Is it Unethical to Walk Away From a Mortgage That Is Under Water?

The present foreclosure crisis wasn’t due to a sudden epidemic of ignorance or immorality on the part of borrowers. It was due to predatory lending practices. According to the FBI, 9 out of 10 under water mortgages were due to actionable fraud (the remaining 10% were speculators who got caught short). The Bush II Administration essentially created the sub-prime crisis through its Home Ownership Initiative, which encouraged lenders to target minority and unsophisticated low-end borrowers, such as military families, and people with credit problems. Nonetheless, 55% of those getting subprime loans at inflated interest rates actually qualified for prime loans, but were told they only qualified for the higher interest loans.

The Bush II Administration signaled to the industry that they wouldn’t be regulated, knowing full well that the way that the way that banks, credit card companies and mortgage lenders make their money off this population is through stealth pricing or the trick and trap—practices that are commonplace on our checking accounts fees, credit cards, cell phone contracts, and now our mortgages.

The Federal Reserve, in the grip of free market ideology, gave the green light to securitize these loans and selling them on the secondary mortgage securities market. So, people whose word was good, got bundled together with people whose word wasn’t so good, and these got rebundled with other people whose word may or may not be good (who could tell?) creating a speculative bubble that was inflated by being rebundled and resold. When the bubble burst, it brought the whole banking, credit, insurance, and mortgage securities house of cards down. And it depressed real estate values upward of 20% to 30%, leaving many people under water.

The idea that these people are now obligated to live up to their word when they have been so abused by the fraudulent practices and speculative excesses of the whole industry is absolutely ridiculous, and amounts to adding insult to injury. Moral hazard does not attach to people who are the victims of fraud, whether it is directly or indirectly. And everyone who is now under water due to the bursting of the real estate bubble is a victim of industry fraud, whether or not they were imprudent in getting into a subprime loan. For the most part, people were trusting and believed what their lenders were telling them. It is not their fault for not being sophisticated enough to see through the lies of the professionals they had—and should have had—every reason to believe and trust.

“When I think walking away is unethical, I’m largely thinking of people for whom walking away is a voluntary choice (like this lady), not a result of being unable to afford it and losing it. At least, that’s what I assumed the question was about in the first place.”
I think that the lady you cite is a perfect example of someone who was indirectly victimized by the greed and rapacity of lenders.

Why should she slave away to pay for a house that is worth almost half of what she paid for it, and which may never recover in value, when, through no fault of her own, the lending industry caused the housing market to collapse, sticking her with an asset that is declining in value that she can’t even sell? If she had the option of selling and getting her down-payment back, then maybe I would agree with you, but then there would be no harm and no foul anyway.

In this case, the woman forfeited her down-payment; so the bank not only gets her house, but a windfall in the form of her accumulated equity. After all, according to the terms of the deal, that forfeited equity is the bank’s security against this eventuality. If the bank doesn’t want the house it can always modify the loan. But no, they were too greedy; so now, if they now have to share in her economic pain. That is only fair and just. It was they, after all, who are created the economic conditions and the incentives for her to walk away.

Steven Colbert lampoons the moral hazard argument you are advancing. Here Steve Mecham, a community organizer in Dorchester, MA, explains in great detail why the moral hazard argument is so pernicious and wrong.

Banks are not Grandma. Not even close. They are the most powerful lobby in the country. In fact, they are so powerful that they have gotten the usury laws repealed and the bankruptcy laws rewritten in their favor. Banks overcharge people; they engage in predatory practices; they act in bad faith, and they are so much more powerful than individuals, and the ordinary person is at such a disadvantage in dealing with them, that ordinary people are under NO moral obligation to them whatsoever, especially not to stay stuck in a bad deal.

“I guess I’ve been misinformed. I thought it was Clinton that started the mess, not Bush II. That would be giving Bush too much credit. Am I still misinformed or is the media throwing a curve ball here?”
The media is not throwing you a curve ball, you just have to keep reading till you get to the part where you find out what happened under Bush II.

Clinton did try to make lower income housing more affordable, but there were still regulations and, more importantly, regulators still in place; so “creative financing,” as it was called, never really got too far out of hand. It was also under Clinton (during his second term when he was trying to out-Republican the Republicans) that Congress repealed the Glass-Steagall Act in 1999. This removed the New Deal firewall between banking and securities speculation, setting the stage for bursting speculative securities bubbles to spread panic to the banking sector, and vice versa.

Fed Chairman, Alan Greenspan, in the single biggest mistake of his career, assured everyone there would be no problem in doing this because the new mortgage securities derivatives (that became so toxic later) spread the risk so far and wide that the system was safe against any foreseeable shocks.

However, it was under Bush II, and his Administration’s philosophical aversion to any form of regulatory oversight (see links above), that took the cops off the beat and allowed the really abusive, predatory lending practices to come in in full force. It was under Bush II that lenders began aggressively foreclosing on the trick and trap products they sold in order to capture a windfall in the form of people’s home equity nest eggs. It was the rapacity of this rush to foreclose that pushed real estate market to the point of collapse, causing the (unregulated) mortgage securities markets to collapse, bringing down the credit default swaps (a form of insurance offered by AIG) and the bankers who were holding AIG’s bogus unregulated derivatives, and precipitated a banking crisis worldwide.

It was Treasury Secretary Paulson, under Bush2, that engineered a bailout that paid the banks (mostly Lehman Brothers and Goldman Sachs) 100 cents on the dollar for their toxic AIG assets—a rather generous deal for AIG and the banks but not so much for the taxpayer or the borrower. This, of course, did nothing to stop the foreclosures that are still rippling through the economy, despite some rather tepid and cosmetic Obama Administration initiatives purporting to assist mortgage owners to refinance or modify their loans, but actually providing a fee incentive bonanza for lenders who are not actually required to do very much in the way of actually modifying loans.

“The banks have forced at least one rule into the mainstream and that rule is that there is precious little which is not subject to depreciation of value. Anyone who has ever bought a new car and traded-in their old one knows this. The automobile dealers most certainly know this and take full advantage of it. Likewise, insurance companies and personal property tax assessors know this. Why then, is it reasonable for a bank to expect a home, especially an older home, to retain its original sales value when nothing else on the planet does?”
Good question. For 60 years real estate did nothing but appreciate. There were times when the rate of appreciation may have stagnated, but there was never any appreciable length of time when they did not housing prices did not rise. And, considering that the population almost continues to grow while the supply of housing stock lags somewhat behind, there is a strong likelihood that they could have continued to rise forever, with periodic adjustments.

But the “trick and trap” provisions of mortgages being sold to millions of borrowers presented the lending industry with a unique opportunity to fleece the American public by rushing to foreclosure at the first sign of trouble. In some cases, they would even precipitate the crisis by failing to record payments correctly, or send them back because they weren’t the exact amount, then hit the homeowner with a number of back payments which must be paid all at once.

If they could rush through the foreclosure before the homeowner could refinance (an option they sabotaged by promptly reporting the homeowner’s late payments and default to credit agencies), they could often reap a substantial windfall by capturing the homeowner’s accumulated equity. So, when the economy hit a sudden downturn, and people started missing their payments, the rush to foreclose created a rush to sell that swamped the housing market with a glut that sent housing prices into a free-fall.

This is simple economics 101. The banks simply didn’t want to be the last one out, since the last one out gets caught holding the bag. So the continued—and continue—to foreclose because they have the resources to weather the storm. They can still get houses dirt cheap that will eventually come round again if they hold on to them long enough. It’s just the little people who get screwed in the process.

“Would it not still be worth something later if the borrower holds onto it too?”
Sure, if you can afford to hang on to it until the market comes back around. But, if the house is a millstone around your neck, pulling you deeper and deeper in debt—depleting your savings, your retirement, your life and health insurance, your car payments, why let a bad deal pull you under? That kind of thing can easily happen if you have an adjustable rate mortgage. If it goes up suddenly it can actually eat you alive. Why should you let it?

The bank can hold on to the property a lot longer than you can. It can wait until the market turns around. They make their money coming and going. It is touching that you are so solicitous of their welfare, but, believe me, they don’t give a shit about you.

You are not obligated to play every hand you are dealt. If you don’t like your cards, you can always fold. You lose your ante, but that’s what antes are for; they are the premium you pay for folding. It’s no different with an upside down mortgage. When you walk away, you lose your down-payment. There is no “theft” and no dishonor, especially not in a crooked game. The only reason you are under water in the first place is because the game is crooked. So why beat yourself up over a non-existent moral obligation?

