Public Choice and Prosecutorial Discretion

Monday, September 14th, 2009

My crime column this week looks at a hunting accident in Vermont in which a father was charged with a felony after shooting and killing his son by mistake. The case shows how public choice theory may prod prosecutors to seek criminal charges even in cases when doing so serves no real purpose.

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41 Responses to “Public Choice and Prosecutorial Discretion”

  1. #1 |  seeker6079 | 

    Sorry, Radley, but I’m going to have to politely disagree with you on this one.

    If you are out hunting as you shoot at movement alone, as in “when Kevin Kadamus saw what he thought was the movement of a turkey, he fired” you are using a firearm in a criminally negligent fashion. You fire at a target, at an identified, specific thing. I am going to assume that his son at seventeen was not difficult to distinguish from a turkey if you can see clearly. And if you don’t see clearly then you don’t fire! How hard is that to understand? And what if the movement was indeed a turkey and you hold fire? You’ve missed a chance to shoot a turkey, and that’s it. There’ll be other turkeys and other chances.

    Sorry. Somebody who uses a firearm that negligently and kills an innocent human being is quite properly within the four corners of the criminal justice system. There’s too many innocent people to worry about before we start getting our knickers in a knot about killer morons who fire guns at “movements” in the bush.

  2. #2 |  Radley Balko | 

    I understand the sentiment. But what does prosecuting him accomplish? We don’t prosecute everyone who breaks every law. Prosecutors choose cases based on policy — generally some combination of their own sense of which of the reasons for prosecution and punishment are most important and the magnitude of the crime. Nothing they could do to this guy would be worse than the punishment he’s getting for having killed his son. And the fact that he killed his son is a far better warning to other hunters about the importance of identifying your target than a manslaughter charge. So again, what purpose is served by charging him with a felony?

  3. #3 |  seeker6079 | 

    What does prosecuting him accomplish? It serves your noted deterrence factor in the criminal law in that such criminally reckless conduct is not acceptable. “Don’t do this or you will be found to be criminal” is a valid effort at deterrence.

    The prosecution also serves the purpose of sanction, which is a valid purpose of the criminal law and one that, I concede, you don’t find important enough to put on your list. The law says, basically, that such monstrously careless use of a firearm is a crime resulting in death or injury is a crime, and I think that even the most libertarian among us would concede that such a law is a valid exercise of the power of the state: none of us want our heads ripped open because some simpleton thinks that basic safety with a deadly weapon is beneath him. In prosecuting him the society says, in effect, that such behaviour deserves sanction. Whether he deserves to go to jail or not is a valid issue for sentencing, not for culpability.

    No, we don’t prosecute everybody who breaks the law. I’m very reluctant, though to put an individual who shot somebody to death into the category of “not worth pursuing”. All he had to do was follow basic firearms safety that are graspable even by excited twelve year olds; he didn’t bother. A citizen died and he should face the law for that. The fact that the citizen was his son goes to his grief, not to his — and our — rights. The state is there to protect his son, and everybody else in the woods. To assume that he has been punished enough is to treat his son as his property, isn’t it? The son was an individual human being, not his truck or bank account. He was a person and a citizen and he was gunned down through the criminal negligence of another. The son has the right to have us through the state speak for him, to hold his killer, however sympathetic, accountable. It is a disgrace to the law and the dead to shrug and say, in effect, “oh, it was just his son, so no foul there!”

  4. #4 |  Mattocracy | 

    I’m a little torn on this. Accident or no accident, you have to be held accountable if you kill another human being. I would say that especially if he had killed a person he didn’t know. But killing his son and living with it is a punishment no amount of prison time could match. But I guess that’s saying accidentally killing a stranger is worst than accidentally killing a family member.

    The real question seems to be, what if the relatives of the victim don’t want to press charges, as in this case? Should the state just be able to say, “screw you, your opinion doesn’t matter. We’re gonna fuck up this family some more whether they like it or not.”

    What if the victim of a rape decideds not press charges on her attacker which allows him to do it again to someone else? Can the DA’s office press charges in this case if the victim doesn’t want to?

