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July 25, 2010

Notable front-page pieces from the Sunday NYTimes

These two long pieces appearing on the front-pages of my New York Times both seemed Sunday blogworthy:

July 25, 2010 at 07:58 AM | Permalink

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If someone can explain the difference between gross negligence and criminal negligence, I'd appreciate it. The doctor that took Ambien before driving and killing 3 people is guilty of one of those. However, a thirty year sentence is more likely for an intentional homicide. Unless he knew the victims and wanted to kill them, someone has to explain the sentence.

If you stop all cars and test the drivers, about 10% of the drivers are legally drunk. Obviously, the overwhelming majority cause no damage. Prof. Berman wants a greater clampdown on intoxicated driving. The clamping should be restricted to those who cause damage. They are likely to be aggressive and impulsive as well. I agree on a clampdown on impulsive and aggressive, not to one on an alcohol blood levels.

Posted by: Supremacy Claus | Jul 25, 2010 8:36:29 AM

Unfortunately, we have a culture of prosecutors who think prison is the answer for just about everything. Tragic as those deaths were, I am not sure the doctor’s 30-year sentence actually helps society. Better to impose steep restitution, and let him work outside of prison to repay it.

Posted by: Marc Shepherd | Jul 25, 2010 10:55:11 AM

The doctor involved in the fatal crash was carrying around quite the stew of drugs in his system. I am not sure it is unfair to hold him accountable for understanding the risks of that. That being said, there are some very odd cases out there. I recall one from my district not so long ago where a psychiatrist was found at midnight or so driving around in a small town, weaving all over the place, until she finally came to rest when she plowed her car into a parked suv. She had no idea she was driving her car, and was still in her pj's. She followed at the time a nightly routine of coming home from work, having a glass of wine with dinner, watching tv for a bit and reading, and then going to bed at around 10:30pm, at which point she took one Ambien as prescribed for her for sleep. This had never happened to her before, but it is a rare but still occasional side effect of Ambien and related sleep aids.

Fortunately, nobody, including her, was hurt. Other than, of course, the suv. The case was presented to us as one of reckless driving and DUI. We ended up declining it. The available evidence showed she didn't even know she was driving. Given all the circumstances, it seemed a particlarly inapt situation for employing criminal sanctions, because, after all, she had no mens rea at all, and no reason to believe that such a thing would happen to her. it had never happened before.

But what if she had been the one to run into the pregnant woman and her child? Would the fact of way more serious consequences properly alter that calculus? I'm not sure that it would, or that it should, because the principal point of the criminal law is, or ought to be, to respond on behalf of society to some kind of moral culpability, and i am not sure we had any here.....but still...2 dead people.... hard cases.

Posted by: Grotius | Jul 25, 2010 5:13:17 PM

I would like to introduce the defense bar to outcome bias, one of 100 cognitive biases. The defense should make a checklist. If any can be shown, it violates the procedural due process right to a fair hearing, as if it were racial bias. In outcome bias, a horrific outcome requires that a scapegoat be found, even if it was all bad luck.

http://en.wikipedia.org/wiki/List_of_cognitive_biases

On the other hand, only demonstrable harms should be criminalized. While I believe all crime should be strict liability crime to avoid the Scholasticist belief in intent, an unlawful doctrine in our secular nation, that is not the way the law is now. Thus mens rea should be proven. In the absence of intent, the doctor was negligent, perhaps criminally so. The other element which is false and taken from Scholasticism is the chain of causation. Causes do not come in lines of chains. They cluster. Usually, a typical catastrophe has 12. Blaming the single one of doctor intoxication cuts off the opportunities to address several other causes.

Posted by: Supremacy Claus | Jul 26, 2010 12:37:09 AM

The law provides the injured party with the opportunity to recover financial compensation if he or she can demonstrate, ‘on the balance of probabilities’, that the medical treatment received was administered negligently by the Doctor or relevant healthcare professionals and in turn that this negligence caused, in whole or in part, the injury or illness.

Posted by: Doctor Negligence | Jan 19, 2011 12:40:42 AM

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