Criminalizing Everyday Risks -- Texting While Driving

If you have ever wondered why we Americans incarcerate far more people per capita than any other country in the world, you need look no further than your daily newspaper. On April 4, 2009, the Associated Press reported rather matter-of-factly that Ms. Deborah Matis-Engle, a 49-year-old woman from Shingletown, California, was sentenced to 6 years in prison because she was speeding and text messaging when she slammed into vehicles stopped at a construction zone, killing a woman whose car she rear-ended. The visceral outrage expressed in the commentary that followed was startling in its intensity:

“How many others have been and will be killed or maimed thanks to cell phone use? She as good as pointed a loaded weapon at her victim, and then pulled the trigger and she gets only six years. Not nearly enough.”

Driving While Stupid “They should give her the death penalty, clean up the DNA pool. Where is the outrage though? If she killed with a gun, everyone cries OUTLAW GUNS.........time to outlaw cars or outlaw cell phones yet??????????”

“OMG! ths wman gt wht she dsrved”

“Finally, somebody really ends up paying—at least something—for their stupid and negligent behavior. Ought to be ten years in prison, parole at two-thirds, but I'll settle for the six. …”

At first I thought this was simply Internet hyperbole, the uncivil rudeness of people emboldened by anonymity—and to some extent it is—but there was such a viciousness to it, such an unseemly piling on, that one got the sense that they would like to have lynched her. Some of the people did, of course, have their reasons, not the least of which is having suffered, either personally or through a loved one, some measure of trauma and loss at the hands of an inattentive driver. Others seemed to be overcome with bile of a more general nature. But there was something more going on here: this was a chance to scapegoat someone. And, given the chance, people threw themselves into it with great relish.

One of the key things to keep in mind about Ms. Matis-Engle’s accident is that it occurred a year before there were any scientific studies suggesting that texting-while-driving might pose a danger to public safety, and a year and a half before any law against texting went into effect. Another is that, statistically speaking, the actual dangers are very, very low, considering the large number of people who engage in this behavior without a mishap.

The charge against Ms. Matis-Engle was not texting-while-driving, but vehicular manslaughter, based on the theory that even in the absence of any scientific risk assessment—and, indeed, even contrary to such assessments—she should have known that her behavior was risky and unacceptable. In other words, the state is charging that Ms. Engle should have known that doing anything at all while driving poses an additional quantum of risk, and because this risk is avoidable, it is therefore unacceptable and actionable when things go wrong. The problem with this line of reasoning is that there are many, many things that people commonly do while driving that are not particularly dangerous but which, in 20/20 hindsight, could be blamed for the mishap. If we begin prosecuting everyone who has an accident under the theory that these extra little behaviors are motivated by criminal negligence, not only do we risk criminalizing whole categories of low-risk behavior, we lay a penalty minefield which unduly penalizes ordinary citizens, and does so in a way that is extremely unlikely to deter people from having accidents.

Everyone has heard of judicial activism, where judges “legislate” from the bench by handing down dicta and case law in opinions they decide. But here we have prosecutorial activism, where prosecutors push the envelope of case law by harsher and harsher sentences and seeking to criminalize new areas of behavior. The problem with prosecutorial activism, apart from expanding the already considerable powers of the prosecutor, is that it “legislates” without the clarity, uniformity and publicity of actual legislation. Only the prosecutor knows for sure when an offense has been committed, making it impossible to know in advance whether one doing anything wrong.

I don’t get it this is pure disregard for the public’s safety. “Why can't we pass a law for stiffer sentences on injuries and deaths caused by someone who chooses to impair their ability (by alcohol, drugs, cell phones, changing CD's etc) while operating a vehicle. From the Redding.Com

[Prosecutor Bridgett] also said that Matis-Engle was well aware of the construction work on Hwy 44 because she drove the roadway every day, but ignored 8 highway construction warning signs and was concentrating on her cell phone—and not on her driving—when she hit the car at least 66 mph. Prosecutor Bridgett said that only months after the crash, Matis-Engle had been spotted twice by a CHP officer texting while driving. "This (fatal) collision had absolutely no impact on her," Bridgett said.'

All distractions are dangerous true…….But.… in taking inventory of what people do while driving; I have personally seen: crosswords done, puzzles being done, shaving, combing hair, putting on makeup, reading books and newspapers, turning backward to discipline children, kissing, changing clothes, drinking alcohol, drinking coffee, eating, smoking, (who knows what)....and of course texting or talking on cell phones still. To that degree you are probably right.....this type of driver will continue to be willingly distracted.

However, statistics showed that cell phones were the most problematic devices for causing distractions, thus the law was implemented. Of course dumb people will just use another method to be distracted.

Certainly there has been a recent flurry of media coverage of cell phone-related accidents. And, now everyone assumes that texting-while-driving is an inherently dangerous activity. But is it? What do the statistics actually show? Is there an epidemic of cell phone-related deaths sweeping the country, creating a swath of death and destruction, warranting requiring swift and severe retribution to imprison those malefactors who flout the law and public safety? Well, actually, no.

Automobile deaths were down in 2008 to 37,313 in 2008, down 9.1% from the year before (attributable mainly to the poor economy and the high price of gasoline). This was the lowest level of highway fatalities in 50 years, achieved at a time when cell phone usage and text messaging were reaching all-time highs. In 2008, there were only about 2,000 to 3,000 cell phone-related deaths in the entire country, generated by pool of 196 million drivers, about 20% (or 39.2 million) of whom are estimated to text and drive.

These cell phone-related death estimates are very likely inflated, since they are very likely counted the same way as alcohol-related deaths—which is to say, alcohol-related does not mean alcohol-caused. In 2002, for example, federal statisticians classified almost 18,000 deaths as “alcohol related.” However, that figure includes anyone killed in a crash in which at least one person (diver, pedestrian, passenger, cyclist, etc.) was estimated to have had any alcohol. If a sober driver recklessly crashes into and kills a family whose driver had enjoyed a glass of wine, the statistics will reflect that all their deaths were “alcohol related.” According to an independent study conducted by the Los Angeles Times, only about 5,000 of the 18,000 alcohol-related deaths actually involved a drunk driver causing the death of a sober driver, passenger or pedestrian. If cell-phone related deaths are inflated to the same degree, 3,000 cell phone-related deaths would work out to about 833 cell phone caused deaths—which is certainly enough to try to prevent through a system of small fines, but not enough to ruin thousands of people’s lives by sending them to prison.

For sake of argument, let’s assume that the actual number of cell phone deaths is at the upper range of the estimate at 3,000, and let’s generously assume that text messaging accounts 2,000, or 2/3rds of these deaths. If each of the 39.2 million drivers who text make two trips a day (i.e., there and back) and texts once while doing so, there are an estimated 28.6 billion texting-while-driving events in the course of a year. Thus, the odds of you or someone else dying on any given try are less than 1 in 14.3 million—or about the same as winning the Lotto Jackpot in California.

In fact, you are 5.4 times more likely to die from being struck by lightning than you are to die from a single act of texting while driving. In other words, if you text and drive 50 times a week, you could expect to be involved in a fatal accident once every 5,000 years. You are three times more likely to die from driving 10 miles, than you are from a single instance of texting while driving. You are much more likely to be dealt a royal flush on the opening hand of a poker game (1 in 649,739); or being killed by a terrorist while traveling abroad (1 in 650,000); or dying from heart disease from eating one broiled steak per week (1 in 48,000); or dying of cancer from eating a peanut butter sandwich a day (1 in 5,000), than you are by texting-while-driving.

So, what’s the basis for all this concern? In September of 2008, the Transport Research Laboratory in the UK reported that when subjects were texting and driving at the same time, their reaction speed was reduced by 35%, thereby increasing the likelihood of an incident. Those that were drinking and driving within the legal limit only suffered a 12% loss of reaction speed, while those that were driving under the influence of marijuana had their reaction speed reduced by 21 percent. In addition, it was reported that texting while driving reduced their steering ability by 91%. What’s wrong with this picture?

In 2007, there were an estimated 12,998 people killed in crashes where someone in the mix had a blood alcohol level of 0.08 or higher. If these deaths were caused by a 12% decrease in reaction time in the roughly 3% of the driving population (5.88 million) who report drinking and driving, then a 35% decrease in reaction time among 39.2 million people should generate something like 252,739 deaths in the real world, but yet we observe, at best, only 2,000. One would also expect that there would be spikes in accidents on weekends or when the “free minutes” rate kicks in after 9 PM, but researchers observe no such spike. We would also expect accident rates to increase as cell phone ownership increased, or as minute use increases, researchers have found that the crash rate had remained flat or had fallen, even though about 40 percent of drivers acknowledge using their cell phones while driving. One strong possibility is that people are learning from experience how to use their cell phones safely.

This is not to say that Transport Research Laboratory’s research is shoddy or that its measurements are inaccurate. More likely the problems have to do with creating an experimental design that is sufficiently faithful to real-world conditions that the inferred risks correspond to the observed risks. In this case, there is a crucial difference between being alcohol impaired and being distracted by text messaging: in the case having a conversation or texting, one can easily and quickly snap one’s attention back to the road and the impairment instantly goes away; whereas in drug and alcohol impairment, one is more or less committed for the whole ride. There are also very likely mitigating factors not accounted for in the experiment. For example, if one is able to hold one’s cell phone up so that the road is never completely out of view, one may respond to cues in one’s field of vision before there is any real danger. However, if the law forces people to hold their cell phones below the dashboard to evade detection, it may actually make cell phone use more dangerous rather than less.

