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The Perils Of Creative Prosecution


Monday, Aug. 12, 2002

In July of 2000, New Jersey resident Kenneth Powell was awakened by a phone call from the police. They asked whether he'd come to the station to pick up his friend, whom they had just arrested for drunk driving. Powell agreed, and when he arrived at the police barracks, a trooper gave him directions for getting from there to the arrest site, where the drunk driver's car was parked.

Powell followed the directions and dropped off his friend, to whom police had already returned his car keys, at his parked car. The drunk driver then got behind the wheel of his sports utility vehicle, proceeded to drink some more, and drove head-on into another car, killing himself and one of the other vehicle's occupants.

Powell was subsequently charged with manslaughter and vehicular homicide in connection with the two deaths. Last Friday, the jury acquitted on the manslaughter count and deadlocked on the others. The judge has declared a mistrial.

Describing the case to several people, I repeatedly encountered the same reaction. Powell surely exercised poor judgment, as did the police, but manslaughter? Was it really fair to charge Powell with any crime, let alone homicide, for what a drunk friend did to himself and another man?

Theories of Prosecution and Defense

Prosecutors justified the homicide charge by claiming that Powell exhibited a reckless disregard for human life when he dropped off his extremely drunk friend at a vehicle. Though Powell never intended for anyone to die, prosecutors argued, he acted in a manner that created a substantial risk of death, one that tragically came to pass.

As defense attorneys were quick to point out, however, it was the police who put the car keys in the hands of a man registering a .21 on a breath test for alcohol. It was also the police who instructed Powell on how to get from the station to the car, a route that implicitly assumed Powell would be going there directly with his friend. And finally, it was the police who never warned Powell not to allow his friend to drive.

Creative Prosecution

In cases such as Kenneth Powell's, prosecutors find creative charges to bring against people who have done something wrong but have not obviously violated any criminal law. If the drunk driver had survived his collision, he would have been the logical person to charge with homicide. He chose to drink and get behind the wheel of a car, even after being arrested for drunk driving. At the time of death, in fact, his blood-alcohol content was a whopping .26.

Were the intoxicated driver alive, it is unlikely that anyone would have considered charging Kenneth Powell in connection with the collision. With the true culprit dead, however, the only apparent way to hold someone criminally responsible was to prosecute Powell.

In another example of creative prosecution, a South Carolina public hospital in 1989 began screening maternity patients for cocaine and reporting positive test results to the police. Some of the women were subsequently arrested for delivering drugs to a minor (i.e., the fetus). As in Powell's case, something bad had happened--a fetus was exposed to a dangerous substance--and someone was going to pay.

Is it irresponsible for a pregnant woman to take cocaine? Yes, although less so than it would have been for her to drink large quantities of alcohol, an act that few would describe as "serving drinks to a minor." Though perhaps wrong and even worthy of some condemnation, her act of ingesting intoxicants is quite distinct from giving a substance to another person, and therefore does not fit naturally into the available legislative categories.

The Legislative Alternative--Letting the People Decide

In both sets of cases, prosecutors could have pressed for new legislation that would cover the unusual situations in the future--criminally punishing pregnant women who ingest potentially harmful substances, or holding a drunk driver's friends criminally responsible for injuries and deaths they could have stopped him from causing. Instead, the district attorney's office bypassed the democratic process by expanding the scope of existing criminal laws.

Were such statutes presented to the people directly, voters might find them draconian, unfair, and perhaps even counterproductive. In a telling development, for example, New Jersey has, since the tragic events of July 2000, passed a law requiring police to impound a drunk driver's vehicle for twelve hours after a DWI arrest. By contrast, it did not enact any legislation extending the liability of a drunk driver's friends.

Not Just a Bad Idea

An often-neglected principle for interpreting criminal laws is the rule of lenity. When a criminal statute lends itself to both broad and narrow constructions, this rule compels a court applying the law to select the narrow one. The reason is simple: fair notice.

To confine a person for a criminal act, the law must have clearly notified him ahead of time that his behavior would qualify as a particular crime, subject to a particular range of penalties. Without such notice, a criminal penalty essentially becomes an ex post facto law, specifically banned by the Constitution.

Kenneth Powell's prosecutors, and the officers who arrested cocaine-using maternity patients in South Carolina, would say they did not create a new law but only relied on existing statutes. But one could always so characterize a novel prosecution. The question is whether an average law-abiding citizen would have anticipated these applications of the law.

For Kenneth Powell, the answer is almost certainly no. In fact, the nonlawyers with whom I have discussed the case all became instantly confused when I said that Powell, the man who had picked up and dropped off his drunk friend, was charged with homicide. The next question I received was "Why did the police return the guy's car keys?" or "Aren't the police just as much to blame?"

The answer may well be yes, although it would seem equally unfair to charge the police with manslaughter. The truly guilty party cannot be prosecuted, because he is dead.

Compounding Injustice

Does that mean that nothing out of the ordinary may be prosecuted, because it does not fit our stereotype of the crime in question? Is there no legitimate room for creativity in the district attorney's office?

The issue is a tricky one, and hard cases are inevitable. Prosecution will sometimes "feel right" to many but will nonetheless be at the cutting edge of the law. We might expect juries to nullify in many such cases, as they did, for example, every time Jack Kevorkian was prosecuted for murder (but not when he was prosecuted for physician-assisted suicide). Perhaps the jury's deadlock in Powell's case reflects similar concerns.

Notwithstanding the law, it can be satisfying to charge a man with homicide when someone who might have lived is so cruelly taken from his family and friends. A criminal prosecution can restore order and give those who grieve some semblance of closure. But we must be careful that in our zeal to do justice for one innocent victim, we do not create another.

Sherry F. Colb is a professor at Rutgers Law School. Her other essays about constitutional and criminal law may be found in the archive of her columns on this site.

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