The Dangers of Cycling and Favorable Legal Treatment of Drivers

I have never been a regular bicyclist.  When I lived in Iowa I either lived too far from my destinations for biking to be practical, or so close to my destinations that biking was unnecessary.  Now that I am in Los Angeles, I recognize that biking might be a quick way for me to get places, but I am far too intimidated to brave this city's traffic.  After a harrowing near-miss with a very speedy, reckless driver, I find that I am sometimes jittery around pedestrian crosswalks.

In an op-ed in the New York Times entitled, "Is It O.K. to Kill Cyclists?", Daniel Duane writes about the dangers of travelling by bicycle in traffic.  He notes that drivers who kill or injure bicyclists often receive extremely favorable treatment from law enforcement -- often receiving only a minor fine, or avoiding prosecution altogether.  Considering why this is the case, Duane writes:

Laws do forbid reckless driving, gross negligence and vehicular manslaughter. The problem, according to Ray Thomas, a Portland, Ore., attorney who specializes in bike law, is that “jurors identify with drivers.” Convictions carry life-destroying penalties, up to six years in prison, Mr. Thomas pointed out, and jurors “just think, well, I could make the same mistake. So they don’t convict.” That’s why police officers and prosecutors don’t bother making arrests. Most cops spend their lives in cars, too, so that’s where their sympathies lie.

The Economist follows up on this op-ed, reiterating the dangers that American cyclists face, and recommending that United States jurisdictions adopt laws similar to those in the Netherlands that make it much easier for cyclists to sue drivers who injure them:

To sum up: in the Netherlands, if a motor vehicle hits a cyclist, the accident is always assumed to have been the driver's fault, not the cyclist's. As explained in this FAQ from the ANWB, the Dutch tourism and car owners' organisation, "the law treats pedestrians and cyclists as weaker participants in traffic... The driver of the motor vehicle is liable for the accident, unless he can prove he was overpowered by circumstances beyond his control (overmacht). The driver must thus prove that none of the blame falls on him, which is extremely difficult in practice."

I think that the comparison between the two systems' tort laws is interesting, and while I am not sure if I agree with all the provisions of the Netherlands' approach, examining that system provides an interesting perspective.

But even if the California reformed its tort law to match the Netherlands, I would probably still be too afraid to ride a bike in Los Angeles.

Baker and Huan on Federal Overcriminalization and Mens Rea

Volume 14, Issue 2 of the Federalist Society's magazine, Engage, includes an article by John Baker Jr. and William Huan entitled, The “Mens Rea” Component Within the Issue of the Over-Federalization of Crime.  They write:

We argue that an issue at the core of federal criminal law reform is the restoration of the mens rea requirement. Addressing the erosion of mens rea requires appreciating the initial importance of mens rea, and the connection between that erosion and the growth of federal criminal law. This erosion of mens rea has been toxic to the moral legitimacy of federal criminal law. Finding a workable way to reassert mens rea within the context of so many complex and differently drafted federal criminal provisions is a challenging—but necessary—reform.

The article concisely states the issue of the overfederalization of criminal law and how many of these crimes lack mens rea (guilty mind) requirements.  Mens rea typically requires that people know the facts that make their conduct illegal, and in this way mirrors the notion that individuals who are found legally guilty of crimes should also be morally guilty.  These standards may vary, which requires the prosecution to prove that the defendant carried out the illegal act intentionally, knowingly, or recklessly (to name a few standards), depending on the type of crime charged.  Many federal standards lack mens rea standards.

One area of confusion that I am noticing in this article as well as in other discussions of federal overcriminalization stems from the reality that many of the crimes on the federal level are malum prohibitum.  This means that the crimes are wrong only because they are prohibited by law (as opposed to malum in se crimes that are wrong in themselves such as murder, rape, burglary, etc.).  Critics (including Baker and Huan) emphasize this point and illustrate the phenomenon with examples of crimes like coming in contact with migratory birds or feeding endangered animals.

In malum in se cases, mens rea requirements typically apply to the facts that make the conduct illegal and not the fact that the conduct is illegal.  If the defendant does not realize that the conduct is unlawful, this does not constitute a defense.  In federal criminal cases, however, most criticism of federal overcriminalization relates to the concern that defendants do not realize that their conduct is illegal.  Highlighting the technicality of malum prohibitum crimes, critics argue that prosecutors should be required to prove that the defendant had some level of knowledge that his or her conduct was illegal, or some intent to violate a law.  Accordingly, claiming that one is simply calling for mens rea requirements in federal crimes is misleading.  What critics are in fact calling for is an added element for the prosecution to meet -- that the defendant knew that his or her conduct was illegal.

Despite this problem (which appears in both this article and in the arguments of many other critics), the article's treatment of the overall issue of federal overcriminalization it is concise and approachable.  I therefore recommend the article to people interested in an introduction to the issue of the overfederalization of crime (despite my praises for overfederalization that I express here).

(H/T: Bill Otis of Crime and Consequences via the CrimProf Blog)

Farrell and Marceau on the Voluntariness Requirement in Criminal Law

The latest issue of the Boston College Law Review includes this article by Ian P. Farrell and Justin F. Marceau.  The full citation is Ian P. Farrell & Justin F. Marceau, Taking Voluntariness Seriously, 54 B.C. L. Rev. 1545 (2013).  Here is the abstract:

Courts and commentators commonly claim that criminal law contains a voluntary act requirement. Despite the ubiquity of this assertion, there is remarkably little agreement on what the voluntary act requirement entails. This lack of uniformity is particularly problematic because, for some crimes, whether a defendant is guilty or innocent will turn on which conception of voluntariness is applied. In this Article, we critique the various conceptions of the voluntary act requirement, and propose an alternative set of principles for applying the notion that person is only criminally culpable for crimes committed voluntarily. First, culpability requires that the actus reus as a whole (rather than merely one element of the actus reus) be voluntary. Second, the voluntariness requirement is an affirmative element of every offense, with the prosecution bearing the burden of proving voluntariness. Third, the Constitution requires that voluntariness is a necessary condition of criminal liability. These principles resolve the inconsistent understandings of the voluntariness requirement and ensure that criminal liability is limited to those defendants who are responsible for prohibited activity.

