Drunk Driving and Mens Rea
Well, here goes nothing! This is my first post on TEM and I am glad to be here. Most of my philosophical inspirations come from the news and other media (I am somewhat of a headline junkie). I anticipate that many of my blog entries will concern such topics; here is the first of such postings - I hope it is of some interest to you.
Last week, an episode of a popular talk show (Oprah, actually) featured the tragic story of a family that was deeply impacted by a drunk driving accident. The case was interesting from a legal standpoint because the young man involved was charged with second degree murder instead of involuntary manslaughter. (The victims were Katie Flynn and Stanley Rabinowitz and the driver was Martin Heidgen, if you want to Google for details).
Public opinion concerning this and other drunk driving cases seems especially harsh. Anecdotally speaking, I have found that many people think that drunk drivers who kill should be convicted of first-degree murder and maybe even face the death penalty. These sentiments are especially understandable coming from people whose lives have been profoundly affected by drunk driving. I cannot comprehend, for instance, the horror that Katie Flynn’s mother experienced when she discovered her daughter had been decapitated in the crash. Surely the drunk driver must be held responsible for his unspeakable crime. However, I am of the mind that intuitions are not enough to justify punishing Martin Heidgen or any other drunk driver. And, the more I thought about the circumstances of drunk driving cases, the more conflicted I became in my opinion as to what should become of the offenders.
Traditionally, systems of punishment seem to operate in accordance with two fundamental principles: lex talionis (retributive justice, a topic for another time) and mens rea (guilty mind - intent). Typically, premeditated and/or intentional crimes are considered more immoral than those which are unintentional or unforseen, and offenders are therefore sentenced to harsher punishments. Exceptions are sometimes made for those persons who are incapable of mens rea, such as young children, the mentally handicapped and the mentally ill. In a system where mens rea matters, a burden is placed on the prosecution to prove the state of mind of the criminal; such proof can mean the difference between a felony and a misdemeanor or even a conviction and an acquittal.
Evaluating the presence of mens rea in drunk driving is problematic because alcohol is an intoxicant that impairs one’s ability to reason. Like a child or a mentally retarded adult, a driver who has been drinking might lack the capacity to intend to kill anyone or even to appreciate the risks of her being behind the wheel. Presumably, higher levels of alcohol consumptions entail diminished capability for having mens rea or forseeing the risks of driving. In the absence of mens rea, we may not punish a drunk driver as severely as our intuitions dictate we should. Someone who has had two or three drinks might be physically unable to drive safely, but still functioning well enough mentally to recognize that she should not be driving. If this person were to drive anyway, she would be acting in a consciously reckless manner, fulfilling the mens rea requirement for punishment. Take now someone who has had fifteen or more drinks. She is barely coordinated enough to turn the key, and yet manages to drive home without any recollection of the trip. How can this driver’s mind be considered “guilty” in any way when it was physiologically stripped of its capacity for reason and was essentially performing only autonomic functions? Ironically, the more one has had to drink, the less responsible she becomes for her actions.
The matter is complicated (and the analogy weakened) by the fact that drunk drivers choose to drink, whereas children and the mentally ill don’t choose their impaired state. However, I’m not sure how important this fact really is. The only fully-reasoned choice that drunk drivers make is to drink. The subsequent choice whether to drive or not is made in the drinker’s more or less inebriated state - a state which might preclude mens rea. The reasoned choice (to drink) is only sometimes correlated with the un-reasoned one (to drive drunk), and so we may not take the choice to drink as identical with the choice to drink and drive. As such, drunk drivers might lack mens rea for driving, the choice regarding the criminal act.
Please do not construe this discussion as a defense of drunk drivers. I am merely interested in how we might resolve the mens rea paradox which suggests that more drinking means less responsibility. Perhaps another concept might step in to fill the mens rea gap. In utilitarianism, for instance, punishing a drunk driver might be the right thing to do even though she lacked mens rea. Or maybe the disanalogy between children or the mentally ill and drunk drivers is significant enough to reject my argument outright. In any case, I suspect that there is a good reason out there - mens rea or not - for punishing the drunk drivers who wreak havoc on our roads.
it seems to me that after S takes 15 drinks it is foreseeable (that is, it would be a mark of recklessness on S’s part if she did not expect) that she would make poor decisions. presumably, she could also foresee that driving might be one of them (ie if she had keys and a car in the vicinity). i take it this is true just in the same way its true that it would be reckless to have 15 drinks when one foresees that she might have to make some important decision. we could imagine the person drinking to feel less stressed before the decision and not intending (at the time in which she decided to drink) that she make a bad decision if the time comes and then being incapable of having intentions once she has finished all the drinks. that seems reckless to me.