One of the things that seemed to be a clinch Ms. Engle’s guilt in the minds of the commentators was the prosecutor’s allegation that the CHP had seen Ms Matis-Engle texting-while-driving twice after the accident. I say “allegation” here because the CHP officers did not pull her over and cite her for this behavior, since it was still legal at the time, and for the foreseeable future. From the vantage point of another moving car, there was really no way for anyone to tell for sure what she was doing with her cell phone, without pulling her over to check her phone logs.

Given that she was not engaging in illegal behavior—or behavior that was unsafe enough to warrant her being pulled over—it is strange that they were paying such close attention to her in the first place. One has to ask oneself, how is it that one, much less two, CHP officers would be able to pick her face out of the thousands of people they see on the roadway every day; identify her as someone who had been involved in an accident months before; take notes on her engaging in a legal behavior, and then both independently get the idea to come forward to testify about it a year and a half later? A more plausible scenario is that someone told the CHP officers to follow her around and collect any kind of information that might make her look bad.

Furthermore, there is no way to be sure if the CHP officers actually saw what they thought they saw or thought they remembered so long afterward. She could have been simply answering her phone, or typing in GPS information, or manually dialing a number on an otherwise hands-free devices (all of which are legally permitted). Indeed, even if there were some way to confirm she had been texting, it was not yet illegal. Nonetheless, the prosecutor offered this information during the sentencing phase of the trial when it is permissible to offer hearsay evidence about a person’s character. The prosecutor offered these “facts” to show that “this (fatal) collision had absolutely no impact on her,” implying that Ms. Matis-Engle was a self-absorbed person “who drove with no regard for people who might be in her path” and was therefore deserving of the maximum penalty for vehicular manslaughter. After a lengthy emotion-packed hearing in which the victim’s family members testified about the ordeal of their terrible loss, the judge agreed.

Despite the heartfelt claims from Matis-Engle's friends that she was a caring, loving and gentle person, the judge (who had been challenged for bias in the case) said it was “clear to her that the woman's personality changed dramatically when she got behind the wheel of a vehicle.” This Jekyll and Hyde transformation imputed to Ms. Engle, of course, has no basis in psychology or in fact. No psychological evaluation was done to determine if this was in fact the case; no experts were heard to ascertain (or debunk) whether such things were even possible. Nonetheless, this was one of the things considered in her sentencing. How else could one reconcile Ms. Matis-Engle’s friend’s testimony about her sweet and loving character, and her meek and remorseful courtroom demeanor, with the fact that she caused such a hideous death, if not to invoke some sort of folk demon mythology about how ordinary people can transform from good to evil when they step behind a wheel?

What makes the CHP anecdote so damning—apart from the fact that most people will uncritically accept it as true because it comes from a peace officer—is that they will be outraged that Ms. Matis-Engle didn’t “learn” from the accident and cease and desist her dangerous behavior. It was offered to suggest that Ms. Engle was so self-absorbed and heedless of others, and that she might still be a danger to others. It suggests that she is unrepentant, with the infuriating implication that her victim died for nothing. One would have to believe that she is quite a monster—something that should certainly be evident in the rest of her life. That is quite a bit of freight to place on a tidbit of information reported by officers who could not possibly be sure they saw what they think they saw.

Indeed, how could someone be such a heartless monster in the absence of some sort of psychopathology? How is it that the only “evidence” for her “demonic” character comes from the testimony of two Highway Patrol Officers, who suspiciously “just happened” to recognized her, as if she were a local celebrity, even though she was driving another car. How did it occur to them take mental note of someone of someone engaging in a legal behavior; and both have the presence of mind to step forward to report all this a year and a half later? And yet, looking back across the several decades of her life, there is no psychological testimony about whether these acts are in or out of character for her, or consistent with other life events that would indicate such pathology.

Even in the unlikely event that the Highway Patrol officers really had observed her texting again soon after the accident, it would not show that she was heedless of the law. Nor, despite the terrible experience she had just gone through would it indicate she was heedless of the risks of texting. Her chances of having another mishap were still on the order of winning the lottery. Suppose she had won the lottery; would any reasonable person think it rational for her to expect to win it a second time? No, of course not. But it is begging the question even to assume that she was texting at all.

Criminalizing Everyday Risks -- 20/20 Hindsight

When it comes to bad outcomes, people tend to disregard formal probabilistic thinking in favor of post hoc reasoning. In other words, anything that immediately preceded the accident is deemed to be its cause. A classic example of the post hoc fallacy is a man who drinks a Martini but doesn’t eat the olive and doesn’t feel drunk. He drinks another Martini, and again foregoes the olive, and he still isn’t drunk. He drinks a third Martini, but this time he eats the olive and he feels drunk, and so he concludes that it must have been the olive that made him drunk. In this respect, singling out texting-while-driving as the cause of the accident is like saying that olives make you drunk. It seems plausible because the accident closely follows the texting in time, but only because we now consider it a blameworthy activity. However, at the time, there was no research showing cause for concern and, accordingly, no one was even talking about making texting-while-driving was illegal.

Nonetheless, the state expects Ms. Engle to have foreseen the dangers on the basis that common sense theory that doing anything else besides driving takes attention away from the task at hand and makes you a more dangerous driver. But more dangerous does not directly and necessarily translate into dangerous, especially when the baseline level of risk is very low. That’s like saying that eating bacon doubles your risk of a heart attack, therefore it is dangerous to eat bacon. That extra risk may be of concern if you have already had your second double bypass and your risk of a heart attack is very high, but if you are young and fit, the risk is so low as to be of little concern. Or, to press the analogy further, it is like having a couple slices of bacon for breakfast, then running a marathon one hasn’t trained for, having a heart attack, and then blaming the heart attack on the bacon one had for breakfast. It would be prudent to cut bacon out of one’s diet after a heart attack, but having a slice now and then does not show reckless disregard for one’s health.

If texting-while-driving can be likened to an olive in a Martini, in the example above, what is the alcohol? In this case, she was driving in a construction zone. Here, all hazards are amplified and potentiated. Had she seen the warning sign, “Caution: Roadwork Ahead,” she certainly should have known that any distraction posed an unacceptable danger. She would have reduced her speed from the normal, usual and customary speed limit to the much lower speed limits that apply in construction zones. And she would have been on high alert for hazards. Had she decided to text while driving in a construction zone, knowing that she was in a construction zone, she would have been reckless, insofar as she was ignoring a foreseeable risk that any reasonable person would recognize. And, her accident would have been due to criminal negligence.

So, the crux of the case boils down to whether Ms. Matis-Engel knew she was in a construction zone when she picked up her cell phone and started texting. The record seems fairly clear that she was texting before she headed into the construction zone, which was why she missed the first sign warning of “road work ahead.” Had she missed this sign accidentally, because of glare on her windshield, or because she missed it while checking her rearview mirror, her inadvertence probably not been considered blameworthy. But because her inattention can be attributed to a behavior we now consider unsafe, we are inclined to interpret her inattention to a lapse in judgment which, in turn, we attribute to a criminal indifference to the life and safety of others. Had the accident not resulted in a fatality, we would not consider her behavior criminal—after all, we do not punish the tens of millions of people who engage in this same behavior with anything near the same severity. That’s because we don’t regard texting-while-driving as an act of criminal indifference per se; it is only when there is a tragic outcome, even though these tragedies are largely a matter of chance.

The reasoning that convicted her, at least in this court of public opinion, is both circular and post hoc: Why did the driver cause an accident? Because she was inattentive. How do we know that she was inattentive? Because she caused an accident. We regard her inattention as similarly blameworthy. How do we know she is a bad person? Because she killed someone. How do we know she was to blame for it? Because it wouldn’t have happened if she had been more careful. How do we know she wasn’t careful? Because she killed someone.

Rather than viewing Ms. Engle as one among millions of people engaging in a particular behavior (mostly without mishap) we personalize her tragedy. Instead of viewing it as a systemic problem—as a kind of statistical fluke that is bound to crop up in any large population working its way up the learning curve of a new technology. We make her and others like her personally responsible for these inevitable mishaps. In other words, rather than accepting these tragedies as one of the costs of introducing a new technology, we attempt to blame these mishaps on the criminality of a few “bad apples.” The problem, of course, is not the few “bad apples,” but the tens of millions of people who engage in this activity who, once in a very great while, miss a critical sign and blunder into a dangerous situation.

