When the Difference Between Punishment and Absolution Is Just Bad Luck

Luck is often the only difference between evil and innocuous.

Posted Oct 17, 2010

The Morcombe case attracted plenty of attention in Australia, and it continues to feature prominently in the media. A coronial inquest began recently to determine the nature of Morcombe's disappearance. In unsolved cases that ignite public outrage, inquests sometimes function as diluted alternatives to a high profile murder trial; instead of directing its anger towards a central defendant figure, the public flails looking for someone to blame. Though hundreds of unpunished bus drivers leave thousands of passengers stranded every day, Sunbus driver Ross Edmonds is shouldering the blame for his more fortunate colleagues.

It's easy to see why people feel angry towards Edmonds. If he'd stopped the bus, Morcombe would be alive. But that simple claim hides a complicated philosophical and psychological question: does Edmonds, the bus driver who happened to be in the wrong place at the wrong time, deserve the public's anger? More directly, does he deserve more anger than the thousands of other bus drivers who leave passengers behind when their supervisors tell them to make up for lost time? (Sunbus company policy now stipulates that bus drivers must stop for children, regardless of whether they're running late.)

According to the law, and to common moral intuition, people who voluntarily commit wrongful acts should be blamed accordingly. That's why some homicides are prosecuted with more force than others, and premeditated murder warrants a tougher sentence than homicides caused by accident. But this intuition hits a brick wall when you try to explain why Edmonds attracts opprobrium while his luckier colleagues who leave passengers behind without consequence escape public censure and the indignity of a coronial inquest.

The tendency to blame and reward people for the involuntary outcomes of their actions, rather than their intentions, is known as moral luck. Edmonds neither intended nor foresaw the possibility that Morcombe's life rested on whether the late 1:30pm bus stopped along the Nambour-Connection Road. (Of course, it's possible to argue that Edmonds should have taken more care because Morcombe was not an adult; but that doesn't change the fact that we judge Edmonds more harshly because Morcombe was abducted than we would have had Morcombe been safe.)

Edmonds was at the mercy of moral luck, but the same principle sometimes rewards people for being in the right place at the right time. An unlucky bystander shot during a drive-by shooting is a tragic victim, unless the intended target was behind the bystander; in that case, the bystander is both a tragic victim and a hero. The bystander was no more virtuous for "taking a bullet" for the intended target--he had no choice in the matter--but it's hard not to perceive a measure of heroism when the bystander accidentally saves another person.

Many legal systems bow to the principles of moral luck. According to the so-called eggshell skull rule, an offender who assaults and kills an unexpectedly weak victim can't argue for leniency because the victim had an "eggshell skull" and was unusually vulnerable. A similar rule applies when defendants are charged with murdering a Jehovah's Witness who died only because he refused a blood transfusion on religious grounds. Any other victim may have lived, but the offender is still charged with homicide, rather than the lesser offense of aggravated assault. It makes good policy sense to err on the side of harshness in these cases--why extend the benefit of the doubt to a criminal who deserves punishment?--but it's incoherent to then sentence other defendants more leniently, merely because they attacked hardier-skulled victims who were willing to accept a blood transfusion.

Moral luck is similarly prominent when courts punish sportsmen who hit errant golf shots and cricket strokes. In the English case of Miller v Jackson, the Court of Appeals found a cricket club liable for damage caused when errant cricket balls damaged property nearby. In a similar decision in Castle v St. Augustine's Links, the defendant golf club was found liable when a stray golf ball struck a taxi driver and rendered him blind. Both courts recognized that even careful cricketers and golfers can't control every shot, but they assigned blame in these cases because those wayward shots happened to cause damage. Meanwhile, thousands of stray golf balls, cricket balls, baseballs, and softballs, leave fields across the world, but serendipitously fail to do damage; their owners, and their owners' sports clubs, are absolved of wrongdoing.

Recognizing the illogic of these situations, the legislature in New Zealand introduced a very different system for dealing with negligence. Instead of miring the legal system in protracted negligence suits, New Zealand has a no fault accident compensation scheme. According to the scheme, the government's Accident Compensation Corporation supports citizens, residents, and temporary visitors who suffer accidental injuries. Accident victims are compensated for their injuries, but they're not allowed to sue the offending party (except, in rare cases, for exemplary damages). The logic behind no fault systems was expressed most prominently by English legal academic Patrick Atiyah in the 1970s. Atiyah criticized negligence law, arguing that it was manifestly immoral to find defendants negligent when they were not morally culpable. He advocated no fault systems in part because they didn't punish people merely because behavior that was normally harmless happened to cause damage.

Moral luck is fascinating from a psychological perspective, because it pits two intuitively appealing positions against one another: the intuition that two people who commit the same act with the same state of mind should be treated equally; and the intuition that people should be held responsible for the consequences that follow their acts. When we adhere to the principle of moral luck--punishing and praising people based on the unforeseeable consequences of their acts, rather than based on their intentions--we're necessarily violating the principle that what matters most is intent. Children are taught from a young age that mistakes are okay, as long as they were careful and didn't mean to cause harm; but the legal system turns this appealing position on its head when it starts punishing people according to the unexpected negative outcomes that follow generally innocuous behavior.

I'm not suggesting that careless drivers should be absolved when they collide with pedestrians, or that sacrificial bystanders who take a bullet for the intended victim aren't heroes; rather, I'm suggesting that careless drivers should be no less accountable because they happen not to have collided with a pedestrian, and unlucky bystanders are no less heroic because the bullet that killed them would have otherwise struck a wall rather than a person. We demand that sort of intention-based reward and punishment from children, and our legal systems should adopt a similar approach.