Criminal Law @ Moritz College of Law

Proposal for a new statute: "Criminal crashing while driving in rain"

To start our exploration of mens rea issues, and also to facilitate a focused conversation concerning a legislative proposal seeking to reduce roadway harms, here is some background information about dangerous realities on our roads and highways. First, from the Federal Highway Administration (data from 2007 to 2016, with emphasis added):

On average, nearly 5,000 people are killed and over 418,000 people are injured in weather-related crashes each year. The vast majority of most weather-related crashes happen on wet pavement and during rainfall: 70% on wet pavement and 46% during rainfall. A much smaller percentage of weather-related crashes occur during winter conditions.

And from the car press (in 2019), under the headline "Why Driving In The Rain Is Way More Dangerous Than You Think" (with emphasis added):

[A] new study has shown that even light rain can significantly raise the chances of a fatal car crash. Published in the Bulletin of the American Meteorological Society..., the study asserts that rain, snow, and ice increases the risk of fatal car crashes by a massive 34 percent.  Led by Scott Stevens, a data analyst and meteorologist at the North Carolina Institute for Climate Studies, he and his colleagues reviewed 125,012 deadly crashes in the Lower 48 states between 2006 and 2011, factoring in the number of cars on the road to calculate the risk of a fatal accident.

It turns out that even light rain, which Stevens refers to as a "a drizzle, just at the point where you might consider taking an umbrella out," raises the risk of a fatal crash by 27 percent.  While people tend to become cautious in heavy rain, Stevens believes that "they under-appreciate the risk of light rain," with the weather radar data showing an increase in fatal crashes even in rain of less than one-tenth of an inch per hour.  Moderate rain brings the risk of a deadly accident up to 75 percent greater than in clear weather, while in heavy rain the rate skyrockets to two-and-a-half times more likely.

And from the car website Jerry, under the headline "What’s More Dangerous to Drive In – Rain or Snow? A New Study Sheds Light":

While neither is without risk, most drivers assume that driving in snow is more dangerous than driving in rain.  After all, a build up of snow changes the composition of the road, falling snowflakes make it hard to see, and some cars don’t even start in cold weather. However, a study by Jerry has found that rain is the most dangerous condition ...

[S]tudies show that drivers perceive rain to be less dangerous than snow. This, “it’s just rain” attitude, causes many people to drive too fast, underestimating the risks associated with hydroplaning and reduced braking distances.

Senator JoJo Beesafer has been deeply concerned about traffic safety issues ever since her college days after one of her best friends was killed by a drunk driver who was speeding and swerving on a country road during a summer thunderstorm.  Senator Beesafer has sponsored a number of bills seeking to increase punishment and enforcement efforts for driving under the influence.  Senator Beesafer has now drafted a novel new bill responding to concerns for the many thousands of people economically and/or physically harmed by crashes from persons driving in the rain without being aware of the risks (and/or not being sufficiently cautious):

PROPOSED CODE Section 2999.99: Criminal Crashing While Driving in the Rain

(A) No person shall cause physical harm to another person or damage the property of another while driving in the rain.

(B) Whoever violates this section is guilty of criminal crashing while driving in the rain, a misdemeanor of the second degree.  If a violation causes any physical harm to any person or causes property damage in excess of $10,000, this offense is a misdemeanor of the first degree.  

We will discuss the potential pros and cons of this bill in class.  Everyone should feel free to use the comments to express any comments or concerns now; proposed amendments to this bill are welcome as well.

Women, opioids, and Ohio problems with (hidden?) punishment theory at issue

With luck, our class discussion last week of recent Supreme Court cases and AG Eric Holder's speeches provided everyone with perspectives on how punishment theories, both expressly and implicitly, play a role in constitutional jurisprudence and national criminal justice policy conversations.  This weekend, I noticed this recent Toledo Blade editorial, headlined "Women in prison: A big increase in female inmates should prompt changes in how Ohio’s courts deal with addiction," which provides a more localize discussion of some recent criminal justice developments and concerns that implicate punishment theories in various ways.  