Criminalizing Everyday Risks -- Punishing the Few for the Sins of the Many

Consequently, the only defensible justification for punishing Ms. Engle (or, more generally, for punishing the few for the sins of the many) is to alter the behavior of the many. But in this case, Ms. Engle’s story received a scant few paragraphs in a small town newspaper; so hardly anyone will never hear of this case, and so will have no chance of being deterred by it. Indeed, throwing Ms. Engle in prison, where she will languish out of sight and out of mind seems to defeat the very idea of deterrence. So, one can only conclude that deterrence is an afterthought at best. Shorn of this pretense, we can now see that the real purpose of punishing Ms. Engle, as is always the case with punishing someone for the sins of the many, is scapegoating. Here, the punishment is a purely symbolic act, whose savage ferocity is intended to placate and appease the emotions of everyone who is upset by the tragedy. It creates the illusion that something has been done to restore normalcy and public order, when in fact the many go on doing what they have been all along.

If texting-while-driving were a well-known dangerous activity, like driving while drunk or deliberately running a red light, we would be justified in imputing the same kind of guilty mind (mens rea) that we normally associate with criminal culpability. But in this case the actual risk entailed in her behavior was—and is—low, and it occurred before there was any reason to think otherwise, and long before there was any law against it. Moreover, the law against texting-while-driving is a purely mallum prohibitum law, in that the behavior is wrong because it is prohibited for the orderly regulation of society rather than a mallum in se law, which prohibits behavior that is wrong, injurious, or evil in itself. Thus, infractions of the law against texting are on the order of not wearing a seatbelt, as opposed to a crime like homicide, which implies callousness and/or intentional malice. Accordingly, violations of this law are normally regarded as rule infractions, not as criminal acts; and are punished in California with a rather modest fine of $25 for the first offense and $50 for each offense thereafter.

To assume that texting-while-driving accidents are criminally motivated while other instances of texting while driving aren’t requires some mental gymnastics equivalent to believing that people undergo a Jekyll and Hyde kind of transformation when they pick up a cell phone. One such contortion is the belief that anyone who engages in any kind of multi-tasking while driving is guilty of a criminal offense.

Criminalizing Everyday Risks -- Piling On

It would appear that those looking on from the safe vantage point of 20/20 hindsight, were willing—even eager—to impute all sorts of reprehensible motives to Ms. Engle based on surprisingly little information. Even more chilling than the visceral hatred was the clamoring for even more punishment.

"Worse than DUI death!! She had full control of her facilities, she knew what she was/wasn't doing, her brain/attention was oblivious to the stopped vehicles, she survived (like many drunk drivers do!). She deserves 10-20 years for knowingly causing death, regardless of the 'distraction'. This is the exact reason they DONT WANT PEOPLE USING DEVICES DURING DRIVING!”

She knowingly caused a death by crashing into vehicles to which she was oblivious? And as if to further compound her guilt, she didn’t’ have the decency to die herself! Did we read the same article? “Ten to twenty years, for knowingly causing death” struck me as over the top.

Six, ten, twenty years… numbers just seem to roll off the tongue as if they mean nothing—which they don’t to the people speaking them. Do people have any idea what a physically punishing, soul crushing experience a year in prison is? At least when you are beating someone, you see the damage you are causing and your arm eventually gets tired. But, when you are venting emotionally like this, there are no practical limits. Unfortunately, this sort of thing is not entirely harmless; it creates the false impression that there is a broad popular consensus that the laws are too lenient, even though those commenting are a very skewed, self-selected segment of the population. We are already one of the most punitive societies on earth, so I just had to say something:

I don't agree that texting while driving is like shooting loaded gun into a crowd. With a gun you are knowingly intending to cause someone harm; with a cell phone, you aren't. She could just as easily gotten some dust or the sun in her eye, or spilled hot coffee in her lap, or been trying to comfort a fussy child in the back seat. Certainly it is foolish and risky to multi-task while driving, but many people seem to manage, mostly without causing any harm.

I don't think it really helps to severely criminalize every conceivable kind of accident-prone negligence. One year in a California prison is a huge ordeal for a young person. At age 49, six years strikes me as terribly severe. That kind of punishment is not going to make anyone else "think twice" about texting while driving since only 0.00001% of the population will ever hear of it. She poses no further danger to the public so we don't need to put her away, at a cost of $47,500 a year or $285,000 for six years. For that kind of money the state could fund a lot of public service announcements and pay into an insurance pool for negligent drivers.

Having to live with the knowledge that she has killed someone through carelessness ought to be punishment enough. Punishing her further is not going to bring back the person she killed, nor is it going to make the family even remotely whole. On the contrary, the death was essentially an accident, albeit one caused by negligence. There are civil remedies for negligence-caused accidents, but sending her to prison will likely cause her to lose everything she has, including prospects of future employment, making her judgment proof. That certainly doesn't help the victim's family. As for "making her pay" what's the point of it, considering that we are the ones who are actually paying, to the tune of $285,000.

Nobody intends to cause an accident, but people have them anyway. Life is risky enough as it is without jacking up the criminal penalties for every little lapse and negligence. People have momentary lapses all the time (especially the young, but also as you get older); making the penalties stiffer doesn't make them stop. It only makes the wreck bigger when something eventually does go wrong. Let he who has never been negligent raise the first penalty, because the penalty you raise may be one you (or your children) have to pay.

To which one person replied, “Perhaps you ought to contact the family of the woman who was killed and tell them this.” Ouch! So much for letting he who is without sin cast the first stone. The first unstated premise in this remark is that the criminal justice system exists to appease the victim’s family’s thirst for vengeance; the second is that there has been a rupture in the universe which only Ms. Engle’s suffering can repair.

"The point I am making is that this could have been handled with a stiff fine, or restitution. I am sure the victim's family is crazy with grief. If human nature holds sway, they would probably wish her dead, or for her to suffer for the rest of her life (which, believe me, she will). This unbounded grief is exactly why victim's families should not set the standard by which we set calibrate our penalties. Over the past 20 years, prosecutors have been exploiting the grief of the victim's families in order to ratchet up the penalties they mete out."

"As a result, we have become one of the most punitive societies on earth. We now incarcerate 7 times more people on a per capita basis than Canada, Japan, or any country in Europe. We have 6% of the world's population, but 26% of the world's prisoners. We are one of a handful of countries--Pakistan, Saudi Arabia, Iran, the DRP of the Congo--that sentences children to death; in fact, we sentence more children to death than all the other countries combined. Up till a few years ago, we sentenced the mentally retarded to death; currently, we are the only society in the world that incarcerates (i.e., punishes) the mentally ill. We are the only country in the world that sentences children to life in prison without any possibility of parole. In addition, our prisons have become hell holes of torture, sadism and abuse that horrify and disgust the rest of the world. They make us international human rights pariahs, and make a laughing stock of our claims to moral leadership in the world."

http://www.informationclearinghouse.info/article8451.htm

"A year in prison is a very long time. Six years, for a woman 49 years of age, is a very harsh sentence. Keep in mind that we sentenced Nazi war criminals like Albert Speer to "only" 20 years in prison. Look at the link above and tell me if you still think that six years is a fitting penalty for an act of mere negligence (California prisons are toward the end)."

In 2009, the University of California raised its tuition 29% and both the UC and the State University have had to cutback enrollments 10% in order for us to be able to slake our appetite for vengeance. Retribution isn't free. It is very costly, and it really doesn't make the families feel all that better.

Another person weighed in with a similar sentiment but with a new twist:

Sorry Mr. Zuma….the law is the law. Thinking twice about texting should be already in place since it's against the law. The point is an inattentive driver is a danger on the road which put others at risk. Somebody else paid the price for her texting and breaking the law. The victim paid with their life; the driver will be able to recover after serving probably 1/3 of the sentence with good behavior....a small price to pay compared to the victim and family. I'm sure the victim's family would not agree with you.......and that is the ultimate determination.

Of course, what everyone overlooks in this discussion is that it wasn’t against the law when she did it. She did break a law by failing to observe that she was in a construction zone, although that seems to have been more of a mistake than an act of deliberate criminality. The victim paid and now so must she. This idea that because somebody dies, somebody has to “pay” comes up again more explicitly in one person’s “modest proposal”:

At one time there was such a thing as indentured servitude. Rather than put this person in jail and be a burden to the public and the family looses a loved one, make sure this person that committed the crime of negligent homicide has a job and that 3/4 of it goes to the family the other 1/4 goes to the state until the debt of the cost of the trial is paid off. If the person works two jobs or three even, then 1/2 of the income from those goes to the family as well.


This would be in place for a minimum of 10 years. After that the person would pay 1/8 of all their income to the family. To enforce this it would be very easy. Each paycheck would be sent to a trustee account and distributed by the state trustee just like child support payments are done.  Rather simple punishment if we are to equate dollars to the loss of a life, but money will never make up for the loss.