I agree that S should forsee the increased likelihood of bad behavior when drinking, and that ignoring this risk is reckless.
I think the point that I failed to make clear is this: drunk drivers are reckless, but many of them (especially the drunker ones) lack the capacity for mens rea in the sense typically required of more severe charges. So, if we would like to punish them very harshly, then we need a justification other than mens rea. (As a side note, current criminal law does allow some particularly reckless drunk drivers to be charged with murder instead of manslaughter. I am not sure what the philosophical justification for this exception to mens rea would be, if there is one at all!)
Thanks for reading & commenting
oh ok sorry i guess i missed the point. my claim was just the case of 15 drinks is relevantly on all fours with the case of 3 drinks. in fact, i think it is reasonable to claim the 15 drinks case is worse because it is probably more reckless.
I definitely understand your sentiments about driving after 15 drinks being at least as reprehensible as after 3 drinks. Hopefully, someone brighter than myself can come up with a justification (other than mens rea) for correspondingly harsh punishments!
Pam,
I’m not an expert on the law, but I do know that 2nd degree murder statutes are, at least arguably, be applicable to drunk drivers who kill people (I don’t know how often prosecutors charge drunk driving killers with 2nd DM rather than, say, 2nd degree manslaughter or vehicular homicide, which carry significantly lesser sentences). One of the ways in which one can commit 2nd DM is by engaging in conduct that shows a “reckless disregard for human life” and results in someone’s death. In prosecuting someone for 2nd DM the prosecutor does not need to prove intent, which is, as far as I’m aware, a necessary condition for 1st DM.
So the fact that while one is drunk one is not capable of the requisite mens rea to commit murder can be irrelevant to a charge of 2nd DM, because the reckless disregard for human life is, supposedly, shown in one’s drinking excessively to begin with in a situation in which one may end up driving while drunk, and the causal chain leading from that reckless behavior to the death one is charged with is self-evident.
I for one am not opposed to charging drunk drivers who kill with 2nd DM; I do think that excessive drinking by one who, before he drinks, is aware that he may drive after becoming intoxicated (and losing the ability to make rational decisions) exhibits a reckless disregard for human life that warrants such a charge. I’d like to think that such charges would also have a deterrent effect on others who might otherwise drink and drive, but given the propensity of so many to make incredibly bad choices when it comes to alcohol consumption, perhaps this is mere wishful thinking.
I’m not sure why having different choices to drink and to drink and drive means that drunk drivers lack mens rea for drunk driving. If someone drives to a party or a bar with the intent to consume alcohol and then drive home, isn’t that an intent or mens rea we can use to justify punishing them? The intent came before the choice to actually drive after becoming drunk, then, but do we have to locate the intent immediately before the decision to drive in order to justify punishment based upon that intent?
I mean, consider the imaginary case of a mafia boss who happens to be an expert hypnotist. This boss makes you an offer (and, contrary to the movies, an offer you can refuse) : he will pay you a bunch of money in return for hypnotizing you for the duration of an evening. You know it is likely going to be for a criminal act, but you accept anyways. As a result after you are hypnotized you go and kill someone.
Now, similar to the drunk-driving case, you have no intent to kill that person when you kill them. Unlike the children and the mentally ill, but similar to the drunk driver, you chose to put yourself in this position (that you know would greatly increase the likelihood of your committing a crime). Now, in your second comment you admit that the driver does this, and is behaving recklessly but that they still lack the mens rea necessary to justify harsh punishments. But why is this so? Can’t the behavior be so reckless that the intent to put oneself in that situation justifies the harsher punishment? I’m pretty ignorant of the philosophy of law so probably I’m not grasping the appropriate sense of mens rea, but it seems that the intent to behave sufficiently recklessly should be enough to justify pretty harsh punishments.
Brian,
Thanks for reading & commenting. As far as I know, you are 100% correct about the law as it stands - some offenders, those who show reckless disregard for human life, are eligible for the elevated charge or 2nd degree murder whether they have displayed mens rea or not. As such, you are also correct that mens rea is irrelevant, provided that the prosecution can prove reckless disregard.
However, I am more interested in what the possible justification for including reckless disregard in 2nd DM might be in the first place (starting with the assumption that many people, like you and other commenters, support such punishments). The continuums of increasing degrees of mens rea & increasingly severe punishments seem to fit together naturally. For moral responsibility, typically one must have rationally undertaken the behavior in question and had alternate possibilities (I realize this is controversial, but it will have to suffice for now). In cases of committed by unintoxicated persons, we punish someone who killed in the “heat of passion” less severely than someone who committed a premeditated murder because the former was acting in a more instinctual and less rational way and couldn’t have helped herself.