I encourage everyone to read the Blade editorial in full to see how, expressly and implicitly, one prominent paper is incorporating punishment theory into its call for reforms focused on a particular demographic.  Here is an excerpt from the editorial (which perhaps can stimulate some discussion of punishment theory or the fairness of a gendered call for reform in the comments):

A stunning rise in the number of women entering Ohio prisons should encourage elected officials to seek better ways of managing the state’s $1.5-billion-a-year prison system.

Driven largely by a growing number of drug-addicted offenders from rural counties, Ohio prisons now hold nearly 4,200 women.  From 2012 to 2013, the number of women coming to state prisons increased by 11 percent, from 2,580 to 2,854 ....  Ohio’s opioid and heroin epidemic is largely to blame for the increase, as more low-level female drug offenders are sent to prison. “That population is very much nonviolent and drug-addicted, often with male co-defendants leading the case,” state prisons Director Gary Mohr said recently.

At the Ohio Reformatory for Women in Marysville, which holds more than 2,600 prisoners, the top three offenses for women entering the prison are drug possession, theft, and trafficking, said public information officer Elizabeth Wright.  Moreover, the statewide share of women prisoners coming from rural counties — those with fewer than 100,000 residents — has nearly doubled in the past decade.  Altogether, Ohio’s 28 prisons hold more than 50,000 inmates.

In an interview with The Blade’s editorial page, a 28-year-old drug offender from Hardin County (population 32,000) said heroin and illicit prescription painkillers are easy to get in her rural community.  As with most other opioid addicts in Ohio, she started using prescription painkillers — in her case, Percocet.  She eventually graduated to heroin because of its lower cost and availability.   “The pills swept me off my feet,” she said at the Ohio Reformatory for Women. “It got to the point where I couldn’t even get out of bed without using a pill. I went straight from Percocet to heroin. Everyone was saying: ‘Why don’t you just do heroin? It’s so much cheaper.’”

Mr. Mohr has prudently called for diverting more low-level drug offenders from prison to community-based treatment programs.  To do that, Ohio will need more adult drug courts. Most counties, including Lucas County, still don’t have a drug court.  The state also needs more community programs to serve as effective alternatives to incarceration.

Ohio’s prosecutors and judges also must get better educated on addiction.  Too many of them still don’t understand that chemical addiction is a compulsive disease, not a moral choice. “A big part of the problem is that a number of people, including judges and prosecutors, see addiction as a state in which people have more control than they actually have,” Orman Hall, the director of Gov. John Kasich’s Opiate Action Team, told The Blade’s editorial page. “Opioid and heroin addiction is a compulsive disorder. In the early stages, people have very little ability not to relapse.”

Could Matthew Cordle and his video have actually saved lots of lives in Ohio?

The question in the title of this post was my class-specific reaction to this report in today's Columbus Dispatch headlined "Ohio traffic deaths could hit record low." The article begins this way:

With some luck, Ohio could dip below 1,000 traffic fatalities this year for the first time since the state began keeping records.  The State Highway Patrol says there were 823 traffic deaths through Monday, the lowest number since 2011, when the year-end toll was 1,016.

"Global Efforts Not Up to Combating Criminals"

The title of this post is the main entry of this notable new website/resource created by the International Institutions and Global Governance Program of the Council of Foreign Relations.  Here is more of the stated concern:

With transnational crime proliferating at unprecedented levels and costing by some estimates over $2 trillion annually, IIGG's new Global Governance Monitor: Transnational Crime reveals gaps in the international anticrime system.

"Courts Putting Stop-and-Frisk Policy on Trial"

The title of this post is the headline of this notable new front-page article in today's New York Times, which gets started this way:

New York City’s accelerating use of police stop-and-frisk tactics has brought a growing chorus of opponents who have been matched in intensity only by the officials who defend the policy. But recent rulings by federal and state courts have now cast judges as the most potent critics of the practice, raising sharp questions about whether the city has sidestepped the Constitution in the drive to keep crime rates low.