    There is a lot of grey area in this. At what point do we respect the victims or their family’s wishes in the case of accidental death? I surely don’t have the answer.

  5. #5 |  seeker6079 | 

    PS: Thanks, Radley, for the riposte and the beginnings of what I think will be a well-attended debate!

  6. #6 |  seeker6079 | 

    “The real question seems to be, what if the relatives of the victim don’t want to press charges, as in this case? Should the state just be able to say, “screw you, your opinion doesn’t matter. We’re gonna fuck up this family some more whether they like it or not.””

    Mattocracy:
    The law protects everybody in the woods, not just people with familial relationships to each other. The issue of “let’s make sure that people don’t fire at vague movements in the woods by making it a crime to do so” is one of universal application, not one comparable to privity of contract.

  7. #7 |  seeker6079 | 

    One other note, Radley. You’ll note that in his case the possibility of killing his son didn’t deter him from firing, which rather puts a large hole in your notion that such a grievous harm on its own will stand as a deterrent to others. If there are people out there, like him, who are incapable of exercising that restraint on the basis of good sense and concern for their fellow men alone then the law is obliged to step in and do whatever it can to fill in gap to prevent further deaths.

  8. #8 |  Eric | 

    is it better to put this guy in prison, something designed to keep dangerous people out of the public, or require some form of public service (like volunteer) to help Game and Fish Departments to educate the concepts of identify before shooting…

  9. #9 |  VTPD | 

    There’s a bit about the case that’s worth knowing. The case has generated a lot of discussion about the very issues you raise. I don’t know how each of the following really impacts the overall conclusion, but they are no doubt relevant:

    1) Vermont State’s Attorneys are elected, and operate independant of one another. In this case, it was up to the local SA office whether to bring charges or not.

    2) This was one of a string of similar incidents. There was one in my county during gamebird (pheasant/grouse) season, one one county over during deer season, and one in southern VT who thought he was shooting a bear (no season for bear, shoot ‘em whenever). All the other ones had facts more egrigious than the Caledonia county case, but all were prosecuted aggressively.

    3) There was a LOT of debate as to whether this should be prosecuted at all, and at least for a brief while the SA office indicated that they would not prosecute.

    4) Caledonia county is tiny. States attorney is a part-time job, the court is only open part time. They really are not used to handling shit like this.

    All I mean to point out is that there was significant pressure to prosecute on people who don’t have a lot of experience in handling high-pressure cases. How that figured into the outcome is hard to say.

  10. #10 |  Tim C | 

    I have to agree that not charging the guy, regardless of whatever remorse he feels, how horrible just living with this will be, etc, amounts to the state essentially sanctioning the behavior.

    I also agree that he violated one of the most basic rules of gun safety; it’s hard to be sympathetic towards him no matter how he feels about it….

  11. #11 |  freedomfan | 

    This case reminds me of the cases of otherwise attentive and loving parents who forget their kids in their cars with tragic results, as reported in this Washington Post story that Radley has mentioned before.

    I will agree that the publicity of this boy’s death should make other hunters renew their commitment to be safe and refresh their safety practices. In that sense, it serves a purpose. But, I don’t see how a felony prosecution in this case serves any real purpose. Is there any real doubt that, even assuming he ever hunts again, this father would remember this and be an extremely cautious hunter? I find it unlikely that other hunters are going to be more cautious because they are worried about prosecution rather than because they don’t want to cause the death of a loved one.

    But, at least we can assume that the prosecutor in that case will be consistent and demand felony prosecutions of police who make mistakes, right? I am sure, if someone asked him how seriously he takes accountability, he could point to his prosecutions of police who have been careless and hurt someone. Oh, wait…

  12. #12 |  Rick | 

    I’m with seeker6079 – no one else can speak for the kid, ’cause he’s dead. The proper procedure would be a finding of fact by the court, and then judicial discretion in sentencing. (Maybe like what Eric suggested.)

    Of course, the latter will amount to the judge wetting his index finger and holding it up to the wind of public sentiment, but there ya go… seeker’s right, the alternatives are worse.

