It’s A Crime Because . . .

The Texas Tornado, Mark Bennett, reacts to a comment on his Facebook page.  The comment reflects a fundamental, and widely held, misconception about criminal law that plagues both the criminal defense lawyer and the honest prosecutor.  The erroneous belief is fostered by politicians and media pundit, the former as a means of proving their worth and the latter as an easy story to evoke anger and drama, and hence interest, by their viewers.

I’m really okay with the DA prosecuting fault for serious car crashes (these are not “accidents”), assuming they charged it appropriately. Houston leads not only Texas but the nation in terms of car crashes, and Houston-area auto owners pay among the highest liability insurance rates in the nation as a result. Most crashes are caused by operator negligence, including speeding, red light running, cell phone use, etc. The overwhelming majority of the time, there’s no consequence for unsafe driving behavior. So when crashes occur, I’m in favor of there being consequences.

I have no idea whether the assertion that Houston drivers are the worst around.  I would have given that title to Massachusetts drivers, or maybe Jersey, though some would say that New York drivers are the worst. Who knows?  But the crux of the comment is that outcome dictates crime.  If someone is killed in a car crash, someone must be prosecuted. 

Intentional acts can be immediately distinguished. Use a car to deliberately cause harm, whether by trying to run someone down or trying to strike another vehicle, is a crime, pure and simple.  A car is merely a “thing”, and like any “thing”, it has the potential to be used as a weapon, a device of harm.  Use it that way and a crime has been committed.

But accidents are not intentional.  Sometimes, despite a person driving a car in a reasonably normal way, an accident occurs.  That may result in a fender bender or a fatality, the outcome having nothing whatsoever to do with the root cause of the accident.  We have ascribed certain responsibilities to drivers in order to attribute fault for civil purposes, an example being that the vehicle behind must allow a sufficient distance so that it can safely stop without crashing into the car in front of it.  Hit someone from behind and, with a few special exceptions, you’re responsible for the damages.  But it’s not a crime.

There are accidents, meaning unintended acts, that do rise to the level of a crime.  What distinguishes these is the driver has done (or not done) something that is a “gross deviation from the norm,” of such grave risk of harm to others, and that the driver knew (or should have known) and chose to disregard that risk, that the driver bears a rational, perhaps moral, culpability for the harm.  To put it in more understandable language, he knew he was doing something really stupid that stood a good chance of causing an accident, and did it anyway.

Bennett explains:

A problem, though: whether a deviation from the standard of care is gross might depend on hindsight and on the result. Talking on the phone while driving is clearly within the ordinary person’s standard of care. Texting while driving may be too. 999 times out of a thousand, nothing bad happens. But when some poor schlub kills someone while chatting on the phone, the results make it look like a gross deviation from the standard of care—even though it’s something that most people do every day. 

The point is that we don’t look to the outcome to determine whether the deviation from the norm demands prosecution, but the choice itself.  More to the point, what constitutes recklessness should not be a matter of who can frame the most heart-string pulling, melodramatic, tear-jerking argument in favor of it being a crime. 

That’s just turning the outcome back on the underlying choice again by rhetorical gamesmanship.  It’s always a tragedy when someone is killed in a car crash that didn’t have to happen.  It could well be argued that no “accident” had to happen.  But they do, and despite all efforts to the contrary, to make people safer drivers and car safer to drive, accidents still happen and people still die.

In New York, we use the phrase “depraved indifference” to capture the worst, lowest, most, most offensive disregard for the life and safety of others.  The classic example used to show depraved indifference is a person shooting a gun into a crowd of people, not intending to kill any particular person, but wholly unconcerned with the grave risk of death the shooter has caused.  It’s meant to be a very high degree of mental culpability. 

At the low end of the criminal spectrum is reckless endangerment, where a person “recklessly engages in conduct which creates  a  substantial  risk  of serious physical injury to another person.”  Reckless is defined as the “conscious disregard of a substantial and unjustifiable risk” that conduct will cause harm to another.  It refers not to what others think of the conduct, but the actor’s state of mind.  Certainly far below “depraved indifference,” but still a rather high hurdle.  The risk caused must not only be objectively real, but one that the driver actually recognized before deciding to engage in the conduct at issue.

The criminal law is meant to place a fairly high barrier between the person who makes a mistake and the criminal.  People make mistakes.  Stercus accidit, to bad people and good.  The question is what did the person do, or not do, rather than what consequence flowed from the act or omission.

The point is faced more squarely in this comment to a Houston Chron article about a deadly crash:

“Gonzalez’s attorney, Todd Overstreet said the incident did not rise to the level of a criminal case.” That’s because it wasn’t your family or loved one, slimeball.

Certainly, the pain felt by the family of someone killed in a car crash would make such blind rage understandable.  But that’s why the law isn’t written by the families of victims, still raw from the horror.  They don’t care about the purposes of the law, to prevent people from engaging in reckless conduct.  They care only about retribution, and we should allow them their pain and emotion.  We should not, however, allow their emotion to dictate policy in order to turn accident into crime.  Not every death means a crime, from society’s perspective, has occurred, no matter how painful the death may be.

The bottom line is that crimes address conduct, not outcome.  While outcome exacerbates the level of crime, such as a beating that results in serious bodily injury is an assault, while a beating that results in death is a murder, it remains that the beating itself must reflect the culpable mental state of the actor.  Without that, the outcome is irrelevant.

Bennett concludes by questioning whether there is any purpose to criminalizing recklessness, as a severe example of negligence:

Prosecuting people for negligence, whether that negligence causes property damage, injury, or death ought to take a much lower priority than prosecuting anything involving bad intent. Should it be done at all? I’m not convinced that it should (to what end?) but I’m not sure I can formulate a principled rational argument against it. (If we don’t prosecute negligence, do we prosecute recklessness? Why?)
I’ll take a stab at this.  Because we have free will, the ability to make choices that impose risks on others.  Some risks, such as the mere turning on the ignition of a car and putting it into gear, creates a risk in itself, but not one that society is prepared to accept as being so inherently likely to cause harm that it constitutes a wrong.  But there are other risks that go beyond the pale, that we refuse to accept as a reasonable choice because it is highly likely to result in harm, and we chose not to give a person who, for whatever reason decides for himself that he’s willing to take that absurdly high risk, to impose his choice on the rest of us.

As we walk outside our home every morning, we realize that we will be challenged with choices about our behavior.  For most of us, we chose to engage in conduct that creates no greater risk of harm than most other people, both because we don’t want anything bad to happen to ourselves and we don’t wish harm on anyone else.  Still, bad things may happen.  That’s life.  That’s not a crime.

One thought on “It’s A Crime Because . . .

  1. Windypundit

    Well said. You know, millions of people buy lottery tickets, but only a handful of them win the grand prize. It would be foolish to conclude the the winners are somehow smarter or more virtuous than the millions of losers. They’re just luckier. True accidents sort of work the other way around.

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