August 09, 2003
Silence with an excuse
I'll be gone for the next week, camping with my family in Rocky Mountain National Park. The goal is to summit Long's Peak. It's 14,255 feet high, the tallest mountain in the park. Nearby Pikes Peak is taller, but it's marred by a road you can drive to the top. Not this one. The Keyhole path, as described in the official guide, isn't nearly so paved.
The six miles to the Boulderfield, where the route begins, is a strenous hiking trail. From the Boulderfield, ascend west to the Keyhole and traverse south across a steep ledge system on the west face. Ascend the Trough, then traverse another ledge system called the Narrows. The "Homestretch is the final scramble to the summit. [Lovely pics, do check them out.]Part of the mountain's charm is that you must begin your hike in time to be back under treeline by the time the afternoon thundershowers roll in. Hikers start between midnight and 3:00am. Those first six miles are in near darkness. The Perseids Meteor shower will peak on August 12th and 13th of this year, but hopefully there will still be some on Friday, when we intend to hike.
My father, my sister Laura, and I tried to summit Long's Peak the last time we were in Rocky, about eight years ago. Unfortunately, we didn't succeed -- turned back at the Keyhole. The Keyhole is about one mile of trails and one thousand verticle feet short of success. We swore we'd try again, before ten years were up. This time, my other sister, who was too
young last time, will join the attempt. Wish us luck, we'll need it.
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Sabotage Revisited
When last we met, I posed two hypothetical questions about poison pills-- in each case suppose person 1 (FS) switches somebody's medicine pills with cyanide. Then person 2 (SS) comes along and replaced the cyanide pills (thinking they are medicine) with sleeping pills. Then the poor victim comes along, takes the sleeping pills, and gets in a car accident, which is either fatal or not. Who murdered/injured the victim?
Well Ben Wolfson and Tim Sandefur think they have solved the problem. Mr. Wolfson says that the second poisoner gets the moral culpability:
(he) had no way of knowing that what he did was good, as long as it's stipulated that he knows nothing about the actions of the FS, something that neither Will nor Timothy proposes changing.
Mr. Sandefur agrees at least so far as legal liability is concerned, though he later concedes he's uneasy about moral liability tracking legal liability in this case:
In the case of the sleeping pills, this principle would cut off liability for the man who put in the cyanide—he would actually escape liability for the harm caused (although he would still be on the hook for the attempt). In any case, however, the “higher ex ante chance of survival” is irrelevant, so long as it is reasonably likely that death in a car accident could result from the placement of sleeping pills in the medication (which it is). The court would have no reason, in assessing the second party’s liability, to compare those sleeping pills with the cyanide.
So I guess it's time for me to mount a defense for the second poisoner. First, let me concede that he is definitely guilty of attempted murder. "I tried," he admits, "to administer a dangerous substance to the victim, and that substance has a substantial risk of causing him death or injury." But I will also argue he isn't guilty of actual harm. Why? What did he do? He replaced a harmful poison with another one that was as harmful or less. Despite his attempts to do something dangerous and harmful to the victim he didn't.
It may be illustrative to imagine where guilt would lie if person 2 had done everything knowingly. If, knowing a victim is about to be poisoned I switch his poison for sleeping pills, surely I am not a great samaritan (or I would have put his medicine back in the first place) but surely I have not actually hurt him. But that is the situation in which person 2 finds himself-- while he meant to hurt the victim, and is thus guilty of attempted murder, he has actually not done anything to hurt him at all. And I think it would be very strange for the actual "who killed him?" question to change with my knowledge of the situation. Surely the questions of "attempt" and "intent" change depending on what I intended to do and what I thought I was doing, but the question of who actually committed the killing/injury should not-- at least, I had thought that was the whole point of separating "killing" from "attempted killing".
To confuse confusion even further let us bring about an even more complicated hypothetical. As before, person 1 replaces the victim's medication with cyanide pills. As before, I, person 2, come into his locker room with sleeping pills (not knowing that the medicine is now cyanide). I reach to replace the pills, but when I do, I accidentally drop my sleeping pills and knock the cyanide (which I think is medicine) to the floor. Those are my only sleeping pills, so I grab them from the floor and then realize that the sleeping pills and the cyanide pills (which I think are medicine) have gotten mixed up. So I am holding four pills, two of which I think are harmful, and two of which I think are not. I take a guess at which ones are the sleeping pills and put them back in the locker.
Now suppose I guessed right and administered sleeping pills to the victim-- according to Sandefur and Wolfson, I am guilty for whatever fate befalls my drugged victim from here on out, since the morality of my intervening actions cannot be determined by the person who acted before me. But suppose I guessed wrong and administered the cyanide pills to my victim. On the one hand, I was trying to give him sleeping pills, not cyanide pills. On the other hand, I didn't think there were any cyanide pills present at all, I thought they were medicine. So far as I can tell from Sandefur's and Wolfson's reasoning, I am no longer guilty of murder, though I am still guilty of attempted murder.
And if so, I have to confess this strikes me as a strange system. In replacing a poison with another poison, I commit murder, but in removing that poison, contemplating it, and putting it back, I commit nothing worse than attempted murder. Do I read the theories correctly here? (And, incidentally, what happens if I give him one of each pill?)
I'd like to note that this is all a variation on the classic desert problem. Person A removes the desert traveller's water and replaces it with cyanide. Person B punches a hole in the traveller's canteen, and he dies of thirst. Person A says "oho! I tried to poison him, but he never consumed it." and Person B says "I tried to steal his water, but he didn't have any water for me to steal-- I only stole his poison."
Anyway, my tentative submission is that both poisoners are guilty of attempted murder separately, and of actual murder jointly, just as if each of had grabbed an arm and pulled him in two. Neither one of us did anything murderous alone (although each of us thought we were) but together we are just as guilty as we had hoped to be separately. But I think the situation has to be seen in symmetry to get a coherent answer.
UPDATE: More from Ben Wolfson, and a promise of more from Tim Sandefur.
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