Well, that all seems neat and tidy; we just forget about liability insurance and go back to slavery and debtor’s prisons!  To which I reply:

Hmmm. Seems problematic… So let's see if I've got this straight: You want to bring back slavery for anyone who accidentally kills someone. They work and 100% of what they make is taken away from them until some unspecified debt is paid to the family, and the rest goes to paying the court costs, and somehow you imagine she is going to feel motivated to take a second or third job.

That assumes that the main principle of justice involved is compensation to the family for the (I presume) economic loss of their family member. Apart from indentured servitude being unconstitutional, what about if she has insurance? Can that be applied toward the debt? If so, wouldn't everybody's insurance rates go way up, because now everyone is at risk for such a judgment?

No, just practical… I used the term "indentured servitude" to illustrate the point that the person committing the crime is under obligation to "make whole" the damaged parties i.e.: the family of the dead person.  That obligation is financial since we as humans cannot bring back the dead. The debt is indeed specified, 10 years 100% until court costs are paid; 75% for the balance of the 10 years; 1/8 for life; 100% to 75% of her income from her primary employment. To survive she would of necessity be required to take another job because the law would not allow her to collect welfare.


Insurance rates would not go up at all since it is already required in the instance we are speaking of and indeed the family has every right to take action against that source of being "made whole." However, there is still the obligation of the person to personally participate in the process of repayment. There is a penalty built into our laws. That penalty being that the guilty party must make restitution, "suffer personally" that is the principle behind incarceration.


It is not the obligation of the state to support someone while repaying a debt of ignorance and misconduct. Frankly, I like the idea the other poster had that she should be forced to do community service of going to the High Schools and telling her story as part of her restitution to the family as well as to society.  Today we must make the punishment as prescribed by law fit the crime. I am not so certain that the 6 years in prison fits the crime. It will put a burden on society, take a productive person out of society and have a bitter person in the end. That is a waste of a human life. Don't get me wrong, the person did a heinous crime of ignorant foolish misconduct in violation of the law. We simply have to find better ways to "punish" people in our system rather than throw them in jail.

A heinous crime of "ignorant foolish conduct"? Once again, texting, the behavior everyone is focused on as central to this accident was not a crime at the time; so the “crime” in this instance is really the woman’s lapse in judgment, her “foolish ignorance,” which led to her carelessness, which led to her inattention, which led to her accident.  People seem to have no trouble inventing punishments for other people to bear, without any apparent regard for the fact that they too are sometimes foolish, ignorant and careless, and tht this fact only escapes notice by the luck of the draw.  Very few see themselves as ever having to bear the price they would extract from others.

The unspecified debt I was referring to above was the debt to be paid the family. How is this determined? Are some lives worth more than others? What if one person is a doctor and the other a hod carrier? If the hod carrier is the debtor in this case, he may have to break his back to pay for the life of a doctor; while if the doctor is the debtor, he may have funds on hand to simply write a check for the life of the hod carrier. And there are even deeper problems:

I still see lots of problems. It seems to me as though you have two incompatible theories of justice going on--one restorative, the other retributionist. On the restorative side, you recognize the victim's family's loss as something broken that needs to be repaired--a deficit that needs to be repaid. To me, that seems to be an improvement over vengeance for vengeance's sake.

But, the way you propose to set it up is even more punitive than what she is getting now under a purely retributionist system. Why would anyone agree to "do the right thing"; i.e. step forward, take responsibility and make restitution when doing so would be three times more punitive (in terms of years of life lost) than if they simply took the prison sentence? Not only is taking away 100% of anything they earn a disincentive to earn anything; it is under conditions that are absolutely undignified.

Why would anyone agree to such a deal, or cooperate with a system that tries to impose such a deal? There are no incentives as it is for a guilty party to admit any form of culpability or show any genuine remorse, and now you have just added additional disincentives. In effect, you are advocating bringing back debtors' prisons, since it would take less time, trouble and indignity to go to prison than repay their victims under degrading terms you propose.

Look at what happens when the state garnishes 2/3rds of the wages of men who can't or won't make their child support payments. Do they go out and get second, third and fourth jobs so they can make ends meet? No, they drop off the grid and live under the radar. And the reason they do so is because their debt burden is crushing and unreasonable. The undignified nature of the confiscatory economic relationships you propose almost guarantees that the person's "primary" employment will be inconsequential, while their secondary employment will be more substantive and a kind of under-the-radar kind of barter or arrangement.

Your idea that the guilty party must "suffer personally" more or less cancels out any impulse to "do the right thing" for the right reasons.

But there is another peculiarity: In every other area of our civilization we handle the problem of accidental damage with insurance. In other words, if the accident is my fault, my insurance pays; if the accident is your fault, then your insurance pays. What you are proposing is that when fault is established, the person's insurance is nullified and stripped away, so that they can "suffer personally" for making the harmed party whole themselves. This defeats the whole idea of insurance, because you seek to impose on people the very burden they intended to avoid by having insurance in the first place. So, this would tend to suggest that you are really not about making people whole so much as making people suffer in a retributionist sense.

But, you are going even further than that: You propose that we should all regard common human faults--ignorance, foolishness, stupidity, inattention and distraction--as heinous crimes, and punish them as such. This is really quite a radical idea. In other words, you would strip away the protections that people buy in the form of insurance (to protect themselves against the claims of others that they inadvertently wrong because they are less than perfect) and then punish these people's faults as crimes. What if this principle took hold common torts were handled under the criminal law, where every kind of personal injury was dealt with as a crime? The rich would be able to buy their way out of everything, while the poor and the near poor would be sent to prison.

Instead of expanding the catalogue of things we now punish as crimes, why not take a small fraction of what we spend on incarceration and put it in an insurance pool in order to extend coverage to all the people who cannot now afford insurance? Why don't we remove the disincentives that prevent people from admitting culpability, making amends, or showing genuine remorse by allowing them to make public service announcements? I think the best way to find better ways than punishing people is to stop criminalizing common human failings.

After all, we do this when we consider the offender a “high value” citizen, like the 28 year-old Donte Stallworth, the NFL wide receiver who killed a 59 year-old pedestrian while driving under the influence of alcohol. Rather than receiving15 years in prison for DUI manslaughter, he received 30 days in jail, 2 years of house arrest (during which he will be able to play football), 8 years probation, paid a large restitution settlement to the family, and an offer to make public service announcements warning others of the dangers of drinking while driving.

What is it that allows us to view Mr. Stallworth’s sentence as just and yet clamor for even more punishment for ordinary folk like Ms. Matis-Engle? Mr. Stallworth’s star qualities allow us to feel as though we know him, or would like to know him, and so we are more likely to understand and forgive him as we would one of our own. Ms. Matis-Engle, on the other hand, suffers the same liabilities as the witches of old: she is no longer young, attractive, and the focal point of a brood of dependent children; and her hyphenated name suggests that she is “uppity,” insofar as she kept her own name and identity in defiance of convention and tradition. She has no protective glamour or prestige, and so is easily vilified.

Nils Christie, a Norwegian criminologist, offers an important perspective on how we come to see certain people and things as criminal and others not, in his book, “Crime Control as Industry”:

One way of looking at crime is to perceive it as a sort of basic phenomenon. Certain acts are seen as inherently criminal. The extreme case is natural crime, acts so wrong that they virtually define themselves as crimes, or are at least regarded as crimes by all reasonable humans. If not seen so, these are not humans. This view is probably close to what most people intuitively feel, think, and say about serious crime. …


But systems where such views prevail also put certain limits to the trend towards criminalization. The underlying mechanism is simple. Think of children. Own children and others. Most children act in ways that according to the law might be called crimes. Some money may disappear from a purse. The son does not tell the truth, at least not the whole truth as to where he spent the evening. He beats his brother. But still, we do not apply categories from penal law. We do not call the child a criminal and we do not call the acts, crimes.


Why? It just does not feel right. Why not?  Because we know too much. We know the context, the son was in desperate need of money, he was in love for the first time, his brother teased him more than anybody could bear—his acts were meaningful, nothing was added by seeing them in the perspective of penal law. And the son himself; we know him so well from thousands of encounters. In that totality of knowledge a legal category is much too narrow. He took that money, but we remember all the times he generously shared his money or sweets or warmth. He hit his brother, but has more often comforted him; he lied, but is basically deeply trustworthy.


He is. But this is not necessarily true of the kid who just moved in across the street.  Acts are not, they become. So it is with crime. Crime does not exist. Crime is created. First there are acts. Then follows a long process of giving meaning to these acts. Social distance is of particular importance. Distance increases the tendency to give certain acts the meaning of being crimes, and the persons the simplified meaning of being criminals. In other settings—family life is only one of several examples—the social conditions are of a sort which creates resistance against perceiving acts as crimes and persons as criminals. ...