  13. #13 |  Zargon | 

    #3
    The son has the right to have us through the state speak for him, to hold his killer, however sympathetic, accountable.

    I must have missed the part of the article where the Miss Cleo contacted the son’s spirit and found he wanted unholy vengeance exacted upon his father.

    That said, while I do think this particular prosecution was primarily motivated by the “we’ve got to do something” mentality, the actual sentence isn’t an outrage – a deferred sentence and a 10 year ban on owning guns, and he probably wouldn’t have touched a gun for the rest of his life either way. Hitting him with years of prison on a manslaughter charge (which I do note the prosecutor tried to do) would have been pointlessly destructive.

  14. #14 |  Zargon | 

    #9
    I have to agree that not charging the guy, regardless of whatever remorse he feels, how horrible just living with this will be, etc, amounts to the state essentially sanctioning the behavior.

    I was hoping that the day all possible actions fall into the categories of “actions that the state will throw you into prison for” and “state approved actions” was still a few years off…

  15. #15 |  Rick | 

    @ freedomfan, the car-death analogy doesn’t quite hold. That is a relatively new, very little-publicized mental phenomenon as detailed in the Post story. If people knew how easy it was to get distracted from the presence or absence of their toddler and how quickly the tragedy could unfold, then parents would be triple-checking the back seat as a matter of course, and probably circle the vehicle as well before backing out of their driveway. (Just as post-2001 passengers know to not cooperate with skyjackers who carry boxcutters.) It’s not just folks being negligent. This is a strange psychological pattern only now getting the attention it deserves.

    On the other hand, there is literally centuries of gun protocol telling you not to pull the trigger when you can’t see what you’re aiming at.

  16. #16 |  BamBam | 

    Nothing they could do to this guy would be worse than the punishment he’s getting for having killed his son.

    But Radley, the masses DEMAND blood from someone. Who cares about compassion and the proper role of justice? Accidents should still be punished by the full extent of The Law, as determined by The State.

  17. #17 |  Mattocracy | 

    Judicial descretion does sound like the way to go here. I suppose a manslaughter conviction does’t have to result in prison time. But as Rick pointed out, that judge could still descern to be a dick about it.

    Of course, had a cop or a senator done this to their son, no charges at all. But I don’t think we need to go there in this thread.

  18. #18 |  BamBam | 

    But I guess that’s saying accidentally killing a stranger is worst than accidentally killing a family member.

    The real question seems to be, what if the relatives of the victim don’t want to press charges, as in this case? Should the state just be able to say, “screw you, your opinion doesn’t matter. We’re gonna fuck up this family some more whether they like it or not.”

    I think you meant to phrase your first statement the other way. Killing a family member will have more impact on you than killing a stranger because you have shared experiences, feelings, etc. with and for the family member, whereas the stranger has no connection to you.

    The State has been pursuing charges against the injured party’s wishes for decades, if not longer.

  19. #19 |  seeker6079 | 

    “The State has been pursuing charges against the injured party’s wishes for decades, if not longer.”

    This is, in part, because the criminal law has to represent all of the people and all of their relationships, including the umbrella concepts of public peace and order. It is up to the civil law to handle to handle the person-to-person stuff and the criminal law to handle breaches of the general peace.

    Moreover, there is an excellent argument to be made against “what the victim wants” outs in criminal law cases. Listening to the victim was one of the things that prevented domestic violence from being properly prosecuted, for example.

    The preventing — or the punishing — of the killing of one citizen by another is something that is inarguably the proper business of society as represented by the state.

  20. #20 |  seeker6079 | 

    #3 The son has the right to have us through the state speak for him, to hold his killer, however sympathetic, accountable.

    I must have missed the part of the article where the Miss Cleo contacted the son’s spirit and found he wanted unholy vengeance exacted upon his father.

    Bitchy sarcasm aside, hadn’t you considered the obvious corollary? That paragraph could have easily also read “I must have missed the part of the article where Miss Cleo contacted the son’s spirit and found he wanted his father let off the hook for ending his life”.