The inescapable conclusion is that the city will eventually have to redefine its stop-and-frisk policy, legal experts say, and that the changes — whether voluntary or forced — will fundamentally alter how the police interact with young minority men on the streets.

Some legal experts say the police could be pushed into reducing the numbers of street stops of New Yorkers by hundreds of thousands a year, and that the proportion of stop-and-frisk subjects who are black and Latino would be sharply reduced.

A settlement last year of a class-action case involving stop-and-frisk policies in Philadelphia laid out a model that, if followed in New York, could call for the courts to supervise an imposed system of police monitoring and accountability.

The courts have been energized to step in, some lawyers say, as the debate has intensified over police tactics that have brought legal challenges, academic analysis and news coverage. “The decisions show that the courts are suspicious of the current police practices,” said Michael C. Dorf, a constitutional law professor at Cornell.

Randolph M. McLaughlin, a law professor at Pace University, said the new judicial attention was a product of the numbers: More than 80 percent of those stopped in New York are black or Latino, and last year there were 686,000 stops, with this year’s numbers heading higher. “People are starting to wonder: ‘What’s really going on here? Is this a racial policy?’ And judges read the newspaper too,” Professor McLaughlin said.

UPDATE:  Here is a fascinating new follow-up article in the New York Times concerning the use (and misuse?) of stop-and-frisk techniques in Philadelphia, which gets started this way:

Mayor Michael R. Bloomberg of New York was dismissive when asked if his police department, under siege for the way it uses the stop-and-frisk tactic, might take a lesson from Philadelphia’s response to a similar challenge.  “Why would any rational person want to trade what we have here for the situation in Philadelphia — more murders, higher crime?”  Mr. Bloomberg said in May, referring to an epidemic of gun violence that in 2010 pushed Philadelphia’s homicide rate up for the first time since 2007, an increase that continued last year.

City leaders here see it differently.  A year after they settled litigation by agreeing to institute a host of safeguards to make sure police stops were conducted legally, they say they are simply doing what is needed to make sure that aggressive crime fighting is accompanied by a respect for civil rights.  As part of the agreement, the Police Department has set up an electronic database to track the legality of stops, adopted new training protocols and accepted oversight by an independent monitor.

Philadelphia’s willingness to put police procedures under the microscope has won praise even from the civil rights lawyers who in 2010 filed a class-action lawsuit, accusing police officers of disproportionately stopping African-American and Hispanic men without sufficient cause.  “The city agreed almost immediately after we filed suit to come to the table and discuss an amicable resolution,” said Paul Messing, one of the lawyers, adding that he thought Mayor Michael A. Nutter and other officials “understood that this presented serious constitutional concerns.”

Yet finding the right balance has not been easy.  City officials have watched in frustration as homicides have continued to climb.  As of late Tuesday, 189 people had been killed in the city this year, compared with 169 at the same time in 2011.

In most cases, Police Commissioner Charles H. Ramsey said, both the victims and the perpetrators have been black or Hispanic men.  “I think we have to face some realities,” said Commissioner Ramsey, who is black.  “We certainly do not want to be stopping people without the reasonable suspicion that we need to conduct a stop.  But just because someone is complaining and they want to play the race card doesn’t mean it’s an inappropriate stop.”  The total number of stops, he said, is not the issue. “The question is: Are you stopping the right people for the right reason?”

Philadelphia, like New York, increased the use of the stop-and-frisk tactic, arguing that it would help remove guns from the streets and serve as a deterrent.  In his 2007 mayoral campaign, Mr. Nutter promised to use the strategy to help combat a “crime emergency” in some neighborhoods.  That year, police officers made 136,711 pedestrian stops.  Two years after Mr. Nutter was elected, in 2009, the number nearly doubled to 253,276 — higher proportionally, in a city of 1.5 million, than the 685,724 stops made by police officers in New York last year.