In societies with limited tendencies to perceive acts as crimes, and where most potentialities for such acts are prevented by God’s eye, neighbors’ attendance and situational restrictions, law can be seen as a receiver of the left-over. Law becomes here a receiver of the totality of the little that has slipped through the first line of control, and has come to the attention of authorities. In this situation, there is neither room nor need for discussion of selection of cases. The judges have to take what crimes before them. Re-act.


But, as we have seen, this is not our situation. The social system has changed into one where there are fewer restraints against perceiving even minor transgressions of laws as crimes and their actors as criminals. And then, at the same time, we are in a situation where the old defenses against committing unwanted acts are gone, while new technical forms of control have been created. God and neighbors have been replaced by the mechanical efficiency of modern forms of surveillance. We live in a concrete situation with crime as a mass-phenomenon. Here angers and anxieties created from acts which also in modern societies easily might have been perceived as natural crimes become the driving force in the fight against all sorts of deplorable acts. This new situation, with an unlimited reservoir of acts which can be defined as crimes, also creates unlimited possibilities for warfare against all sorts of unwanted acts.


With a living tradition from the period where natural crimes were the only ones, combined with an unlimited reservoir of what can be seen as crimes in modern times, the ground has been prepared. The crime control market is waiting for its entrepreneurs. (Christie, 1994)(pp. 22-24)

These words were first written in 1988. Since then social distance between Americans has only grown. We are no longer a country that makes much of anything. Our financial elites have shipped our industrial base off to China and Mexico while we have become a nation of burger slingers, hedge fund managers, and web page designers struggling from paycheck to declining paycheck. Prisons have become a tempting solution to replace the jobs lost by disinvestment, deindustrialization and economic readjustment to a lower standard of living. They warehouse an ever larger fraction of the economically and socially dispossessed; they provide very lucrative jobs for the jailers and prison guards; and they provide jobs to the industries that sell goods and services to both. This would not be possible without deep racial, class, and political resentments and the use of the war on drugs to read criminality into one another’s lifestyles.

Criminalizing Everyday Risks -- Resentment and Revenge

The recent economic downturn is only a harbinger of things to come. Our democracy has been dumbed down to sound bites, bumper sticker slogans, and partisan catchphrases. Journalism is in decline and there is less and less substantive analysis. Collectively, we are almost incapable of formulating, much less coming to a consensus around, any kind of systemic analysis of what is wrong with our society. Instead, Americans tend it to attribute social problems to the personal moral failings of individuals; and so they look to punishing individuals for their real and imagined faults before they will look at systemic causes. Americans are so allergic to systemic thinking that they are profoundly ignorant of basic economics. For example, they worry about things like the government spending money when it is in a deep recession that is threatening to spiral deeper into a depression.


To make matters worse, the Republicans are not above exploiting these sorts of misunderstandings for narrow partisan advantage at the expense of the national interest. To be fair, Democrats do little better. They are now so beholden to corporate special interests that they have removed “single payer” as an option from healthcare reform, even though polls show 60% to 77% of the American public endorse some kind of comprehensive publicly-funded plan. Despite all our talk about ending the war on terror and the war in Iraq, we have doubled down in Afghanistan. We may be closing down Guantanamo Bay, but we are ramping up the flow of “enemy combatants” we are sending to prison at Bagram Air Force Base in Afghanistan. Despite all the talk about Hope and Change in the 2008 election, we have not made any of the truly fundamental changes necessary to get our society back on the right track. As a consequence, we are a society in steep decline. And, we are experiencing the discontents of and disappointments of that decline.

To the degree that we are unable to face our real problems, we develop an appetite for scapegoating. Indeed, we are already so primed to loathe one another, all a prosecutor needs to do is smear and malign the defendant’s character, and the jury will almost automatically impute criminal behavior and criminal intent on its own. In other words, people are so predisposed to believe the worst about one another—especially those officially accused—that the prosecutor needs only to put the defendant flaws under a magnifying glass, and the audience does the rest.

Portraying Ms. Engle as the type of person who would deliberately endanger others by knowingly engaging in a dangerous behavior, presents her as heedless of the danger she posed to others, even though she had no way of knowing that her behavior was dangerous or would cause an accident on that day. Bringing up what two CHP officers may have thought they saw only seems to confirm the worst, even though the improbable corroboration of the two officers’ testimony seems to render it more implausible rather than less. This is trial by smear, innuendo and allusion.

It caters to people’s need to find reasons for otherwise inexplicable events. And, in this respect, it is very much like the need to find a witch in order to explain why somebody’s child or cow has died. In this case, however, what is believed to be at work is not the evil eye, but evil intention. Here, the causative power is not some supernatural spooky action at a distance, but a misreading of probability. Rather than viewing this accident as a kind of “perfect storm” of risk factors—in which an initial distraction leads to a missed sign, which leads to uncorrected speed and vigilance, and ultimately culminates in a fatal crash—the fatal crash is taken as a foregone conclusion.

It is as if the person should have known in advance that it was going to occur and prevented it. Hence, allowing oneself to be distracted should be considered reckless and inexorably commits one to a fatal conclusion. This is known as the “historian’s fallacy.” It rests on the assumption that that decision makers in the past viewed events from the same perspective and have the same information as those subsequently analyzing the decision in the present. In addition, those faulting Ms. Engle are projecting their present-day understanding of the dangers and laws governing texting back to a time when they did not apply (a separate fallacy known as “presentism”).

Once in a while relatively minor distractions do lead to fatal results, but most of the time they don’t, which is why the law does not explicitly prohibit a wide range of low risk behaviors. Nonetheless, there are those who take an absolutist, categorical, zero-tolerance approach to risk. For them, anyone who engages in any sort risky behavior at all, no matter how briefly or how small the risk is criminally irresponsible and should be severely punished.

Drive a Car, Take Responsibility You get behind a car; at that point you are behind the wheel of a weapon. Your total attention must be on driving. She should be punished for taking a life with her weapon since she was irresponsible and caused death. Regardless of what caused her attention to be taken away from driving; in the end she should not have been driving if she could not give it her full attention. That is what it boils down to. Not what laws should be in place to ban this or that while driving. It should be that you kill someone while driving; you pay the price.

My parents and 10 year old nephew were killed 12 years ago by someone not paying attention while driving. They rear ended my parents car and threw them into an oncoming semi truck. I sat through the trial and listened to the excuses, there is no excuse for not paying sole attention to driving. In this case, the driver received no punishment; us the family live with the results of the accident every day.

This argument is seductive in its simplicity. We are also drawn in by our sympathy for the tragedy she endured. But, her program is actually about doing away with sympathy. If we were to adopt her “no excuses” approach to accidents, we would all be literally defenseless against professional fault-finders picking apart our lapses of attention and judgment in the cold unsympathetic light of hindsight—delving into our pasts, our faults, and our character, in order to present them in the worst possible light. To the degree that others are not only willing, but often eager, to view us as flawed and contemptible, we can all be facing quite serious exposure to prison for behaviors that are not actually criminal. So I asked her what this punishment is supposed to accomplish.

By punishing the offending party, an example is set for everyone else as to what will happen if they do the same thing. Very simple.  It's about time someone pays with jail time for this type of "accident". She is no different than a drunk driver in my eyes. She chose to be impaired while driving, so the justice system will choose her punishment. I just hope this is the first of many people made to pay for their poor choices that hurt the rest of us who do follow the laws.  With your line of reasoning, why punish a murderer for his crimes? Will it make anyone feel better? Will it benefit society? Will it bring the victim back? When is the punishment enough to know they won't murder again? Will it make them obey the law? The death of this poor woman may have been unintentional on the part of the texting driver, but when she chose to disobey the laws for her own selfish reasons while putting others at risk of harm, she became a murderer just the same.

Once again, Ms. Engle did not disobey any law when she engaged in texting. Even if the law now in effect had been effect then, she would have been guilty of a motor vehicle infraction, not a misdemeanor or felony.  At that time she had no reason to believe that she was significantly impaired, or that she was putting others at risk of harm, or that she would cause an accident. In this respect, Ms. Engle’s behavior was no different from all the people today who eat, drink, smoke, or carry on conversations while driving and are inadvertently distracted and have accidents because of it. She was not a drunk driver, nor is there any reason to demonize her as “selfish,” much less as a murderer. Nonetheless, she became a kind of lightning rod for the pent up anger of everyone who feels victimized by an inattentive driver.

Aren’t you forgetting about intent? Just yesterday one of my roommates was driving me to the store when he got a call on his cell phone. It was one of those new fangled phones with a dazzling array of applications, and it took him a good 10 seconds of squinting and fiddling before he found the right key to find out who it was and send the call to voice mail. Meanwhile, to my alarm, we were coming up fast on some backed up traffic, much like the present case. Was he descending into a murderous state of mind in fiddling with his phone, or was he simply responding to a lifetime of conditioning to answer a ringing phone? No one was killed, so obviously not. But had there been an accident and someone died, no doubt there would be some here demanding that he should "pay."

