A Stumble Is Far Removed From a Kick

On July 16, 86-year-old George Weller plowed his 1992 Buick LeSabre through the Santa Monica Farmers’ Market. According to a preliminary California Highway Patrol report, road conditions were fine and Weller’s car did not malfunction; he was the “sole possible cause� of the accident. Yet despite the fact that he killed 10 people, no decision has yet been made on whether to prosecute Weller for the incident.

Then in August, another accident occurred. In this case, South Dakota Congressman William J. Janklow, reportedly driving 71 miles per hour in a 55 mph zone, ran a rural stop sign, killing motorcyclist Randy Scott.

Prosecutors, perhaps mindful of the congressman’s three prior accidents and his 12 speeding tickets, charged Janklow with manslaughter.

These two cases raise several difficult moral questions: When is it right to punish people for acts they did not intend to commit? Who is more deserving of punishment -- a man who intentionally kills one victim, or a man who unintentionally kills 100? Or, for that matter, a man who kills five, not intentionally, but recklessly? How should society distinguish between such cases?

Some commentators have argued that criminal prosecutions are proper in both the Weller and Janklow cases simply to send a message to other drivers -- us -- to obey traffic laws and drive responsibly. But I find those arguments misguided. I doubt most of us need to see Janklow or Weller behind bars to appreciate that message, and those who do drive irresponsibly are not likely to heed the lesson anyway.

I believe that criminal law is, or should be, about something else, something more basic, even more primal.

Under our laws, those who kill others should “pay� for the harm they have caused. Not in a literal way (although that may be required too as a result of a civil suit). But in criminal law, we make people “pay� in a deeper way. A criminal trial is a bit like a morality play. If Weller is prosecuted, it is “the People of the State of California� who will bring the action against this 86-year-old man, and if a jury convicts him, it means society is condemning Weller, the man, for his actions. A criminal conviction (or, in this case, 10 criminal convictions) is a form of community stigmatization of an offender. And then, of course, there is the additional punishment that follows, which includes the loss of liberty and dignity that comes with incarceration.

When is such condemnation and punishment deserved? Oliver Wendell Holmes once wrote that even a dog can distinguish between being stumbled over and being kicked. Similarly, we humans are sad when someone is hurt or dies, but we are angry when we conclude that a kick rather than stumble caused it. Under our laws, a harm-doer deserves blame and condemnation when he chooses to kill or makes other blameworthy choices that lead to a death.

The law draws such culpability distinctions all the time. A killer who premeditates a homicide is likely to be charged with murder, whereas one who kills in the sudden heat of passion faces manslaughter charges. Intentional homicides are usually treated more seriously than unintentional ones. In many cases, unintentional crimes are not prosecuted at all (if they don’t lead to a death).

In Janklow’s case, we believed the death was not intentional but we wanted to know whether he made a blameworthy choice by choosing to drive without taking precautions against his known diabetic condition, not to mention his known propensity to speed. These issues apparently made a difference in his trial -- he was convicted Monday of manslaughter.

As for George Weller, what blameworthy choices did he make? Are we prepared to say that being old and driving a car is a moral crime? I hope not. If we think people his age should not be driving, it is our responsibility to deny them licenses. To convict him in such circumstances would do him an injustice.

Weller reportedly feels terrible guilt about what happened, as he should, but feeling guilt and being guilty are not the same.

The criminal law is a powerful weapon. It should be used sparingly. One who kills unintentionally but as the result of reckless choices surely should be prosecuted, albeit less severely than a murderer. But we should also come to the enterprise with some humility. How many of us have not speeded, or looked away from the road to read a billboard or look at a pedestrian?

It is worth remembering that sometimes people die as the result of accidents for which no blame -- at least not heavy-duty criminal-law blame -- is justified. There is not always a “bad guy� we should punish.