Result-based Crimes and Bad Luck

If two similarly situated people engage in the same criminal conduct, they should receive similar punishment, right? Often they do. But criminal law in Colorado frequently dictates dramatically different punishment for the same conduct, depending on the outcome of that conduct. The problem for the criminal justice system is that the individual is often not able to control that outcome in any meaningful way.

There are some scenarios where the individual is in a reasonable amount of control as to the outcome. For example, if a man takes a baseball bat to his neighbor’s car, he commits criminal mischief, a crime that turns from a misdemeanor to a felony if the damage is over $1000. Absent unique circumstances, the man will know that more swings and harder swings will cause more damage. Theoretically, by punishing greater damage more than lesser damage, the punishment better fits the crime, and may deter the man from taking an extra swing of the bat. There are plenty of exceptions, but this generally makes sense.

A more challenging example is how DUI and vehicular assault/homicide sentencing works in Colorado. Anyone who drives while impaired takes some chance of killing another person. Two hundred people might drive under the influence for the first time and not hurt anybody, and they will likely get probation, rather than jail. But if the 201st intoxicated driver happens to kill somebody, he will be charged with vehicular homicide and will likely be looking at serious prison time, regardless of whether his BAC was a moderate .06 or a more outrageous .25, regardless of whether his driving was very bad or just very unlucky.

It’s a fair question whether such disparity is appropriate. On the one hand, many people will compare the loss of life to a few years in prison and say the vehicular homicide defendant got off easy. But such an attitude is based more on retribution than other, more laudable goals of the criminal justice system. Retribution sometimes appeases an understandably grieving victim or victim’s family. Sometimes it gives a sense of closure to a community. But at what cost?

In so many cases, retribution creates another tragedy. A defendant’s life is upended, never to be the same. His family may be wrecked apart. If such punishment achieved meaningful deterrence, it would be somewhat different. But how much deterrence is achieved here? Conduct can be deterred, but results are often unpredictable. Given how many people drive while under the influence in Colorado, it is hard to say that many of them are considering a multi-year prison sentence when they do so. It is like a reverse lottery—there is a moderately stigmatized conduct, driving while under the influence—that, say, 99% of the time will not seriously injure anybody and will lead to probation. But everyone who engages in that conduct has a small chance of accidentally killing a person and going to prison for a long time.

I don’t think people factor in small chances of tragic outcomes, and so there is likely little deterrent value of extremely harsh sentences for vehicular homicide. The main deterrent value comes from a generally tough DUI sentencing regime, which Colorado has. Thankfully, Colorado has balanced the need for deterrence with some understanding and tolerance, such that first time offenders usually receive probation instead of jail. Where possible, the step-up in penalties should be more closely tied to aggravated conduct, rather than the unfortunate but unpredictable results of similar conduct.

A good contrast to this is the rationale for stepped-up penalties for hit and run when injuries are involved. At the time a defendant leaves the scene of an accident, he is often capable of a good guess (if not actual knowledge) as to whether there is any injury to another party, and whether those injuries are serious. The punishments can range from 12 points on a driver’s license to years in prison, depending on the extent of the injuries. This helps fit the punishment to the conduct. It also works to provide additional deterrence to somebody who is considering leaving the scene of a more serious accident. This makes it more likely that a driver will stay on scene and call 911, with a chance of helping out the injured party. There are exceptions, and situations where there are surprise results (certainly, death is possible even in a minor accident), but the law generally encourages moral and socially beneficial conduct.

Many result-based crimes and sentencing enhancements can not boast such finely-tuned criminological purposes. Though crime by crime, there are some that serve valuable deterrence and other goals, so many are mere dart-throws at justice, where chance plays too large a role.