One of the elements of a crime is criminal intent. The essential difference between an accidental killing and murder is that the murder deliberately and with malice aforethought intended to cause the other person's death. Texting while driving is not even close--which is why it is legally an infraction—not even a misdemeanor. The fine for the first offense of texting while driving is a mere $20 and $50 for each offense thereafter. So, even if someone were to have the "criminal intent" to text while driving, their "selfishness" and "irresponsibility" would certainly not rise to the standards of criminal intent we require for murder or manslaughter. Hence, the 6 years being handed out here is not for the texting per se, but for some ancillary charge, like causing an accident in a construction zone.

Was my roommate any different from a drunk driver during those 10 seconds of his inattention? Most emphatically yes. He didn't intentionally get into the car in an impaired state in defiance of the law. His impairment was a state of momentary confusion brought about by the sudden intrusion of an unfamiliar and not easy to deal with piece of new technology. But suppose he had been actually texting, does this amount to a depraved indifference to the lives of others? He didn't know that it was against the law to text while driving until I told him. Nor did he see himself as particularly impaired. It is, by the way, still legal to consult your phone's GPS, even though it may take a bit of fiddling to get the GPS to come up. In fact, I dare say that programming in a destination is not that much different from sending a text message, only it’s legal.

In ancient China, if a branch fell off a tree and killed someone, they chopped the tree down to punish it for the murder. Motive and state of mind were irrelevant in the Chinese system. It was the harm that defined the crime. But I don't think that is what you are advocating. Rather, it appears that you are arguing that even if you are only slightly at fault in some accident, you are just as "guilty" of a crime as if you had intended the result with malice aforethought. In other words, if someone has a momentary lapse of attention, through choice or inadvertence, and someone dies, they are just as guilty as though they planned to murder the person. In effect, you are proposing to punish inattention, ignorance, distraction, selfishness and stupidity as crimes.

At present, the law distinguishes between first and second degree murder, between voluntary and involuntary manslaughter, and between accidental deaths and deaths due to negligence--and it does so primarily on the basis of criminal intent. I'm sure we could wipe away these distinctions and treat them as though they were all the same, but to do so wouldn't be simple so much as simplistic.

We punish murder because it is not accidental or inadvertent, but because it is evil and knowingly and deliberately intended to be evil. It is the intent that is the gravamen of the offense, not the harm. You say we should punish "to set an example." Maybe, back in the days when we had public hangings and the heads of malefactors were hung from the city gate, but two paragraphs in a newspaper that practically no one will see, what kind of example does that set?

It soon becomes fairly clear that the actual purpose of all this proposed punishment has nothing to do with setting an example for the edification and improvement of society and everything to do with expressing this woman’s hatred for those “stupid morons” who have injured her through a similar lapse of attention. Anyone who isn’t doing what they should be doing—or is even susceptible to distraction—is choosing to be negligent, as if people make conscious decisions to be negligent. There is a kind of presumption that people have a duty to be perfect; so that if they are flawed in any way at all, they have no business being out and about in the world.

Lifetime conditioning of answering the phone?? What is he, Pavlov's dog? Your "friend" should have been paying attention to the road and operation of his vehicle, not his phone. If he is that easily distracted, he should shut the phone off when he drives for his and everyone else's safety. Perhaps he shouldn't be driving at all if he isn't aware of the laws he is supposed to obey. Very poor example that does not back up your argument defending not punishing texters when they kill someone through their own choice to be negligent, in my opinion.

In my statements about murderers, I really should have said "people who kill others by choice of negligence", since you take things so literally. In my eyes, the choice to be negligent isn't a huge leap from choosing to kill if you have any inkling that your deliberate negligence, or recklessness, may result in harm to someone, such as this case. You would have to be a selfish moron to divert your attention elsewhere while driving, whether it be eating, reading, texting, talking on the phone, changing your clothes, using the GPS, etc., and expect that you're somehow so special that you're not creating a dangerous situation to those around you, in and out of the car.

Yes, a murderer has true criminal intent; they made a choice for a specific outcome of their actions which would result in death of another living being. But this particular killing also doesn't fall into the category of "accidental" death either as this driver intentionally made the choice to pay attention to her cell phone instead of her vehicle and surroundings. As a driver, she had a duty to operate the car safely. The driver's negligent choice of action is what ultimately ended the life of the other woman. How horrifying to imagine the poor victim watching her killer barreling at her from the rearview mirror, with nowhere to go while she sits and awaits her fate.

An example of a true accident would be if a driver unintentionally ran over something that caused a tire blowout, which then caused the driver to lose control of the vehicle, which then crashed into the sitting car, killing the other driver. There is little choice in that scenario. But for the case we are commenting on, it all began with the choice to drive negligently, to pay attention to her phone instead of her driving, to have closed her mind to the fact that her action would result in harm to another being. Of course the driver's intention wasn't to directly kill someone, but she took her chances of unintentionally killing someone when she made that "choice". Anyone who lets themselves be distracted runs the same risk.

Is her choice on the same level as the choice of an evil and deliberate murderer? NO. I don't think someone should be punished the same for an accident as they would be for intentional murder, there is a whole range in between the two. As it is, there should be different levels of punishment for ending another person's life and a consideration of the circumstances. This woman wasn't accidentally texting while driving, she was deliberately texting while driving, and her deliberate actions resulted in the death of the other driver. She wasn't slightly at fault, she was fully at fault. Call it what you want whether it be inattention, ignorance, distraction, selfishness or stupidity; it was still her willful and reckless choice that ended someone's life.

With regard to the type or length of punishment, we will all have different ideas of what we think is fair based on our own experiences and beliefs. I am one that believes in the death penalty for certain murders and actions. Given that, I think that 6 years is a small price to pay for taking someone else's life by way of your own selfish actions. (Yes, I think it's a selfish action to choose paying a bill via your cell phone while driving, over operating your car in a safe manner.) Six years is fair in my opinion and hardly equal to the time a true intentional murderer would face. People get more time in jail for willful actions that don't result in the death of others.

For the safety of the rest of us, consult and fiddle with your GPS when you're parked or have a passenger do it for you. You're not supposed to be programming the thing while you're driving anymore than you should be texting. Common sense often replaces the need for another law that tells you what you aren't supposed to do; we have enough laws already.

It would be nice if we didn't have to set examples to show people what will happen to them if they make bad choices, but that's how people learn about consequences from the time they are children. Maybe if we still had public hangings, we wouldn't have the high murder and violent crime rates we have now.

And from me, a very considerate and safe driver, who turns off the phone while driving, programs the GPS before I drive off, never rubbernecks, and avoids distractions while driving, my mind can't be changed. I was unfortunate enough to be at a complete stop on the freeway, watching a driver in the rearview mirror as he came barreling at me from behind and then slammed into my vehicle going 50 miles per hour....all while investigating and playing with what he had pulled out of his nose. No citation for him, nothing at all. But for me, his booger has cost me 9 months of rehab, my vehicle, thousands of dollars, and the freedom to just live my life as I had before he came along, deciding that what came out of his nose was more important than operating his vehicle safely.

As much as I am inclined to sympathize with this woman’s pain and suffering, I find her single-minded preoccupation with punishment quite repelling and toxic. She is so consumed with obtaining the pound of flesh she believes she is due, that she is even toying with the idea of bringing back public hangings and, presumably, along with it, the collective enjoyment that mobs took in such spectacles of retribution.

She has no sympathy for ordinary people in ordinary situations. For example, she has never met my roommate; and yet, she has already lumped him in the same category as people who “murder by choosing to be negligent,” simply because he is inclined to reach for a ringing telephone. For her, anyone who “allows” himself to be distracted is already guilty of criminal negligence, whether or not there is an accident. In her view, anyone who does not have the foresight to blow his nose before leaving home, or turn his cell phone off before getting in the car, or consume all his food and drink before leaving the Mc Donald’s parking lot, should be “made an example of” by having years ripped from their lives by being sent to prison. Indeed, one doesn’t even have to do anything to incur her wrath. She believes that any California driver who doesn’t know every detail of California’s several hundred-page Motor Vehicle Code deserves to be banished from the roadway.

Criminalizing Everyday Risk -- Purifying the World of Morons

And yet, there is something about her argument, apart from the sweet pleasure of blaming, shaming and gloating over the imperfections of other people, that resonates deeply: If we all took “personal responsibility” and consciously purged every conceivable risk from our lives, the world would be a safer place. No doubt. In an ideal world things would be, well, more ideal.  So, let's get rid of all the morons!

The problem with this idea, if you think about it even a little bit, is that we all act like morons from time to time.  Apart from elevating the exhortations of your Driver's Ed teacher to a law of the universe and elevating a dull preoccupation with safety to the paramount social good, and the draconian methods necessary to enforce it, is that it lays every accident, blunder, mishap and mistake at the feet of a particular kind of human failure: irresponsibility. And it equates irresponsibility with an “abandoned and malignant heart” (a term prosecutors use when they prosecute DUI homicides as murder without showing murderous intent). In other words, accidents have nothing to do with systems design, risk mitigation measures, or probability, and everything to do with the perversity of people’s intentions.

