Quantum Night

4

I’d have been happy to go home after the morning’s evisceration, but when the judge had called the recess, Miss Dickerson indicated she wasn’t through with me. After failing to find a vegan entrée in the courthouse cafeteria, I’d settled for a packaged salad and a cup of black coffee.

The fireworks began again as soon as court resumed. “Objection!” said Juan, rising in response to Dickerson asking me once more about my personal history. “This fishing expedition has no bearing on the sentencing of Devin Becker.”

Dickerson spread her arms as she turned toward the brooding judge. “Your Honor, this is the first time Mr. Marchuk’s technique has been introduced in a court of law. With the court’s permission, it seems only appropriate to delve into any biases or prejudices—even ones that he himself might not be aware of—that might have tainted his results.”

“Very well; objection overruled—but don’t wander too far afield.”

“Of course not, Your Honor.” She turned back to me. “Mr. Marchuk, sir, what’s your stance on capital punishment?” I saw Juan clenching his wide jaw.

“I’m against it.”

Dickerson nodded, as if this was only to be expected. “Earlier you told us you were Canadian, and our friends to the north don’t have capital punishment. Is your objection simply something that goes with your citizenship, like a fondness for hockey and maple syrup?”

“I object to capital punishment on a philosophical basis.”

“Ah, yes. When Mr. Sanchez was introducing you, he made mention of the fact that in addition to your three degrees in psychology you also have a master’s degree in philosophy, correct?”

“Yes.”

“Well, then, given this sentencing trial is precisely about whether Mr. Becker will receive the death penalty, perhaps you could briefly enlighten us as to your philosophical objections to it?”

I took a deep breath. I’d often debated the issue in classrooms, but the palpable disapproval of the jurors was throwing me off my game; the D.A. hadn’t allowed anyone who was morally opposed to capital punishment to be impanelled for this case. “They aren’t just my objections,” I said. “I’m a utilitarian philosopher. Utilitarians believe the greatest good is maximizing happiness for the greatest number. And one of utilitarianism’s founders, Jeremy Bentham, back in 1775, articulated several compelling arguments against the death penalty, arguments that still make sense.”

I let my butterflies settle for a moment, then: “First, he said—and I agree—that it’s unprofitable. That is, it costs more to society to execute people than it does to keep them alive. That was true in Bentham’s day, and is even more true today: the extended legal proceedings, including this very one that we’re all part of right now, plus the inevitable appeals, make it far more expensive to execute a criminal than it is to imprison him or her for life.

“And, just as important, Bentham said—and, again, I agree—the death penalty is irremissible. That is, there’s no way to undo an error. Of course, the unhappiness that results from a wrongful execution is huge for the death-row inmate. More than that, though, if a society executes an innocent man, and that fact is subsequently revealed when, for instance, the real killer is caught, then everyone in that society feels—or, at least, should feel—great remorse at the horrible thing done in the name of all of us. And then—”

“Thank you, sir. We get the idea. Now, then, what about abortion? If your argument is that punishing the innocent with the ultimate sanction is debilitating for society, then I’m sure the men and women seated here, in the wake of our Supreme Court having recently overturned Roe v. Wade, will be gratified to hear that you’re pro-life.”

“I’m not. I’m pro-choice.” I heard a hiss-like intake of breath from one of the jurors, and saw another one, the bearded white man, shake his head slowly back and forth.

Belinda Dickerson returned to her desk, and her assistant took a book out of a briefcase and handed it to her—and, like every author, I have the ability to recognize one of my own books at just about any distance, even when it’s partially obscured. “Your Honor, I’d like to introduce this copy of Utilitarian Ethics of Everyday Life, by our current witness, James K. Marchuk.”

Judge Kawasaki nodded. “Mark as People’s one-four-seven.”

“Thank you, Your Honor. Just to confirm, sir, you are the author of this book, correct?”

“Yes, that’s right.”

“As you can see, I’ve marked two pages with Post-it flags. Would you be so kind as to turn to the first one and read the highlighted passage?”

Post-it flags come in many colors; I use them all the time myself. She’d no doubt deliberately chosen red ones; she wanted the jury to be thinking about blood.