Commissioner Ramsey said many factors could be driving the increase in homicides, including reductions in police department staffing and the fact that “we have an enormous problem with guns in Philadelphia”; the penalties for possession of an illegal firearm in New York are far tougher than in Pennsylvania, he noted.

But he also said that after Philadelphia increased the use of the stop-and-frisk tactic a few years ago, gun violence decreased. There was a 22 percent reduction in homicides from 2007, a year before the policy began, to 2009, “and our shootings went down.” he said.

Mr. Messing, the civil rights lawyer, said the problem was that as the number of stops escalated, the number of complaints he received grew even faster. “We were seeing huge numbers of stops being made without legal cause,” he said, adding that very few arrests were made and that guns were seized in about only 1 in 1,000 stops.

Press Release: Oliwood legislator Berman says new data supports "Driving Under Rain" bill

(FICTIONAL) PRESS RELEASE from the Office of (Fictional) State Senator Doogie Berman

(Fictional) Oliwood State Senator Doogie Berman was pleased to see the latest (real) data released this week by the US Department of Transportation, which reinforced his strong belief that tough criminal laws help to prevent and punish dangerous drivers and help to make citizens.  State Senator Berman was especially pleased to see these data and comments from the USDOT (real) press release:

U.S. Transportation Secretary Ray LaHood today released updated 2009 fatality and injury data showing that highway deaths fell to 33,808 for the year, the lowest number since 1950. The record-breaking decline in traffic fatalities occurred even while estimated vehicle miles traveled in 2009 increased by 0.2 percent over 2008 levels.

In addition, 2009 saw the lowest fatality and injury rates ever recorded: 1.13 deaths per 100 million vehicle miles traveled in 2009, compared to 1.26 deaths for 2008....

“At the Department of Transportation, we are laser-focused on our top priority: safety,” said Secretary LaHood. “Today’s announcement shows that America’s roads are the safest they’ve ever been. But they must be safer. And we will not rest until they are.”...

According to a National Highway Traffic Safety Administration (NHTSA) study based on 2006 Centers for Disease Control (CDC) data, motor vehicle crashes are the leading cause of death for those between the ages of 3 and 34....

“Today’s numbers reflect the tangible benefits of record seat belt use and strong anti-drunk driving enforcement campaigns,” said NHTSA Administrator David Strickland. “But we are still losing more than 30,000 lives a year on our highways, and about a third of these involve drunk driving. We will continue to work with our state partners to strictly enforce both seat belt use and anti-drunk driving laws across this nation, every day and every night.”

State Senator Berman expressed great disappointment that Oliwood was not listed as one of the 41 states that had reductions in fatalities last year, and he reiterated his view that his new "Driving Under Rain" bill would make Oliwood citizens safer.  State Senator Berman indicated that he was going to step up his advocacy for his DUR bill when the Oliwood state legislature meets this week.

Some data on drunk driving fatalities

This website has a lot of interesting statistics about driving fatalities and drunk-driving deaths in the United States over the past 25 years, including this helpful chart:

	Total fatalities	Alcohol related fatalities
Year	Number	Number	Percent
1982	43,945	26,173	60
1983	42,589	24,635	58
1984	44,257	24,762	56
1985	43,825	23,167	53
1986	46,087	25,017	54
1987	46,390	24,094	52
1988	47,087	23,833	51
1989	45,582	22,424	49
1990	44,599	22,587	51
1991	41,508	20,159	49
1992	39,250	18,290	47
1993	40,150	17,908	45
1994	40,716	17,308	43
1995	41,817	17,732	42
1996	42,065	17,749	42
1997	42,013	16,711	40
1998	41,501	16,673	40
1999	41,717	16,572	40
2000	41,945	17,380	41
2001	42,196	17,400	41
2002	43,005	17,524	41
2003	42,643	17,013	40
2004	42,518	16,919	39
2005	43,443	16,885	39
2006	42,532	15,829	37