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by Peter Moskos

March 8, 2010

Isn't killing people a crime?

I have lots of smart readers.

Can someone please explain to me why it's not a crime to kill somebody if you're driving. If it were any other situation, it would be crime, right?

Hell driving drunk safely is a crime. But killing somebody sober isn't? I don't get it.

Here's just the latest example.


Anonymous said...

Traditionally at law there was a mens rea requirement and an actus rea requirement, meaning, respectively bad frame of mind and bad act.

For homicides this means that one will generally have to be at least negligent for criminal liability to attach. negligence is about the least bad state of mind you can have and still be considered to have some mens rea.

As far as killing people goes, it is rare that people accomplish a homicide without at least negligence, or higher (eg, recklessness, intentional, premeditated). However, when someone kill somebody without at least negligence, then we typically do not see criminal charges. For example, if the lunch lady give an allergic kid a peanut butter sammich and the kid dies, there is probably no criminal liability for the lunch lady.

However, there is a gigantic exception to the general rule that killing another person requires at least negligence. That exception is motor vehicle accidents. Sometimes these are caused by a negligent driver and sometimes they are caused by negligence on the part of the victim. Sometimes they are caused with no negligence at all on anybody's part (eg, malfunctioning traffic signal).

This is why people who kill others in motor vehicle accidents: no mens rea.

Now, a separate issue is why negligent drivers are seldom prosecuted for negligent homicide. There are several reasons for this, including:

1. Drug war crimes more lucrative for prosecutors.

2. Prosecutors know that defendants in negligent homicide cases hire their own lawyers, and (more importantly) their own expert witnesses.

3. The line between "negligence" and "no mens rea" is generally much harder to draw than the line between the line between "recklessness" and "no mens rea." the burden is on the prosecutor to show negligence (or recklessness, or intention), but showing negligence beyond reasonable doubt is really hard, especially when it comes to motor vehicle accidents. two links to further explain what I mean here:


novel-length treatment of the issue (in the form of a novel):
(well worth reading -- Buddy Hinton stamp of approval, kindle versh available or $2.31 plus shipping for used)

Anonymous said...

--This is why people who kill others in motor vehicle accidents are often left unprosecuted: no mens rea.

Anonymous said...

We all know that prosecutors like to top it the thin-lipped Savonarola. But sociologists? Cops? Puh-leeze!

In any civilized legal system, it is HARD to be a criminal. Treating a citizen as a criminal is the harshest thing that a society can do.

That's why we have mens rea, the reasonable doubt standard, lots of police and prosecutorial discretion, the pardon, and (at least until recently) a laundry list of crimes that was far smaller than the list of sins. If all sins were crimes, we would all be criminals.

PCM said...

That's a very good analysis. And I loved Bonfire of the Vanities. I think I was in high school when I read it, so it's been while.

(and just to be clear, I do understand mens rea.)

But here in New York, pedestrians are constantly being killed by motorists. The inevitable result: the driver is not charged. In the first two months of 2010, there were 27 killed in fatal crashes and just 6 drivers charged.

I'm not out to be vindictive. I don't want to lock up a guy or girl for life for an accident. But it is absurd that drivers get away with killing people. Most (not all) of these accidents would be prevented if drivers were more careful. This is where punishment plays a role.

It doesn't have to be a criminal charge. It could be a whopper of a moving violation related to "causing injury while driving on a sidewalk."

There needs to be a consequence to accidentally killing somebody.

[Wouldn't a person be charged if they accidentally dropped something out a window and killed somebody?]

In some other places (Amsterdam comes to mind) a driver is basically always at fault in any collision with a pedestrian or bicycle--even when the bike is pedestrian is wrong. Or drunk. Or drunk and wrong.

Fair? Maybe not. But it saves lives because it changes the mentality of driving. No longer is reckless driving a right. Instead drivers feel a greater (and correct) sense of responsibility for being at the controls of a huge moving heavy object.

And it's not hard to be criminal (even if it should be). There were 340,000 arrests in New York City last year. Couldn't a few more of those be of drivers?