  21. #21 |  Zargon | 

    #18
    This is, in part, because the criminal law has to represent all of the people

    Why? Why couldn’t a criminal justice system be about victim versus aggressor rather than 300 million people who don’t even know who you are versus aggressor? Just because that’s how it’s set up now doesn’t mean that’s the only possible or reasonable way to right wrongs.

    Bitchy sarcasm aside, hadn’t you considered the obvious corollary? …

    Yes of course it was silly sarcasm. We don’t know what the son might wish because the son is dead. I consider it at least reasonably possible that the son might not wish further harm upon his father – and the opposite is possible as well.

    The point is you plainly asserted that the son had a right to have the state speak for him, but the fact is the state doesn’t know any better than you or I what his wishes might actually be.

    More broadly, I’d consider a “right” to have the state speak for me to be among the worst possible “rights” one could be inflicted with. It sure worked out for that couple in Texas who had their lives and all of their property stolen from them after the state decided to speak for them (exercise their right to be spoken for?).

  22. #22 |  Theassembler | 

    Remember folks, many every day activities carry the same potential for life-ending tragedies. Do we really need to prosecute everyone for mistakes they make that harm others? If anything, this should appy to every policeman that made a mistake and shot an unarmed individual. Prosecute them to the fullest extent of the law for each and every mistake that harms another human being.

  23. #23 |  nwerner | 

    And yet Dick Cheney wasn’t even required to attend a hunter safety training class for effectively doing the exact same thing…

  24. #24 |  Steve Verdon | 

    I find it rather amusing that many commentators are saying things like, “But who is to speak for the boy?” as if only the State is the legitimate voice for the boy. And yet, it is also the State that fails to speak for those who are the victim of police abuse. Who is speaking for Sal Culosi? The State? Hardly, it was the State that murdered him and put his killer not just back on the street, but back on the Street with a badge and gun, and arrest powers.

    And the notion of a deterrence effect in cases of accidental death are highly unlikely to supersede the deterrent already in place. The idea that such deaths would become more common without the law and these prosecutions is highly questionable given that we could, as a society, achieve the same outcome by merely publicizing these kinds of tragedies.

    Moreover, there is an excellent argument to be made against “what the victim wants” outs in criminal law cases. Listening to the victim was one of the things that prevented domestic violence from being properly prosecuted, for example.

    And therein lies the problem with the State’s solution: one size fits all. Its really nothing more than a variant on Hayek’s criticism of communist/socialists systems. Or to put it another way, one thing is not like the other. In short, the above paragraph is nothing but a red herring. Unless there is evidence to the contrary this is not about an abusive relationship between the father and son that ended in death. So while the point above might be relevant in other contexts, it is not in this context.

  25. #25 |  Fluffy | 

    I’m guessing Seeker is an attorney, and that is why he is such a douche about this.

    I’m making this guess because attorneys in general have in the last few decades completely and utterly lost touch with the concept of an “accident” or a “mistake” in favor of finding absolutely everything “negligent”. [Except what attorneys do, of course. No mistake an attorney makes is ever "negligence".]

    I suspect that the lowering of the bar for the concept of “negligence” is directly related to the fact that attorneys make money off of the negligent [whether you work as a civil attorney, or as a prosecutor, or as a defense attorney, "negligence" is good for business] and make no money off of people who make mistakes.

    So as a result anyone who engages in any activity, ever [other than lawyering] at less than 100% perfect capacity, or who gets distracted, overexcited or confused, is “negligent” and attorneys pop out of the woodwork to demand criminal charges or steep civil damages. If you show up dead drunk to be the defense lawyer in a capital case, or fall asleep at the defense table during a capital case, you’re golden as far as attorneys are concerned, but if you fuck up while you’re out hunting you better hold on to your scalp.

  26. #26 |  seeker6079 | 

    It’s not a red herring at all, Steve Verdon. The two situations are directly analogous: the shooting victim cannot claim his rights because he is dead; the domestic violence victim cannot claim her rights because if she speaks she will be dead. In neither case can the citizen stand forth and give informed, free consent for the state to walk away from its duties to protect the innocent from the brute or negligent, armed fool.