I was familiar with the earlier versions of this article, but I have not read the current version, so I am not sure how much has changed.  I warned against the authors' dangerous focus on voluntariness here.

Despite the arguments in that paper, I think that the authors are correct.  The voluntary act (or "actus reus") requirement is often presented in a somewhat confusing manner.  The requirement is necessary to both prevent people from being convicted on the basis of thought alone, and to prevent people from being punished for actions that are purely reflexive.  These dual concerns are sometimes swirled together in discussions of the voluntary act, and, as Farrell and Marceau note, the "act" portion of this requirement is not always required.

There is more to the voluntary act requirement than meets the eye, and Farrell and Marceau are effective at bringing out its complexity and proposing a more orderly analysis.

Iowa Supreme Court: Sentences of Mandatory Life Without Parole (or Practical Equivalent) for Juveniles is Unconstitutional

In three opinions released last Friday, the Iowa Supreme Court ruled that Iowa's constitution prohibits courts from imposing a sentence of life in prison without the possibility of parole for juvenile offenders.  The Court notably applied this rule to cases involving sentences that are the "practical equivalent" of life in prison without parole -- meaning that defendants sentenced to lengthy prison terms may still challenge these sentences if they result in the defendants effectively spending the rest their lives in prison.

The cases are:

State v. Null

State v. Pearson

State v. Ragland

I thought that this excerpt from Ragland did a good job summarizing the Court's holdings and reasoning:

[T]he rationale of Miller, as well as Graham, reveals that the unconstitutional imposition of a mandatory life-without-parole sentence is not fixed by substituting it with a sentence with parole that is the practical equivalent of a life sentence without parole. Oftentimes, it is  important that the spirit of the law not be lost in the application of the  law. This is one such time. The spirit of the constitutional mandates of  Miller and Graham instruct that much more is at stake in the sentencing  of juveniles than merely making sure that parole is possible. In light of  our increased understanding of the decision making of youths, the sentencing process must be tailored to account in a meaningful way for  the attributes of juveniles that are distinct from adult conduct. At the  core of all of this also lies the profound sense of what a person loses by  beginning to serve a lifetime of incarceration as a youth.  

In the end, a government system that resolves disputes could  hardly call itself a system of justice with a rule that demands  individualized sentencing considerations common to all youths apply only to those youths facing a sentence of life without parole and not to those youths facing a sentence of life with no parole until age seventy-eight. Accordingly, we hold Miller applies to sentences that are the  functional equivalent of life without parole. The commuted sentence in  this case is the functional equivalent of a life sentence without parole.

The Des Moines Register reports on the case here.

(H/T: Howard Bashman at How Appealing)

Psychopaths' "Empathy Switch"

The BBC reports on a recent study that indicates that psychopathic criminals are not devoid of empathy - rather they have a "switch" that can turn empathy on or off.  This switch may be activated if the psychopath is directed to consider the feelings of others.

This finding contradicts a common assumption that psychopaths simply lack the ability to empathize with others.  Furthermore, because this switch can be activated under certain conditions, this may point therapists in the direction of finding a way to shift psychopaths' empathy switch from its default "off" condition.

This finding has important implications in the fields of philosophy and, by extension, certain aspects of criminal law.  Psychopaths are a common thought experiment in philosophical discussions of moral responsibility.  The common question is: can psychopaths be morally responsible for their actions if their lack of empathy prevents them from understanding the full import of their actions' effects on others?  This finding indicates that psychopaths may present less of a moral problem.  If psychopaths can, in certain conditions, empathize with others, holding them responsible for harming others is an easier task, since it is possible for psychopaths to understand the full import of their actions.

By extension, this finding may reconcile some tension between the philosophical questions of moral responsibility and the practical questions of criminal responsibility.  Criminal law's intent requirements operate whether or not the defendant is capable of empathizing with the victim - if the defendant knows the criminal nature of what he or she is doing, he or she will be punished.  This approach seems to require a compromise with the notion of the pure psychopath.  The psychopath who cannot feel empathy seems to be punished disproportionately compared to other actors because this psychopath will probably view his or her actions as less morally wrong compared to an actor who can empathize with the victim, and nevertheless harms the victim.

If, however, psychopaths have the ability to switch their empathy on or off, the fact that psychopaths do not feel empathy at the time they harm their victims becomes less of a problem.  In light of this new research, it is not correct to say that psychopaths cannot view their actions in the same moral light as other actors - the psychopaths simply don't view their actions this way as often.  If lack of empathy is more of a choice than a condition, then psychopaths' failure to grasp the moral import of their actions follows from something that is (potentially) within their control.  It seems much more intuitive to fully punish defendants who choose not to understand the full moral import of their actions as opposed to those defendants who cannot understand the full moral import of their actions.

Hopefully this research leads to further techniques that can ensure that psychopaths' feelings of empathy become an obvious choice to them.  Once this choice is apparent, psychopaths will cease to be defendants who cannot feel empathy and will instead be defendants who choose not to feel empathy.