To What End?

 Posted on October 23,2009 in Uncategorized

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 SergioGonzalez in 2006. Even though Gonzalez pleaded guilty, the DA dismissedthe 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 thatthey do actually deserve charges being filed and a jury to decide whathappens.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.