we increase the IQ of someone with an IQ of 72, it is an enhancement, and so fundamentally ethically different. But this is nonsense. The effects are virtually morally identical.

The lines we draw, on the basis of our ethical values and philosophical distinctions, can have lethal consequences. The distinction between disease/disability and normality cost Lewis her life. It may mean that we mistakenly deny many “normal” people enhancements that could profoundly benefit their lives. Many people think that ethics and philosophy are armchair disciplines of little practical importance. They can be a matter of life or death.

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8 Responses to Lethal Ethics: When Philosophical Distinctions Kill

  • Just a note to laud and register support for this post. Basing matters of life and death on arbitrary factors is arguably very disturbing, unjust, and culturally perverse. Moving away from a statistical conception and toward an appropriately and more explicitly normative/axiological one focused on well-being (but perhaps without relying on claims/principles about “normality” and norm cognates) seems like the right way to go.

    As I believe you know, your remarks here can remind readers of Ron Amundson’s 2000 paper Against Normal Function particularly and his work on disability generally. For anyone interested and unfamiliar – Here is a link to Amundson’s paper Against Normal Function:
    http://www.uhh.hawaii.edu/~ronald/pubs/2000-Against-Normal-Function.pdf

    And here is Amundson’s bibliography webpage with links to several of his papers:
    http://www.uhh.hawaii.edu/~ronald/AmBiblio.htm

    I look forward to reading more about your well being approach (and I wonder whether you might share with readers any current or general thoughts about Amundson’s work). Do you discuss it in detail anywhere in recent print? In any case, thank you for this importantly thought provoking and consciousness raising post.

  • Peter Wicks says:

    Is it also considered pathological to have an IQ above 130?
    If not, it’s not only a naturalistic assumption that’s being made. Otherwise why the asymmetry?

  • jonah says:

    “The confused idea there that there is a deep, clear distinction between disease and normality”
    Good point! And the flipside is: any reasonably law needs to be gradualistic. Legal liability should increase in proportion to agency capacity.

  • “Teresa Lewis died on the 24th of September after being a lethal injection at the Greensville Correctional Centre in Virginia.”

    My God. People being injections. What has happened to this world?

  • Dennis J. Tuchler says:

    But, is the purpose of criminal penalties to punish the deserving (e.g. one capable of knowinghly doing wrong and willing it) or to deter such punishable conduct and to reinforce the relevant norms in the relevant community? If it is the former, then you are committed to a concept of desert that requires free will to choose. If it is the latter, then you want to do away with as many individuating distinctions as possible, for each distinction, and the possibility of error in applying it in favor of a particular malefactor weakens deterrence and reinforcement of norms. Is the criminal law about sin, or is it about prevention of acts we call criminal? I think it is the latter.

    A mistake is made when one conflates the question of desert with the question of the appropriateness of the death penalty. Death is special in that it cannot be called back in case of a mistake and because it allows us to dehumanize the person put to death. Death is worse, to most people, from lost years and comfort because of mistaken imprisonment.

  • “The confused idea there that there is a deep, clear distinction between disease and normality (that can someone be scientifically or medically defined…”

    I’m not sure what you mean by this. Is this to suppose that there is no distinction at all? Surely, there is a distinction between those with serious diseases and those without any. In that case, our worries must rest with those who are difficult to determine (i.e., the epistemically vague cases). I’m not sure what you mean exactly by a “deep” distinction. I guess that’s the part I am hung up on. Do you mean something like what Jonathan Schaffer would call a ‘”real”‘ (or fundamental) difference?

    An author above writes, “Basing matters of life and death on arbitrary factors is … unjust…” It seems to me that one would want to extend this to matters concerning justice in general. Does anyone argue for either the restricted or general claim in print? It doesn’t seem correct to me, but my mind is somewhat foggy today.

    Also, thanks for the stimulating read.

  • Rawls’ argument for his (first) theory of justice (the one most widely discussed and published in his 1971 book A Theory of Justice) is largely based on the fact that advantages and disadvantages that people do nothing to deserve have profound effects on their life prospects. Rawls repeatedly relies on principles according to which undeserved advantages and disadvantages that affect life prospects are arbitrary from the moral point of view – and Rawls argues, roughly, that one cannot justify principles of distributive justice with morally arbitrary features. The concern about arbitrariness is the main motivation for the original position, the veil of ignorance, and why using them can allegedly tell us something about justice.

    Many other theories in both ethics and political philosophy are motivated by NOT allowing important aspects of decisions, life, and death to depend on arbitrary factors. These matters are contentious, though I do not see how they could seem incorrect to you. Suppose your income was not determined by your skills or job qualifications, but rather on the number of hairs that grow on your head, or the color of (and amount of certain pigments in) your skin. These are arbitrary factors that you did nothing to deserve. Do you think it is just for an employer to use them in making job hiring decisions, job promotion decisions, etc.?

    If Professor Savulescu has the time/patience for some comments here on Ron Amundson’s work from my comment above, I think readers could learn/benefit from them.

  • “Suppose your income was not determined by your skills or job qualifications, but rather on the number of hairs that grow on your head, or the color of (and amount of certain pigments in) your skin. These are arbitrary factors that you did nothing to deserve. Do you think it is just for an employer to use them in making job hiring decisions, job promotion decisions, etc.?” Oh, gyeah. Now what?

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