    If one accepts that the state pretty much has no legitimate role whatsoever except the preservation of private property (as some Randian absolutists do), then this a discussion can’t take place at all as only a statement from ideology can come from one side. If, however, one accepts that the state has a law enforcement role (however badly handled in the USofA) then one can, I think, accept as a fairly simple starting point that the criminal law should and does prohibit the deliberate or negligent killing of one citizen by another. If the situation is such that mercy is in order then mercy should be shown in the sentencing stage because culpability here is pretty clearly made out and — if Radley’s article is accurate — pretty much admitted by the shooter.

    Put more colloquially, he killed somebody, period. It would be a gross abandonment of the state’s duty for it to shrug, go, “oh well, he feels bad about it”, and stroll away.

    As for the arguments about the police never being charged, then aren’t some of them conveniently flipping back and forth? We go bananas here because prosecutors use their discretion to ensure that men in uniform who maim or kill are not held accountable. It’s pretty damned hypocritical for someone to say, “that’s terrible!” when they do that, and then kvetch that the prosecutors aren’t doing that here. The state either has an obligation to protect its citizens from harm at the hands of another or it doesn’t. We can’t take the position that it does, then whine when it moves to do so because, well, gosh, we sympathize with this guy. This guy deserves a criminal charge and a criminal conviction. So do the police who perpetrate their grotesqueries on the populace. Giving the DAs this much discretion merely results in it being unevenly, unfairly and unjustly applied.

  27. #27 |  seeker6079 | 

    Yes, arguing a point in good faith, with courtesy towards others on the thread makes me a douche.

    Are you seriously arguing that firing a weapon at something that you can’t see when you know damned well another person around isn’t negligent? Yeesh.

  28. #28 |  Steve Verdon | 

    It’s not a red herring at all, Steve Verdon. The two situations are directly analogous: the shooting victim cannot claim his rights because he is dead; the domestic violence victim cannot claim her rights because if she speaks she will be dead. In neither case can the citizen stand forth and give informed, free consent for the state to walk away from its duties to protect the innocent from the brute or negligent, armed fool.

    Sure it is. In the case of domestic violence the abuser feels he is justified in what he or she did. In the case in question here, I don’t think the father would feel justified. Motive is very different.

    But nice try.

    If one accepts that the state pretty much has no legitimate role whatsoever except the preservation of private property (as some Randian absolutists do), then this a discussion can’t take place at all as only a statement from ideology can come from one side. If, however, one accepts that the state has a law enforcement role (however badly handled in the USofA) then one can, I think, accept as a fairly simple starting point that the criminal law should and does prohibit the deliberate or negligent killing of one citizen by another.

    See, I’m not sure we should have the State in that role. There are plenty of examples of abuse of that power. So, I’m skeptical of your very premise.

    The difference between you and me is you still think there is a pony in there somewhere with having the State do things like enforce laws. I don’t.

    Are you seriously arguing that firing a weapon at something that you can’t see when you know damned well another person around isn’t negligent? Yeesh.

    No. Nice attempt at misleading people though. I’d like to see where someone has made this argument. It isn’t that the act wasn’t negligent, but that prosecuting it gets us pretty much nothing other than satisfying a desire for revenge.

    As a father, I can imagine the devestation Kadamus has gone through and I can’t imagine I could much to him that could make him feel any worse….well not without jeopardizing my own humanity.

  29. #29 |  Steve Verdon | 

    As for the arguments about the police never being charged, then aren’t some of them conveniently flipping back and forth? We go bananas here because prosecutors use their discretion to ensure that men in uniform who maim or kill are not held accountable. It’s pretty damned hypocritical for someone to say, “that’s terrible!” when they do that, and then kvetch that the prosecutors aren’t doing that here.

    Well, yeah I guess it would be hypocritical if it actually went both ways. It doesn’t, so it isn’t.

    Put more colloquially, he killed somebody, period. It would be a gross abandonment of the state’s duty for it to shrug, go, “oh well, he feels bad about it”, and stroll away.

    And yet the State didn’t even do that for Sal Culosi.