Anonymous said...

I don't totally disagree, but there are more people in the US who will flagrantly walk, or bike, out in front of cars. It doesn't happen everywhere, but there are people / places where this happens in a way it does not happen in Holland.

As an example, my mother hit a bicyclist who ran a red light. She didn't hurt him, much less kill him, but no liability would have been fair in a situation like that. There is onlt so much you can do to avoid people who simply don't care if they are hit.

I think the answer is to end the drug war and prosecutoers will get interested in neg hom.

Jonathan said...

How do the police know so quickly that it's not intentional? If you have a victim and an assailant who know each other (they went to the same church), how is this open-and-shut negligence?

m.a.d. said...

The whole mens rea/actus rea analysis is a only utilized in jurisdictions basing their criminal codes on common law. Here in New York State, there are codified "culpable mental states" that delineate different acts with their associated state of mind to determine if a crime has occurred.

So, here in NYS we have voluntary acts and omissions. We also have the 4 C.M.S. of intentionally, knowingly, recklessly and criminal negligence (§ 15 et seq. of the Penal Law).

First, we look at this gentleman's behavior, plug in the facts, and see if he fits the statute for commission of a crime. Second, we conduct a cost-benefit analysis regarding time, effort and possible outcomes of prosecuting the case. Third, we look at the potential media and political ramifications of charging a 72 yr old man attending Church.

As far as his behavior, it obviously was not an intentional, knowing act, so we are potentially looking at reckless or negligent conduct. For reckless behavior, one must be aware of and consciously disregard a substantial or unjustifiable risk that such result will occur. Nope, doesn't fit. Crim. negligence is if a person fails to perceive a subs. or unjustifiable risk that such result will occur. In both recklessness and negligence, the behavior must also be a gross deviation from the std of care that a reasonable person would exercise. So maybe this old guy has really bad eyesight, or has had 10 accidents in the last year, or ran over his wife recently; we would have to look at his driving record, his physical capacities as well as his reflexes and driving ability.

I would think in this case, the D.A. would decline prosecution due to the difficulties in establishing Crim. negligence. Also, the amount of time to investigate and prosecute the case, along with all the bad press they would probably receive, makes this a candidate for a "decline prosecution at this time," and leave it up to the family to sue civilly for any redress. Not the ideal scenario, but realistic.

PCM, as far as relating the prosecution of auto cases to the prosecution of drug cases, methinks that some of your readers have serious issues with drug laws and LE activity that is outside the scope of this auto case. Hey folks, how about we stay on topic and discuss things objectively instead of injecting your vitriolic hate of LE and prosecutors who go after drug offenders.

Anonymous said...

See vid at 1'40" to 2'10":


a former prosecutor admits it.

Anonymous said...

Some animals are more equal than others department:


MisguidedPotential said...

PCM -- many pedestrians in NYC are hit by motor vehicles, but how many of them do you think were jaywalking-or not paying attention themselves-if you had to guesstimate? I see people crossing the street without a care all the time (I am frequently guilty of this as well) and it's more difficult on the drivers' part to suddenly stop when a pedestrian pops up in the way. I just can't see a majority of drivers having the vindictive mindset of, "well maybe if I keep driving this moron will get out of my way!"

All that said, I agree that there should be some punishment involved even when it's without a doubt an accident. Perhaps in addiction there could be a point system that goes on your record, and when you have hit multiple people, say within a ten year span, there is a criminal charge for it.

PCM said...

And even when the pedestrian (or bike) isn't blameless, why not ask if the crash would have been prevented if the driver wasn't a) speeding, b) running a red light, c) on a cell phones, and/or d) otherwise not paying full attention. This is what causes accidents, not jaywalking. What bothers me is the default position that unless the pedestrian is 100% right, it's his or her fault.

And even then, many pedestrians are hit in crosswalks when they have the light or hit while walking down the sidewalk. Even these drivers generally aren't charged if they stay at the scene and aren't drunk.

Drivers need to be less egoistical and give full attention to the safety of others. That should be part of the responsibility of driving.