Wednesday, October 26, 2011

Minding the Reckless Driving Gap

Is there a gap in our laws when it comes to inattentive driving? Where is the line between not paying enough attention and obvious recklessness? And where is the next line, between recklessness and criminal negligence? What types of penalties should be possible for each one?

The Koua Fong Lee case was galvanizing for me. How could a jury, let alone a judge, find a man guilty of criminal negligence when he was trying to stop his runaway car?

Lee, thank goodness, was finally released after serving several years in prison. While he sat behind bars, other Minnesotans who were clearly negligent and others who were only reckless or inattentive were sentenced to less time or no time at all.

Dakota County prosecutor James Backstrom is agitating for a change in the law to create a new gross misdemeanor offense of careless driving resulting in a death. It would include jail time of up to a year.

During Backstrom's decades in office, he's seen the effect on the families of victims, and wants a more stringent sentencing option. He and others, such as state Rep. Pat Garofolo, compare the proposed law to the change that took place over time in our thinking about drunk driving. "A drunk driver rarely means to injure or kill someone," Garofalo is quoted in the Strib story as saying. "We still punish them. This is a problem that needs to be fixed and it needs to be fixed now."

Michael Friedman, writing an op-ed in response to the proposed law, made a number of excellent points. The title of his op-ed, Tough sentences may feel good, but aren't necessarily a solution, gives the gist. "...if a 90-day sentence is changed by a law to a one-year sentence, who is to say that victims such as the ones pressing Backstrom would be satisfied? Why not two years? Then someone will later decide one or two years is hardly enough; how about five? Sentencing based on the raw emotions of victim pain is not a good basis for policy."

Friedman isn't buying the argument that inattentive driving can be decreased the way drunk driving has been by criminalizing it and increasing penalties, either. "Would we prevent poor driving by criminalizing it more substantially if a death results? How many of us have veered into lanes at the wrong time, gotten distracted by something in the car, taken a turn too fast, not seen a car stopping in front, and so on? Sure, we're infuriated when others who do so put us at risk, but to raise the stakes in sorting through which bad driving behavior is willful and which is just stupid or accidental is not what we want to spend our criminal-justice dollars on. It is not in the long run going to help the emotional recovery of victim families, or improve driving generally."

Friedman closes by calling for a Restorative Justice approach to these cases.

A few days later, Backstrom responded to Friedman in his own op-ed. He insists that "The proposed legislation would apply only to drivers who cause the death of a person while taking unreasonable risks such as speeding, texting or talking on a cell phone while driving, or falling asleep behind the wheel."

That list is pretty interesting. Speeding (how many miles per hour?) or falling asleep are equated with texting or talking on your phone. Hmm. I wonder where some of the recent cases would fall within Backstrom's list of reckless behaviors. Would the young driver who didn't have his lights on at night and mistakenly crossed the center line, but was only charged with misdemeanor careless driving, fall under this new charge? On the other hand, would Koua Fong Lee have been found guilty of the lesser charge, instead of the felony he was convicted of, resulting in only a year in jail instead of eight?

Cathy Waldhauser, writing a letter to the editor in response to both op-eds, had the final word:

Why punish only the unlucky ones?

This is in response to recent proposals to increase the criminal penalties for careless driving resulting in death, and to two excellent commentaries from James Backstrom...and Michael Friedman....

I have been troubled throughout this discussion by the notion that driver-caused accidents resulting in death should be punished far more severely than those that do not result in death, while the actions themselves remain perfectly legal.

If driving while texting or talking on the phone is a mortal threat to others, which it clearly is, then that deliberate action should be illegal and punishable.

Few drivers purposely set out to cause an accident or death, so intent is not a factor. Distracted drivers who do cause an accident were simply unlucky.

Why should only they be treated as criminals while the rest of us are free to gamble with others' lives on a daily basis?

Let's penalize and reduce the controllable activity, not just the random result. My unscientific observation is that 90 percent of erratically driven cars have a driver on the phone -- and they are everywhere.
Waldhauser's point is important. As a driver, I know there are countless times when I have been distracted in a minor way, only to find myself in a dangerous situation. In all of those instances, I have been lucky enough not to have a collision.

Outlawing talking on a phone or texting while driving is probably a good idea. But it won't change behaviors related to other seemingly innocuous activities, like reaching for something that dropped to the floor or changing the radio station. And there doesn't seem to be anything we can do to make sure people turn on their lights at night and especially at twilight, judging by all the people who ignore me when I try to signal to tell them they're driving in the dark.

Maybe we just have to recognize that human beings moving around in two-ton metal boxes at incredible speeds are inherently dangerous, and there's only so much that can be done from a legal standpoint to make everyone as safe as possible.


Ms Sparrow said...

One thing that could not be taken into account in these situations is the emotional impact on drivers. When I had my accident a year ago, I was clearly a distracted driver. I was headed down Larpenteur to pick up a friend to go to a movie. It was hot and the windows were rolled down when suddenly, it started raining hard. My vision was obstructed and rain was splashing in the car windows. I was madly groping around trying to turn on the windshield wipers and close the windows. When I glanced up, there was a car stopped for a left turn directly in front of me. I slammed on the brakes and rear-ended it. Despite the fact that neither car's airbag deployed, both cars were totalled.

Ever since then, I have felt vulnerable and unsure of myself when driving. My body remembers the moment of impact. My mind remembers the trauma of standing in the rain while the cops took all the information. My heart remembers the sorrow at having caused the loss to the poor girl's car.

Was I driving recklessly? I wasn't ticketed so apparently it didn't seem so to the police. But, I still keep trying to remember in what sequence I was scrambling to turn on the wipers and close the windows--because it probably made all the difference.

Daughter Number Three said...

Ms. Sparrow, I completely agree.

Your thinking is very similar to that in Michael Friedman's op-ed. He points out that someone who kills another person with a car is most likely mentally punishing her/himself in the extreme, just as you did after a less terrible situation.

Something like a sudden rain storm is exactly the kind of thing that can happen to any of us, and if someone were killed in that type of situation, I would hate to see Jim Backstrom's law lead to a year in jail.