For quite some time, the trend has been to find a crime when someone dies. It’s quite a compelling argument, and the one invariably used by the “victims” rights advocates when they speak to the loss of a loved one. But the harsh truth is that sometimes people are killed and it isn’t a crime. Of course, speaking truth can land a judge on the front page of the New York Post, a place where only Britney Spears feels happy.
Judge Susan Read, writing for a 4-3 majority of the New York Court of Appeals, bucks the trend in People v. Cabrera. The facts of the case are quite sad, where 17 year old Brett Cabrera, driving his folks’ SUV with some friends, on their way to a lake in Sullivan County, hit a curve too fast and went off the road. He had four teenage passengers in his car, even though he only had a junior license. Three of his passengers, not wearing their seatbelts, died.
Brett Cabrera was convicted of 3 counts of criminally negligent homicide. He spent almost two years in prison and was out on parole when the Court of Appeals issued its decision. According to Newsday :
The Court of Appeals, divided 4-3, dismissed the assault and homicide convictions against Cabrera in Sullivan County Court.
The court majority said there needed to be another “morally blameworthy component” besides speeding to sustain criminal negligence. They said Cabrera, as an inexperienced driver, simply misjudged the risk and his skill on the curve where the SUV went off the road.
The gut reaction to situations such as this is often that if someone is killed, especially a child, then it must be a crime. Indeed, some of newest laws, the ones usually named after dead children, come into being for this very reason. There is a certain swell of public outrage when a child dies and there is no one imprison, and this void gets filled by a new law or novel application of an old one, such as the Heidgen murder conviction for drunk driving.
The outcome, no matter how tragic, does not dictate the occurrence of a crime. Sometimes people die as a result of simple negligence. Sometimes, they die and there’s no one to blame, as much as that doesn’t seem possible.
The Court of Appeals decision in Cabrera was clearly a painful one, as demonstrated by the severe split, but an important one.
Even so, the “rule” announced by the Court, that an affirmative act of the defendant was needed to increase the risk into unreasonably dangerous risk presented the test for criminal culpability.
In short, it takes some additional affirmative act by the defendant to transform “speeding” into “dangerous speeding”; conduct by which the defendant exhibits the kind of “serious[ly] blameworth[y]” carelessness whose “seriousness would be apparent to anyone who shares the community’s general sense of right and wrong.” Thus, in the cases where we have considered the evidence sufficient to establish criminally negligent homicide, the defendant has engaged in some other “risk-creating” behavior in addition to driving faster than the posted speed limit. (citations omitted).
Unfortunately, we are left with an incomprehensible rule, bogged down with wholly subjective characterizations like “seriously blameworthy carelessness.” Not even the “risk-creating” language helps, as any half-decent prosecutor ought to be able to frame a death into an issue of some rhetorical “risk-creating” conduct.
But the fact that a majority of the court chose to reverse this conviction, albeit after the sentence was completely served, says something. The Court’s focus on culpability, rather than ultimate harm, is critical to the integrity of criminal law, where punishment is imposed, as opposed to civil law where damages are ascertained. Culpability should never be determined by the outcome, no matter how painful that may be to understand.
It’s not that the deaths of these 3 teenagers was not a terrible thing. It just wasn’t criminal.