To What End?

On Facebook, one of my friends commented on this post:

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.

All crashes are either intentional or they are accidents. Calling them “crashes” doesn’t make them “not accidents.” Reckless crashes are accidents, negligent crashes are accidents, and crashes caused by acts of God are accidents. Almost all crashes are caused by operator negligence—usually by the negligence of more than one of the parties involved—and are avoidable.

This is a popular meme: that it (whatever it is) ought to be a crime because it is bad and societally undesirable. Here’s an anonymous commenter on a KTRK story (watch the video for The Man in Black):

Sure, “accidents” happen, yet when someone is being negligent and causes death and injuries, then that person needs to be prosecuted especially when that death or injury is caused as part of a felony.

Not every wrong is a crime; nor should it be. There are costs to charging people with crimes. Direct costs, sure—time lost from work, lost productivity, court costs, lawyer fees—but also opportunity costs. We don’t have the resources to prosecute every wrong, so we choose those wrongs we criminalize and those we don’t.

How do we choose? Here’s another popular notion: that it (whatever it is) ought to be a crime because it hurt people like us (another anonymous coward, this time on a Chron article):

“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.

Or, from the KTRK story:

“I don’t care how you look at it, it’s murder,” said Kenneth Roberson.

His parents were killed in a collision with tow truck driver Sergio
Gonzalez in 2006. Even though Gonzalez pleaded guilty, the DA dismissed
the case last week.

Families of the deceased don’t get to decide what is murder and what isn’t, and for good reason.

So who decides what accidents are treated as crimes and what accidents are dealt with civilly?

Murray Newman writes:

[S]ome accidents are caused by such negligent or reckless behavior that
they do actually deserve charges being filed and a jury to decide what

The trick becomes determining the fine line between tragedies and criminal acts.

When there’s a “trick” to deciding when negligence merits prosecution and when it doesn’t, the law is too broad.

The law provides for some negligent acts to be treated as crimes. Here’s Texas’s “criminal negligence” standard:

A person acts with criminal negligence when he ought to be aware of a a substantial and unjustifiable risk of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.

Contrast that with civil negligence:

Negligence” means the doing of that which a person of ordinary prudence would not have done under the same or similar circumstances, or the failure to do that which a person of ordinary prudence would have done under the same or similar circumstances.

Criminal negligence looks like a sort of supernegligence (a gross deviation from the standard of care). So in theory ordinary car crashes can’t be prosecuted as crimes.

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.

Which returns us to Mr. Roberson’s perspective: everyone responsible for someone else’s death looks like a murderer to someone.

Most every accidental death is a tragedy. But not every tragedy is a crime. It’s not fair to turn a person into a felon for life for a moment’s inattention that any of us could have suffered. (The pro-government hounds will scream that they are above such inattention; they lie.) It seems obvious that, forced to choose between prosecuting an intentional killer and a negligent killer, we should choose the former. What is less obvious is that every prosecutorial decision has to be paid for somewhere else.

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?)

More questions than answers, I guess.

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0 responses to “To What End?”

  1. Honestly if someone put your kid in a coffin and you would never get to say goodbye or see them grow up your tune would change. If there is a so called accident and a fatality occurs the drivers license should be suspended and reviewed. These people have horrible driving records most of the time and are just allowed to go kill. Maybe if you get to pick out music or flowers for your young childs funeral you will get it. I cant even explain just how bad it hurts you will never get it unless it happens to a close family member im not even talking neice or nephew im talking about your child or spouse. The world turns into an empty place where christmas is dreaded. Its a different world we live in. A crime doesnt even begin to cover what is done to these families

    • It is with some reluctance that I approved your comment, with what appears to be a pseudonym. Defending People is no place for cowards who don’t take responsibility for their opinions.

      I imagine that I might feel differently if a negligent driver killed my child. There’s a reason that families of the deceased don’t get to define murder.

      If you have never suffered a moment’s inattention while driving, then you don’t drive. Everyone zones out. The difference between a moment’s inattention that scares you into being more careful and a moment’s inattention that kills someone else is nothing more than dumb luck.

    • Losing a child is every parents’ worst nightmare and no one is trying to diminish the anguish and pain that it causes. But, that is not the issue. The issue is whether those who have made a mistake that caused the terrible result should be exposed to prison. If sending those people to prison will cure the anguish and pain, then the child’s life was not worth very much to begin with. Alas, we all know that it will not cure the anguish and pain.

      You overstate your case when your claim that “these people have terrible driving records.” Some, undoubtedly do. Many, if not most, also do not. Such exaggeration does nothing to make your argument more persuasive.

      No one is suggesting that those responsible should not be held accountable — just the manner in which they are accountable. For my money, they need to be accountable directly to the people they have harmed. Making them accountable to society by exposing them to the criminal justice system does nothing but cost society more. It accomplishes nothing. It may feed the vengeance train, but that it set on tracks we should all seek to reduce not encourage.

  2. This discussion brings me back to:

    Criminalizing mistakes and accidents to the point that it exposes people to prison is nuts — a very precise legal term of art.

    The law long ago lost any real sense of proportion. News laws having vast consequences get created in reaction to a single incident without much thought being given to the abuse that can and will occur when less than reasonable human variability gets added to the equation.


  3. I practice in Michigan. Here, it’s possible to be convicted for a felony, or a state-prison misdemeanor, for motor vehicle accidents that could not possibly result in the defendant paying one cent in damages in a civil case. In our civil litigation, the plaintff cannot recover if he or she was more than 50% at fault. However, in criminal prosecutions, the negligence of the other driver is not an issue for the jury to consider, nor is evidence of the other driver’s negligence admissible for the defense. Thus, a defendant who was 1% at fault can go to prison, without being liable to have to pay any damages, had it been a civil action. I think that’s absurd, and a due-process violation, but so far, I’m a lone voice crying in the wilderness about this.

    • @Greg Jones: I’d have to agree that it’s likely a due process violation there. Since that’s the case, just because you’re a lone voice doesn’t mean you can’t work at changing it. Make a compelling enough case and perhaps the Supreme Court will grant you and an affected client cert on the subject. As it stands, I’m gunning for a very vague law that’s needing to be revoked badly in my State, having had it applied to me twice so far, in which one could lose property without really ever being guilty of a Penal Code offense.

      The ONLY reason that these laws stay where they are is that people believe their rights are automatic- and they’re not, you have to FIGHT for them, period. If you won’t stand up and fight for yourself, at some point, you get precisely what you deserve.

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