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Ohio State Journal of Criminal Law

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Sometimes the government makes a policy choice, and, as a result, innocent persons die. How should we morally assess such deaths? For instance, is the government’s choice of the reasonable doubt standard or its decision to restrict the death penalty to certain narrow categories responsible for deaths of innocents? If so, does the deontological norm against harming people dictate that the government loosen the evidentiary standard for conviction or widen the availability of capital punishment? This Article argues that the traditional distinctions between intending and foreseeing harm and between causing harm and allowing harm to occur are insufficient to absolve the state of its responsibility for such deaths. This Article also argues, however, that it is a mistake to conclude from this observation that the government may be morally required to loosen the evidentiary standard for conviction or to widen the availability of capital punishment. Once we fully understand the distinctive features of government as a moral agent, this Article argues, we will see that the government has obligations both to protect its people from crimes and respond to crimes on behalf of the people and to respect various constraints placed on its power, including desert-based limitations on punishment and standards of proof required for conviction. These obligations may conflict with one another, but that observation does not generate the conclusion that it is morally required to punish people with death or convict people with reduced standards of proof.