What Should Be a Crime, Anyway?

Think of this as a work in progress. Some musings. I'm not prepared, today, to stand very far behind my final conclusion, but I think I'm on the right track.

A while back, I wrote about who the victims are in criminal cases. The point was that criminal law isn't about, and isn't supposed to be about, those individuals who are harmed by the acts of criminals. That's what the civil law, and in particular the tort system, is for.

Crimes aren't offenses against the individuals who are harmed. They're offenses against the body public, against the state, against good order. To pick one recently-in-the-news-again local example, when Father Gerald Robinson murdered (or didn't*) Sister Margaret Ann Pahl she was not the victim of the crime, but of the killing. she was its instance.

She (or her survivors) have (or have had) a legal right to sue Robinson (or whoever) for wrongful death and for any other harm he (someone) might have caused. That's a private right of action. It's the same right the victim of a purse snatching has to attempt to recover the purse or at least the value of what was stolen through the civil law system. It's how we attempt, insofar as we can, to make whole people who are hurt by the actions of malefactors.

But criminal law is something else. The victim of the crime, as opposed to the victim of the criminal activity, is the state. We are all collectively, but only as a collectivity, harmed by the damage to the social order, by the disruption of the public welfare caused by the criminal act. It is the rending of the social fabric that the criminal law addresses, and it is the social fabric itself which is the victim of crime.

That's a difficult concept for the non-lawyer, it seems. Hell, it's a difficult concept for prosecutors and judges (and even too many defense lawyers). But it's crucial. It's why so-called victim impact statements have no proper place in criminal sentencing. It's why the views of those individuals who suffer as individuals from the actions of criminals should have no say in what charges are brought or pursued. It's why prosecutors (and judges) who require permission, or at least acquiesence from individuals harmed by the criminal act before offering or agreeing to plea bargains act improperly.

Consider that background.

Yesterday, Mark Bennett explored car crashes and negligence and whether we ought to be prosecuting people for negligence at all. They're important questions.

Here's the guts of the problem.

We prosecute people for things they've done wrong. Some of those things, we'll pretty much all agree are wrong in themselves (the legal Latin is malum in se), intentionally killing Sister Margaret, for instance. Some are wrong mostly because we've declared them wrong (malum prohibitum), say permitting one's stallion "to serve a mare within thirty feet of a public street or alley in a municipal corporation."† Those prosecutions, and in particular the punishments are designed to deter the wrongdoer from doing it again, to deter others from doing it, to punish the misdeed, and to express social outrage that such misconduct should be permitted at all.

That's fine if you act intentionally. Father Robinson (or whoever) killed Sister Margaret on purpose. But the animal sex offense is different.

Sure, you might have built that whorsehouse right at the street for easy, er, access. But more likely, you don't have a clue that you're permitting the stallion to have a go at the mare too close to the street. (I'm ignoring the question, here, of whether ignorance of the law should be an excuse. I'm assuming that there's not a "No bopping" sign.) You were careless.

Most auto accidents, as Bennett notes, are just that. They are consequences of people acting negligently. They violate a duty of care that most people - or at least many people - frequently violate, violations that society is generally willing to tolerate. You can sue over the accident - people do that all the time. But it's unlikely that there's a criminal prosecution - beyond a speeding ticket, say - for the typical fender bender.

Why? Because the law requires more than simple negligence before the negligent act becomes a crime.

In Texas, Bennett tells us,

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.

Civilly actionable negligence, on the other hand, is doing what a "person of ordinary prudence" wouldn't have done under the circumstances" (or not doing what that person would have done).

In New York, according to Scott Greenfield, the rule is similar.

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.

Even Ohio, which is less forgiving (at least in statutory language) than either New York or Texas, says that for negligence to be criminal the act must be a "substantial" violation of the duty of care. Civil negligence is simply the violation.

All of that was wonderfully on display recently in Houston. The other day, according to the Houston Chronicle, Sergio Jimenez Gonzalez had his conviction for criminally negligent homicide as a result of an auto accident voided because the prosecutor's office concluded that there was no crime. First Assistant District Attorney Jim Leitner explained.

[A]s tragic as this accident was, the facts simply do not rise to the level of a criminal offense.

One commentor took a different view.

"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.

But see, the facts, the acts of the driver that caused the accident were the same as if nobody had gotten hurt. What he did isn't any worse because it caused a death than it would have been if his car had passed through the intersection and no accident had occurred. Only the consequence was worse.

Consequences matter. Shooting someone is a different crime if the person only gets hurt than if the person got killed. But the difference is in the degree of the crime when there's a crime in the first place. The consequence isn't what makes the act criminal. But what does, exactly? Or more properly what should?

Is carelessness, even really really really careless carelessness enough? That's the idea behind distinguishing criminal negligence from ordinary negligence. Anyone can run a red light. Almost everyone speeds. Despite the barrage of warnings, it seems that talking on the cell phone while driving is almost a moral obligation today. Are those things, ordinarily, more than mere negligence, traffic ticket level negligence? Are they criminal negligence?

What if you were speeding a lot? Say 90 in a 35 zone? What about getting behind the wheel when you're drunk? Should it matter how drunk you are? Should the only test be whether you're impaired, or are per se violations proper?

And, as Bennett wonders, what about recklessness?

No easy answers here, though Greenfield takes a flyer:

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.

OK, but what's the measure?

I can't shoot a gun into a crowd because the odds I'll hurt someone are ridiculously high. But how high is high enough? Legislators draw those lines, but their motives are suspect - jumping onto the most recent outrage. (I'm waiting for the first formal change in Ohio law to allow specific enhanced prosecutions for pretending your child is lost in a UFO shaped balloon.)

I'll suggest that the proper test has two parts. (1) The behavior really ought to be seriously risky, self-evidently so. (2) The act should be an actual choice. In some cases there's a third part: There should be a causal relationship, not merely a concurrent one between the action and the bad consequence.

Drunk driving, when you're marginally over the limit and your driving isn't impaired and the drinking and driving are both separately legal (you're of age, say, and have a license) just doesn't make it as a crime by that definition. Maybe a citation-worthy offense, but not a crime. And if you were seriously drunk and driving badly and there's an accident, show me the causation, not just the correlation before I begin to see that the accident should be prosecuted at all.

We should criminalize only those bad acts, whether malum in se or malum prohibitum that are engaged in by choice something like conscious choice. That eliminates most traffic violations (just give out a citation) even when they cause accidents. At least, that's a starting point.

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*Father Robinson has quite a number of supporters who maintain, insistently, that he is factually innocent. They may, of course, be right. Regardless, he has been convicted, and his direct appeals are completed and have failed. That makes him her murderer legally regardless of the facts.
† That's a violation of section 959.19 of the Ohio Revised Code.