Randy England has an excellent post that illustrates the dangers of applying “worst case scenario” thinking to every situation. But before we get to the article, let me put on my Modest Proposal hat to see whether I can rile you up and get your Tough-On-Crime legislative juices running…

#1) Misdemeanors are ‘just’ misdemeanors, but if someone keeps committing misdemeanors we ought to elevate the offense to a felony. After all, if you haven’t learned your lesson, you need harsher and harsher punishment. In some (perhaps all?) cases, the second time you commit a misdemeanor, it should be a felony.

#2) If someone dies during the commission of a felony, the charge should be elevated to murder. Yes, murder usually requires intent, but it should be foreseeable to all that committing a felony automatically puts everyone in jeopardy, so… felony + death = murder.

I don’t need to tell you that we already have these rules separately, and some of you can guess what will happen when we combine them.

I’ve blogged before about the (il)logical dangers of imprisoning people for life without proving any intent, and we see more and more stories in the news of Texans prosecuted for Felony Murder based on DWI. The state gets there by proving DWI + 2 prior convictions for DWI = felony, and felony + dead body = murder.

Yes, there’s already a more specific statute for Intoxication Manslaughter, whereby a defendant convicted of DWI that causes death can be punished up to 20 years in prison. But that’s not enough for the Life in Prison crowd. So, we came up with the legal fiction of misdemeanor DWI elevated to felony with priors + dead body = murder.

And, because no one has sympathy for defendants convicted of DWI, there is no general outcry about over punishment in these cases. So that leads to murder convictions in DWI cases, without any intent to kill.

But wait, couldn’t the same reasoning be applied to non-DWIs? Let’s get back to Randy’s post “Should driving while license suspended result in a felony-murder charge?

You may have heard of defendant Kevin Fisher in Kansas City who is charged with felony-murder because he was in an auto accident and his passenger was killed. No Drugs or alcohol were involved. The reason he is charged with murder is that he was driving on a suspended license, normally a misdemeanor–but in his case, a felony because of his prior criminal record…

Apparently in Missouri, DWLS can be elevated to a felony based on a defendant’s prior history. (In Texas, it ‘maxes out’ at a Class A misdemeanor – that is, ‘only’ a 1 year in jail maximum sentence.)

But as Randy points out, the law requires a causal connection between the ‘felony’ (or Driving While License Suspended, in this case) and the death. But the State has been known to stretch that pretty far sometimes:

If I rob a bank with a toy gun and the guard accidently shoots and kills a bystander while trying to stop me, I get charged with felony murder because someone was killed as a result of my felony.

But should the same apply if I try to forge a check at Breaktime and the clerk gets suspicious and calls the manager from the back room. On the way out the manager slips, breaks her neck and dies. All because of my forgery. Am I now to be tried a murderer?

What if they called the police and the officer runs over a baby on the way to investigate?

Worse still, many folks don’t know that their licenses are suspended in the first place. Couldn’t the state then proceed with murder charges, when the underlying misdemeanor itself is very questionable? Randy asks the same thing:

Some may argue that [the defendant] was a bad driver, so that puts him on a par with a drunk driver. But that is not necessarily so. One can be suspended for many reasons which have nothing to do with dangerous driving (e.g. failure to show proof of insurance or getting behind on child support).

Not only that, a person can drive while suspended without actually knowing that he is suspended. It is considered sufficient that you should have known you were suspended. That means [the defendant] can be guilty of murder on a standard of recklessness. Normally, a reckless killing would not be murder, but manslaughter.

I repeat: it is [illogical, unfair, senseless… you pick] to apply “worst case scenario” thinking to all defendants.

Because, when you do, you get a glorified traffic ticket, like DWLS, prosecuted as a Murder. And on its face, that has to be the wrong result.