Essentially, accidents happen because people are forgetful, inattentive, have poor motivation, are careless, negligent or reckless. However, the prosecutorial theory is that they aren’t this way naturally, inadvertently, or episodically; they chose to be this way. How does the prosecutor know? Because, in the aftermath of accidents, they can almost always find something that the person would have, could have, or should have done differently to prevent it, if only they had “taken responsibility” and “chosen” to do so. Hence, any risk-taking, no matter how small, is an act of irresponsibility; it is a moral failing; and, on that basis, one can argue that it is also criminal. If only we could get rid of those “stupid morons,” then the world would be a better place.

So, in this respect, our quest for a safer world boils down to a program of social and moral purification. But, much like other attempts to purify society by rooting out witches, heretics, Jews and other “evil-intentioned” human beings, attempting to root out risk-takers tends become an exercise in run-away self-righteousness, which being preoccupied with blaming and shaming, does little to address the true causes of accidents, and so tends to accomplish very little. Predictably, this expansion of prosecutorial power will fall most heavily on society’s “others”; the stigmatized and outcast lower classes, immigrants, and people of color.

Basically, it is an attempt to “idiot-proof” the world by removing and “making examples” of the idiots in it. Presumably, if you punish people severely enough when they make mistakes, then everyone will be “motivated” to make “better choices” and avoid accidents. But, if people are undeterred by the prospect of their own loss and limb in an accident, then why would we expect that being sent to prison will help them see the light? Unfortunately, this kind of “scared straight” approach to risk reduction does not—and cannot—work because practically everyone is an “idiot” waiting to be discovered by improbable events.

People are nowhere near as ill-intentioned as this model envisions; so no one thinks that their particular form risk-taking is all that irresponsible; and so when one of these social control entrepreneurs makes an “example” of someone for being “criminally negligent” because they have caused an accident, people hearing about it carry on, without skipping a beat, because they don’t see their own actions as particularly ill-intentioned, irresponsible, or negligent; and so, they don’t see the “example” as having anything to do with them. In fact, the more opprobrium and punishment heaped upon these irresponsible “evil-doers,” the less likely it is that anyone else will see that their own behaviors—which are virtually identical—as wrong; until, of course, an improbable sequence of events catches up with them, they have an accident, are demonized because of it.

Criminalizing Everyday Risks -- The Swiss Cheese Model of Accident Causation

The fact is, accidents are complex events representing multiple levels of failure: In any given context, there is some sort of risk mitigation regime. There are rules, laws, procedures; redundant systems of training, licensing, supervision and enforcement. There are backup systems of norms of acceptable behavior. There are technologies and procedures for every conceivable hazard, from balding tires to oil-slick roads, to hail and fog. There are potential errors in the design of roads, cars, warning signs and other safety technologies. There are conflicting messages and undelivered warnings; there are preconditions for unsafe acts, and the unsafe acts themselves. For an accident to occur, it has to evade all of the safety measures in place.

In 1990, the British psychologist, James T. Reason, proposed what he called the Swiss Cheese Model of Accident Causation. It is now widely used in risk analysis in a wide variety of fields. The various defenses against failure are modeled as a series of barriers, represented as slices of Swiss cheese. The holes in the cheese slices represent individual weaknesses in individual parts of the system, and are continually varying in size and position in all slices. “In an ideal world each defensive layer would be intact. In reality, however, they are more like slices of Swiss cheese, having many holes—though unlike in the cheese, these holes are continually opening, shutting, and shifting their location. The presence of holes in any one “slice” does not normally cause a bad outcome. Usually, this can happen only when the holes in many layers momentarily line up to permit a trajectory of accident opportunity—bringing hazards into damaging contact with victims.

Holes in the defenses arise due to active failures and latent conditions. Nearly all accidents involve a combination of these two sets of factors. Active failures take the form of active slips, lapses, fumbles, mistakes, and procedural violations by the people directly involved. Latent conditions arise from decisions made by designers, builders, procedure writers, and top management. Such decisions may be mistaken, but they need not be. All such strategic decisions have the potential to introduce or remove risk and error into the system.

“Latent conditions have two kinds of adverse effect: they can translate into error provoking conditions within the local workplace (for example, time pressure, understaffing, inadequate equipment, fatigue, and inexperience) and they can create lasting holes or weaknesses in the defenses (untrustworthy alarms and indicators, unworkable procedures, design and construction deficiencies, etc. Latent conditions—as the term suggests—may lie dormant in the system for many years before they combine with active failures and local triggers to create an accident opportunity. Unlike active failures, whose specific forms are often hard to foresee, latent conditions can be identified and remedied before an adverse event occurs.”

People also have latent traits which make them susceptible to accidents in varying degrees at various times. People vary enormously in maturity, temperament, judgment, intelligence, foresight, general knowledge, coping ability, and mental acuity. Deficits in one or more of these things can align with others to produce an accident opportunity when external conditions are right. Consider, for example, the variability of individual distractibility. Some people have chronic attention deficits; others are episodically sleep-deprived, or under stress, or in pain, or on medication, or coming off medication. Some people are easily dazzled by lights, or hypnotized by the monotony of the roadway. Others are inclined to sudden bouts of sneezing, or an occasional uncontrollable laugh; or panic attacks, manias, depressions; or the emotional distress of a divorce; or any one of life’s many other stressors, upsets and emergencies.

One can never predict which of one’s faults or deficits will combine to produce a slip, lapse, or error, since that constellation of internal vulnerabilities has to align with external conditions. So, no matter how careful you are, you will always pose a risk to others. Indeed, the very effort to be careful can increase risks, as in the case of people who drove 55 mph back in the days when that was the speed limit. They created traffic flows of markedly differing speeds which were far more dangerous than had they gone along with the prevailing flow of traffic. Similarly, suddenly pulling over to the side of the road to safely sneeze, consult a map, or program one’s GPS and then rejoin traffic, can create almost as much of a hazard as it avoids. Consequently, there is no reason that one’s choices to attend to stimuli or mental states other than the task of driving are necessarily ill-intentioned, irresponsible or reprehensible.

On the contrary, they are the norm. According to Marc Green, a forensic expert on vision and attention, “Just as the human body's physical construction limits the weight that can be lifted, the mind's construction limits our ability to attend. Moreover, "inattention" is not an aberration but rather the norm. The senses receive far more information that our minds could possibly handle, so we are all inattentive to most of the world at any given moment. People need good reason to direct attention to some place or to some object so that it is seen.” We must accept that people have lapses of attention and build our world with that in mind.

In fact, our world is already designed to be forgiving of human faults and frailties, even if some of the people in it are not. Our roads are designed with wide margins of safety, so that you can drive rather safely even above the posted speed limit, or in the pouring rain; and, most of the time, with something less than 100% of your attention on the road. If people could be depended upon to devote 100% of their attention to the task of driving 100% of the time, there would be no need for wake-up bumps in the middle of the road, soft barriers, reflective safety markings on guardrails and center dividers, or for shoulders, much less wide shoulders, or multiple warnings of what is ahead.

The world is designed and continually being redesigned with multiple and redundant layers of safety in mind precisely because it is expected that normal people will occasionally be distracted, ignorant, foolish, and have lapses in judgment. Cars have airbags, seatbelts and anti-lock brakes for this very same reason. We carry liability and casualty insurance, not only to protect ourselves from “stupid morons” and “inconsiderate jerks,” but to protect other people from ourselves when our faults combine to cause others to see us in this light.

Our driving is only partly shaped by our character. The far larger part of it is shaped and reshaped by the driving environment. This environment is partly technological, partly regulatory, partly normative, and partly designed into the physical landscape. For example, the “safety first” ideals we were taught in high school Driver’s Education classes are part of an attempt to inoculate the normative environment in which we approach the task of driving by instilling a sense of civic duty to compete with the normative expectations of our peers and the people who market to them. In this respect, Driver Ed is to driving much the same way safe sex is to sex.

We are told that driving is a “privilege,” but that doesn’t mean it can be denied us for being less than perfect human beings. The driving privilege is very easily earned by passing an exam covering the basic rules of the road, followed by an equally basic proficiency test of common vehicle operation maneuvers. Hence, a driver’s license does not denote or imply a 100% mastery of one’s vehicle or the Vehicle Code, but a mastery of the minimum requirements. That is why there are different levels of driver licensing and certification. We rightly expect school bus drivers and big rig truck drivers not only to be proficient in handling their more complicated vehicles we expect them to be as mindful as humanly possible of driving safety, so as to inoculate them from the occupational hazards of being on the road.