Document Type

Article

Disciplines

Criminal Law | Evidence

Abstract

In its standard formulation, the doctrine of double effect (DDE) permits an action that causes foreseeable and harmful, even dire, collateral consequences, so long as the actor merely foresees but does not intend them and the harms are proportional to the benefit. Yet DDE’s critics question the moral distinction between intending a bad outcome, on one hand, and merely knowing that the actions will result in the bad outcome but acting in exactly the same way, on the other. After all, except in a few narrow circumstances, criminal law in the United States treats intent and knowledge as equally culpable mental states that each amount to “intent.”

This Article reinterprets and reconstructs DDE to avoid this critique. Properly reimagined, DDE does not depend on an actor’s subjective intentions. Instead, it allows an action if one can plausibly identify a permissible intention that could explain that action and any resulting harm is proportionate to the expected benefit from the action. However, if the only plausible way to understand a particular action is as the product of an impermissible intention, then the action is morally impermissible, and there is then no need to inquire into proportionality. Thus reconceived, DDE helps make sense of how the law resolves problems in a wide range of contexts, including jury nullification, disparate impact race discrimination, and the admissibility of evidence that proves too much. With the notable exception of most prohibitions against intentional discrimination—which control the special context of at-will employment and other at-will settings—DDE as reconstructed proves to be a powerful instrument for answering challenging legal questions.

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