I find the drunk driving case interesting because it highlights the problem with mens rea requirements for punishment. Not only is the mens rea component in fact lacking in many drunk driving cases, it must be lacking because of the intoxicating effects of alcohol. However, most people seem to have strong intuitions that drunk drivers (and other reckless individuals) should be punished, sometimes severely. So, how can we justify the punishment of such individuals? I can think of two viable options, both of which you mentioned. First, we could hold the drunk driver responsible because of the “causal chain” she initiated. But, the “bad consequences” justification for punishment is a slippery slope - I’m sure you can imagine the problems as easily as I can. Why punish some people for the bad consequences for their actions and not others? Does it matter whether a person knew that their act would/could result in bad consequences? Etc, etc. Second, we could punish reckless people for their actions in order to deter others from reckless behavior. Deterrence, too, is problematic - is it just to make an example of some criminals in order to scare away would-be offenders? How much deterrent value justifies how much punishment? Etc, etc.
My bottom line is this: Punishment for reckless behavior is difficult to justify. Punishment for drunken driving is particularly difficult to justify - but we’d best come up with some reason since our society administers such punishment every day. Appeal to mens rea doesn’t get us anywhere in this case, because a severely intoxicated person is incapable of having it. The bad consequences or deterrence justifications might suffice, but either one would have far-reaching consequences for the rest of the legal system if adopted consistently across the board in criminal law.
Jordan,
Thank you for your comment and the thought experiment. I have a few things to say in response:
1. “If someone drives to a party or a bar with the intent to consume alcohol and then drive home, isn’t that an intent or mens rea we can use to justify punishing them?” I’m unsure about this. The possibly relevant difference between this case and an intent to murder case lies at the moment of no return, I’ll call it. When someone intends to commit murder (and she is not drunk or otherwise intoxicated, mentally ill, etc.), she has up until the moment she pulls the trigger to rationally reconsider and back out of the intended action. When someone goes to a bar and plans to drive home - or plans NOT to drive home - she too has until the moment she starts the car to reconsider. However, any such reconsideration will be under the effects of the alcohol. For instance, I have heard of drunken drivers thinking, at the time, they were even MORE capable of driving after 10 drinks than after a few (due to the profound effect of increasing amounts of alcohol on the capacity to reason).
2. I like this thought experiment alot. I have a problem with it, though - and that is the epistemological factor. Probabilities will end up making or breaking the scenario. Let’s say that you have reason to think that there is a 90% chance that Mr. Mafia will use you to commit a crime. On Monday, you are hypnotized and the mafia boss sends you to do a hit. On Tuesday, you are hypnotized again. The probability is exactly the same, but this time Mr. Mafia uses you to run a benign errand instead. Why are you punished for allowing yourself to be hypnotized on Monday but not Tuesday? Merely because the consequences turned out badly? (see my comments to Brian above about the “bad consequences” justification for punishment of reckless individuals). What probability marks the threshold of recklessness? How can you know the probability? And how can we know you knew the probability? Furthermore, the empirical facts might work against this kind of example. Perhaps we diligently compute the actual probability of an individual going out to drink, ending up driving and getting in a deadly accident. We find that this probability is exceedingly small. Would this prove that the drunk driver was not reckless?
3. “Now, in your second comment you admit that the driver does this, and is behaving recklessly but that they still lack the mens rea necessary to justify harsh punishments. But why is this so? Can’t the behavior be so reckless that the intent to put oneself in that situation justifies the harsher punishment?” Due to the problems I have mentioned about irrationality at the moment of no return and epistemological probabilities, I’m unsure that behavior can be “so reckless that the intent to put oneself in that situation justifies the harsher punishment.” If the probability of the bad consequences occurring were very, very high (say, 95%) this might justify the harsher punishment but also serves as intent itself. After all, not everyone who does have intent succeeds in their commission of their crime (hence the distinction between murder and attempted murder). In this regard, two people who have the same criminal behavior - one who is wildly reckless and one who has genuine intent - might find themselves on a moral par (each having a 95% chance of doing the crime). We wouldn’t have to bother with justifying punishment for recklessness at all, we would merely contend that the perpetrator did, in fact, have intent.
Pamela,
Thanks for your response to my comment. You’re right that the causal chain justification that I alluded to has certain problems, despite the fact that it is often used in our legal system. Nagel’s famous “moral luck” case, which was precisely the drunk driving case that we’ve been discussing, highlights this problem nicely.