    See where I’m going with this? It isn’t that I want symmetry, but that I think the State just can’t do the job you want it to do without abusing it. Both in this specific case and when it comes to police officers and prosecutors (Nifong anyone?) abusing their authority.

    I’m calling into question your foundational premise here. That it is up to the State to ensure that we get justice.

    So do the police who perpetrate their grotesqueries on the populace.

    But we don’t get it, and I’m arguing we can’t…not when there is a State. The State will protect itself, and thereby its agents.

  30. #30 |  seeker6079 | 

    We were discussing whether or not the victim can speak for themselves Steve, not intent, and so the example is not a red herring, your riposte is.

    Misleading people? Fluffy pretty much argued that the only reason we are discussing this is because attorneys can’t tell the difference between accident and negligence, that in our eyes everything is negligence. Bullshit. I’m arguing that this case is criminal negligence.

    Pony? Hardly. I just don’t take the position that a democratic state is in and of itself evil. I regard it as a good that must be nurtured. It must be watched warily, constantly restrained and never completely trusted, but a good nonetheless. Most folks here don’t.

    But that’s to argue to the general when we are discussing the specific. Do you disagree with these?

    [T]hat the state has a law enforcement role (however badly handled in the USofA)?

    and

    [That it is] a fairly simple starting point that the criminal law should and does prohibit the deliberate or negligent killing of one citizen by another.

    Well?

  31. #31 |  seeker6079 | 

    You don’t think that the State can do that job without abusing it. A fair enough position. But you might want to consider which state. Other western powers have somewhat the same problems as the USA, but to nowhere anywhere near the same degree. Many (such as here in Ontario with the SIU, for example) have specialized civilian investigation units to deal with police malfeasance. Just because your cops are out of control and acting like psychotic lunatics with a get out of jail free card doesn’t mean that everyone else’s are. And if other democratic states can do it then you might want to look abroad and see what they’re doing differently before making sure that the baby’s in the bin before you throw out the bathwater.

  32. #32 |  seeker6079 | 

    Note: Regarding the two questions. You’ve answered the first and we cross-posted.

    I’m not sure, however, that I’d be thrilled with the alternatives. The problem isn’t necessarily the police forces of a democratic state; they are, in the main, infinitely superior to all of the predecessor alternatives in human history. The problem is that the United States has permitted its police forces to degenerate to those of centuries past where all power lay in the hands of what Terry Jones called “the closest armoured thug”.

    I don’t think that there is a disconnect between the fact that in America there is no limit on the influence of money on the political process on the one hand and that the politicians (and thus the police) are out of control of the citizenry on the other. Other democratic states take it as a given that there is a balance of interests and start and proceed from there. Americans, for all of their myriad of other magics and virtues, tend to be absolutists, especially on the right, and no civil democratic society can function in a mental framework of manichean absolutes.

  33. #33 |  Sam | 

    Never thought I’d say “I agree with “, but I agree with seeker. However much I dislike the justice system in the US this is pretty much the definition of what I think the state’s role in individual life should be.

  34. #34 |  seeker6079 | 

    Just one example:
    The RCMP tasered and killed a mentally disturbed man in the Vancouver airport. This shocking act was captured on tape. Instead of the “yeah, so?” attitude of American authorities there is currently a public inquiry where the BS police stories are being cross-examined and — to put it kindly — found wanting. The force and the officers in question are discredited and humiliated and the scandal may result in the RCMP losing its cherished and long-held ability to investigate itself. Given the near-folkloric status of the horsemen this is huge.

    PS: Sam, thanks. I’m used to being disagreed with here!

  35. #35 |  johnl | 

    Example of where the DA was congratulated for not prosecuting infanticide, Orange County CA. This decision was widely praised. http://articles.latimes.com/2003/oct/04/local/me-hotcar4

    The “public choice” in the title is strange. Prosecutors aren’t getting revved up reading Arrow and Downs and then promoting accidents to crimes. What you mean is that there are perverse incentives that lead to overcharging. Arrow et al are not called for. It’s almost like you had some hidden incentive to bring up some ideas that Reason hasn’t worked over in a while.