I flipped to the first indicated page, carefully took out my reading glasses, and said: “‘As in all utilitarian thinking, one cannot put one’s own desires or happiness ahead of another’s simply because they are one’s own, but in the case of a genetically defective fetus which, if brought to term, will live an unhappy, pain-filled life, terminating the fetus is clearly the path that will most increase the world’s net happiness, for, as we have observed, there are only two ways to add to the world’s total joy. The first, obviously, is to make the people who already exist happier. The second is to actually increase the number of people in the world through childbirth, provided they will likely live happy lives.’” Italics, as the saying goes, in the original.

I shifted uncomfortably in my seat then went on. “‘The corollary to this is that the world’s total happiness is decreased by either making existing people less happy—as raising a disabled child with its attendant emotional and financial costs would doubtless do for the parents—or by allowing more people to come into existence who will be unhappy, as a child born to a life of pain and suffering will be. In such a case, therefore, abortion is perhaps morally obligatory.’”

The argument was more complex than that, and I dealt with all the objections one might raise in the subsequent paragraphs, but I stopped when the blue highlighting came to an end, closed the book, and looked up.

You could hear a safety pin drop in that courtroom. The jurors were all staring at me, some with mouths agape, and the color had gone out of Juan’s face. Only Devin Becker looked unperturbed.

Dickerson let the silence grow for as long as she felt she could get away with, then: “Thank you. Now, the next passage, please.”

I nervously opened the book again and flipped to the second marked page. At the top of it was a double-indented quotation from utilitarianism’s other founder, John Stuart Mill; I knew it by heart:

Few human creatures would consent to be changed into any of the lower animals, for a promise of the fullest allowance of a beast’s pleasures; no intelligent human being would consent to be a fool, no instructed person would be an ignoramus, no person of feeling and conscience would be selfish and base, even though they should be persuaded that the fool, the dunce, or the rascal is better satisfied with his lot than they are with theirs.

It is better to be a human being dissatisfied than a pig satisfied; better to be Socrates dissatisfied than a fool satisfied. And if the fool, or the pig, are of a different opinion, it is because they only know their own side of the question. The other party to the comparison knows both sides.

But Dickerson hadn’t highlighted that. Instead, the blue marking began immediately afterward; I swallowed, then started reading aloud:

“‘Mill’s key point is that we reasonably and correctly value the lives of a human more greatly than we do that of a chimpanzee, for the chimp, while perhaps enjoying the moment, cannot anticipate future happiness as well as we can—and that act of anticipation is in itself a pleasure.’

“‘Likewise, we value a chimp—to the extent in many jurisdictions of outlawing their use in laboratory experiments—more than we value a mouse, a being of demonstrably lesser intellectual capacity. But to be fair, and to avoid a charge of speciesism, we must apply the same standards to our own kind.’

“‘Yes, an embryo, from the moment of conception, is genetically fully Homo sapiens, but it has no complex cognition, no ability to plan or anticipate, and little if any joy. As it develops, these faculties will accrue gradually, but they clearly do not exist in anything approaching their full form until several years after birth. On the bases previously discussed, a utilitarian should support abortion when a prenatal diagnosis has been made that is strongly indicative of an unhappy, painful life; it is on this current basis—the lack of a fully developed mind for years to come—that a utilitarian can additionally embrace not just abortion but also a merciful release when a severe defect is not apparent until after parturition.’”

“‘Parturition,’” said Dickerson. “A right fancy word, that.” She glanced at the jury. “For those of us more accustomed to plainer speaking, what is ‘parturition’?”

“Childbirth.”

“In other words, Mr. Marchuk, sir, you believe abortion is okay. You believe—and I find this almost impossible to say aloud, but it is what the indicated passage said, isn’t it? You even believe infanticide can be okay. But you don’t believe in capital punishment.”

“Well, as Peter Singer would argue…”

“Please, sir, it’s a yes-or-no question. Are you against capital punishment in all circumstances?”

“Yes.”

“Are you in favor of abortion?”

“I’m in favor of increasing utility, in maximizing happiness, so—”

“Please, sir, again: yes or no? In the vast majority of circumstances in which a woman might desire an abortion, are you in favor of letting her have it?”

“Yes.”

“And are there even times when infanticide, when killing an already-born child, is, in your view, the right thing to do?”

“On the basis that—”

“Yes or no?”

“Well, yes.”

“And your goal here is to convince the good men and women of this jury that it would be morally wrong to execute the defendant?”

I spread my arms. “I have no goal other than to explain the screening technique I developed, but—”

“No, buts, sir. And no more questions. Your Honor, I’m very grateful to be through with this witness.”