We tend to think that individuals ought only to be punished for doing things for which they are responsible, in whatever the morally relevant sense of responsible is. In Nagel’s case one drunk driver loses control of his vehicle and swerves onto the sidewalk, and fortunately for him no one is injured; the second drunk driver, on the other hand, loses control, swerves onto the sidewalk, and kills an innocent child.
Now in this case it seems that both drunk drivers behaved equally recklessly, and it was just a matter of the second’s bad luck that a child was on the sidewalk when he lost control of his car. And yet most people have the intuition that the second driver should be punished much more harshly, in virtue of the fact that his recklessness caused a death. Our legal system functions in accordance with that intuition; the first drunk driver is likely to receive very little punishment, while the second may face manslaughter charges.
The problem here, which Nagel thinks is simply intractable, is that the intuition that the second driver should be punished more harshly is extremely strong, despite the fact that we tend to have the incompatible thoughts that punishment must correspond to moral responsibility, and that in our case the degree of recklessness (and therefore responsibility) is equal, and the disparity in consequences is purely a matter of luck.
The only way to bring our legal practices in line with our thoughts about responsibility is to either refrain from punishing the second driver for anything more than DUI, or to punish those convicted of DUI to the same degree as those convicted of vehicular or 2nd degree manslaughter. Most people will not find either of these options attractive; I don’t, and so I’m not quite sure what the right thing to think about these cases is.
From a consequentialist perspective, it would seem Nagel’s bifurcation and “intuition” hold, since different “consequences” follow. But, would it hold for an “act-utilitarian?” If the “act” itself, DUI, is barred, are considerations of the consequences subject to consideration? But, if the “act” is the locus, how can the utilitarian calculus incorporate the consequences, when the “act” is the target? Would a “greater” good for a “greater” number be affected by splitting “act” from “consequences,” and then “adding the back,” in the final calculation? If so, I suspect most would “penalize” the consequence due to death, and ignore the accident.
The larger problem, for me, is how an utilitarian can claim to look at the “act,” since its the utility of the “consequences” is purported to be the final determinant? In making a value judgment, is the target of valuation the “act,” “consequence,” or both? Does the “value rule” apply to all cases, or just this case? Who decides? And what would that “rule” be?
Finally, are any “acts” intrinsically “evil” or “unjust?” Is it the “act” or the “consequence” that determines? Or both? What if a dictator lines-up hundreds of citizens to “shoot,” but the gun does not go off? No harm? No consequence? Or would “psychic” harm apply? If he “reloads,” and “shoots” again, this time killing the citizens, has he committed two “unjust” acts, or one with Harm Degree -1 and the other with Harm Degree +5?
[...] Lord presents an intriguing look at Drunk Driving and Mens Rea posted at The Excluded Middle. Does the driver bear reponsibility for his actions, given their [...]
[...] 25th, 2007 · No Comments …is here. It includes Pam’s post “Drunk Driving and Mens Rea.” Good [...]
I have two points to add, to focus our intuitions - one from Jewish Law, and one from Nozick’s libertarian political theory. I realize that for a lot of people neither of these will carry much weight, but I think they are at the very least interesting historical notes.
First, the Law of the Goring Ox: “When an ox gores a man or a woman to death, the ox must be stoned, and its meat may not be eaten, but the ox’s owner is innocent. However, if the ox was in the habit of goring, and its owner has been warned yet does not restrain it, and it kills a man or a woman, the ox must be stoned, and its owner must also be put to death.” - Exodus 21:28-29
If I recall correctly, this law is an important precedent in the Talmud about culpable negligence generally. The point is that when someone is culpably negligent and endangers others we hold that person responsible for the consequences of his actions - the Torah holds him responsible even up to the point of inflicting the death penalty if his actions result in the death of another.
On the second point, in Robert Nozick’s Anarchy, State, and Utopia (which I don’t have handy, so I can’t cite page numbers), Nozick argues that the libertarian state may prohibit actions that have a high probability of violating the rights of others, provided that it compensates the individuals involved for their loss of utility. (This is important to Nozick’s argument as it allows him to argue that the state can prohibit “independents” - those who “opt out” of the state - from independently enforcing their rights against its citizens, since they may use unreliable procedures to determine guilt or innocence, provided it compensates them by enforcing their rights for them.) But, on this libertarian theory, when you violate the rights of another even if it was accidental and you were not culpably negligent, you are responsible for compensating that person. Issues of mens rea, intent, culpable negligence, etc., may be relevant to determining the degree of retributive justice, but they make no difference to the requirement of compensation. (But how do you compensate someone for the loss of a child? No amount of cash will suffice.)