  36. #36 |  Caby Smith | 

    Just curious… if a father is driving is son to school one morning and runs a stop sign (let’s assume here that it was an accident as we are assuming the shooting was an accident), and the man’s son is killed in the resulting crash… do we normally prosecute the father for manslaughter? This is a question because I don’t know the answer… however; the two situations seem similar to me. If you’re not prosecuting one, why prosecute the other?

  37. #37 |  scottp | 

    I have no sympathy for either one. If your idea of fun is to run around in the woods wearing camouflage while killing wild animals, you’re a dick.
    Karma’s a bitch sometimes.

  38. #38 |  Highway | 

    I agree with Radley. I think that a lot of this actually fits what I’d consider malicious prosecution. I remember a year or so ago when this same kind of thing came up in a Reason article about parents who accidentally leave their children in a closed vehicle and they end up dying.

    The only thing I see being served is the mass’s lust for the blood of vengeance.

  39. #39 |  Nick | 

    So I’m wondering. If a man shoots at “movement” or “sound” and kills someone else’s kid, should he be prosecuted? Do we even dare call it negligent? Does it matter whether he is nonchalant or feels really bad about it?

    re: Caby’s Smith’s question. I suspect that if Kadamus tripped and accidentally fired his gun, he probably would not have been prosecuted. What he did is difficult to characterize as a hunting accident. He deliberately and intentionally fired the weapon in a situation where he didn’t know what he was shooting at. That’s not like running a stop sign because you are momentarily distracted. That’s like running a stop sign because you are driving with your eyes closed.

  40. #40 |  Steve Verdon | 

    Yes, it is a red herring because the two situations are not analogous. Yes the boy can’t talk for himself, but the victim in spousal abuse can, and often do. Granted, it isn’t usually right after the crime(s) occur. In the domestic abuse case the issue is psychological, with the accidental shooting it is not, the victim is dead. You want to pretend the two situations are the same, when they aren’t.

    Misleading people? Fluffy pretty much argued that the only reason we are discussing this is because attorneys can’t tell the difference between accident and negligence, that in our eyes everything is negligence. Bullshit. I’m arguing that this case is criminal negligence.

    No, that is not true. I don’t see very many people if anyone at all arguing everything is simply negligence. That is were motive comes in which you’ve carefully avoided here. I have to say this part of your comment is not very honest at all.

    Pony? Hardly. I just don’t take the position that a democratic state is in and of itself evil. I regard it as a good that must be nurtured. It must be watched warily, constantly restrained and never completely trusted, but a good nonetheless. Most folks here don’t.

    If we have to watch and be on our guard against it, then it is not something good, but something bad…potentially very bad. You’re own comment is inconsistent in a very serious manner.

    [T]hat the state has a law enforcement role (however badly handled in the USofA)?

    I’m seriously begining to doubt it.

    You don’t think that the State can do that job without abusing it. A fair enough position. But you might want to consider which state.

    There you are looking for that pony again. I’m saying I don’t think the State–i.e. any State–can do it without abusing it.

    The problem is that the United States has permitted its police forces to degenerate to those of centuries past where all power lay in the hands of what Terry Jones called “the closest armoured thug”.

    Is it that or is it a case of the natural evolution of the State? If it is the latter then Canada will eventually go the same way. Look at the Nanny State in England, its out of control.

  41. #41 |  Lloyd Flack | 

    Seeker6079,
    While sanction has a place in morality I’m not certain that it has a place in law. I say this because sanctioning other’s wrong doing so easily turns into a means of parading your own righteousness. It is morally the most dangerous of motives for punishment, dangerous to the character of the punisher. It is a standing invitation to self righteousness. Many, perhaps most of the abuses dealt with here have sanction as one of the primary motives. I would suggest that it plays a very large part in the drug war.

    If you are going to have sanction as a motive for punishment you must see punishment as a necessity not a good. If you don’t hate doing it then it is very likely to get out of control and lead to disproportionate punishments. The sanctioner can very easly, and often does, become far worse than the sanctioned.

    Sanction in the criminal justice system should be a side effect of the other motives. Deliberate sanction should be through condemnation.

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