The only point I’m trying to make here is that many people have thought, and I think this is a perfectly reasonable position, that individuals are fully responsible for negative consequences of their culpable negligence. I’m presonally unphased by the “moral luck” case.
The mens rea element here is, as others point out, based on the decision to drink without putting the necessary precautions in place to prevent later reckless behavior. If later drunk driving is a foreseeable consequence of the decision to drink, then the mens rea element is present. This is analogous to felony murder: many jurisdictions reserve their most severe category of homicide for deaths that result in the course of the commission of a felony. Thus, even if my only mens rea is for the commission of burglary, I am on the hook for felony homicide if my partner accidentally kills the owner of the house while we’re inside.
Kenny,
Thanks for commenting. That is an interesting Talmud excerpt, and I appreciate the Nozick take on this as his book has been lingering on my to-read list for some time. I am particularly interesting in Nozick’s difference between retributive justice and justice via restitution.
mrnorwood,
Thank you for your comment. I do agree, and have noted in other posts, that the drunken driver does have mens rea of the reckless nature. My discussion of the drunken driving case was supposed merely to illuminate the peculiar fact that, in drunk driving situations, the agent not only does lack full mens rea but must lack full mens rea because of her physiological state. And, while you are factually correct about the law’s stance on deaths which occur in the commission of a felony, that contingent matter of law doesn’t have much bearing on whether drunk drivers do or can have mens rea of one type or another.
[...] at TEM) June 27th, 2007 — Pamela J. Stubbart This post originally appeared at The Excluded Middle. It appeared in the 49th Philosophers’ Carnival [...]
Pam,
Oops, I didn’t see that you had replied to my comment.
I like your response in terms of probabilities in (2) and (3). So let’s try another thought experiment!
Let’s say we have a gun which operates similarly to one used by someone playing russian rollette. That is, there is a single live bullet and x blanks and order of the live bullet and the blanks is randomnized. Let someone fire this gun at another person (and let them be a perfect shot, say). The probability that the person will kill the other person is 1/(x+1).
Now, wouldn’t we still consider this person to have murdered whoever they shot if a bullet came out rather than a blank, even if the probability might be somewhat low, precisely because the person had the intent to put the other person at some (known) risk? It seems here we can quantify this probability and the person who shoots the gun can know what it is, and we can know that they know what it is, etc.
Now, this doesn’t address the problems for “bad consequences,” justification of punishment but couldn’t the intent to put someone in (known) danger just itself justify punishment? It also does not address more general problems about moral luck and how it should work out in punishment. But maybe it is a case that can deal with some of your probabilistic worries? Although I guess not all, as the “threshold” problem would remain.
[...] most cases, the applicable crime is involuntary manslaughter but law isn’t my subject today. Pam Stubbart of The Excluded Middle wonders about the seeming lack of mens rea in this kind of case. (via Philosophers’ Carnival [...]
[...] 6th, 2007 · No Comments Pam’s post “Drunk Driving and Mens Rea” is being discussed by David Fryman [...]
Drunk driving can be stopped. Even where drunkenness is rampant. I’m thinking about Sweden, where I taught for several months during the 1990s. At parties I attended, many Swedes were drinking. But, having taken on just one beer or one glass of wine, they would call a cab to return home. Next morning they would all come back for breakfast at the host’s home! Living in Linkoping in an apartment, we noticed that Saturday nights were noisy, with many drunken kids out in the streets on foot ….but no cars. I never saw anyone who had been drinking insist on driving a car. Evidently, a Swede’s friends and relatives take such exception, they rate this ban so highly, the disapproval is so complete and moral outrage is so great – even drunken people won’t drive……. It was amazing to observe their system in action. It worked because of punishment and group pressure. The whole system reminds me of the stigma, the bans, the ostracism placed on homosexuality here in the United States when I was a kid.
DUI is a very emotional topic.
One problem is that the crime of DUI, is not always the same as ‘drunk driving’.
Rather the state declares a certain about of alcohol, .08% BAC, as a level at which it considers someone intoxicated. Even the worlds best driver, who shows no signs of intoxication, is considered by law to be intoxicated at .08% BAC.
Millions of people go out, and responsible drink, and then responsible drive safely home each year. The problem seems to be a small group of alcoholics, who continually drive drunk.
Another problem is that the statistics on ‘alcohol-related’ traffic deaths are very misleading.
[...] colloquium really helped me make sense of a discussion we had here at EM a while back: drunk driving & mens rea. A paradigmatic example of this sort of responsibility attribution is the case of drunken driving. A [...]