The Hunt for Criminality

Why it's important that prosecutors know when not to bring charges.

Radley Balko | September 14, 2009

Turkey season opened this year in Vermont on May 1. So that’s when St. Johnsbury computer consultant Kevin Kadamus and his 17-year-old son Jacob went out hunting. Decked out in camouflage, the two separated, keeping in touch by radio as they tracked their prey. But somehow they confused their positions, and when Kevin Kadamus saw what he thought was the movement of a turkey, he fired. The movement wasn't a turkey. It was his son Jacob, who later died from his injuries.

"It serves a purpose to bring charges," Vermont State Police Detective Lt. J.P. Sinclair told USA Today about the case, "because it shows there has to be accountability." Caledonia County prosecutor Lisa Warren agreed. Last month, after a public backlash prevented Kadamus from facing a more serious manslaughter charge, the grieving father plead no contest to involuntary manslaughter. Under the plea deal, he'll get a three-year deferred sentence, and is barred from owning firearms or hunting for 10 years.

Hunting accidents like this one are less common today than they were once were, both because fewer people hunt and because more education and safety training is available for hunters. Perhaps in part because these accidents are much rarer than they used to be, authorities now seem less willing to accept them as mere accidents. "There was one time when it was socially tolerant and legally tolerant to say, 'OK, it was an accident,'" one hunting expert told USA Today. He added that that is no longer the case.

But is there something else going on as well?

Historically, we've punished criminals for five reasons: retribution, incapacitation (to protect society from dangerous people), deterrence, rehabilitation, and restoration. Rehabilitation and restoration don't factor much into today's criminal justice system. Restoration, or making the victim whole again, is usually resolved for civil court. The idea that prisons should rehabilitate prisoners to remake them into productive members of society was popular in the 18th and 19th centuries. Philadelphia's famous Eastern State Penitentiary, for instance, was built with an eye towards teaching inmates a trade, getting them right with God, and then sending them back into society. Today's prisons offer GED programs and some professional training, but in an age where prison violence and sexual assault are often seen as an acceptable and inevitable part of doing time, rehabilitation is a pretty low priority for criminal justice professionals.

Instead, we're now more interested in retribution, incapacitation, and deterrence. We want to exact vengeance on those who harm others, keep dangerous people away from the rest of society, and send a message to would-be criminals about the consequences of breaking the law. Yet none of these reasons are applicable to Kevin Kadamus. According to press coverage of his case, Kadamus' friends, neighbors, and fellow townspeople have rallied behind him, raising money for his legal bills and publicly questioning the notion that he should be charged with any crime. Kadamus' family—who are also the victim's family—clearly didn't want to see him face charges. The thirst for retribution came primarily from the legal authorities and some hunting groups.

Nor will Kadamus be incapacitated. He'll do no jail time so long as he abides by the terms of his sentence. Besides, he's hardly a threat to society. His son's death was an accident. It's also hard to argue that charging and sentencing Kadamus will deter other fathers from negligently shooting their sons on hunting trips. For any hunter or father who has read about the case, the horrifying prospect of killing one's own flesh and blood provides a far stronger incentive to approach the sport with greater caution than a three-year suspended sentence ever could.

So what exactly was the "purpose" of bringing charges that Detective Lt. Sinclair referred to? What good could possibly be served by forcing Kadamus to plead guilty to a felony when he’s already carrying the excruciating grief that must come with killing his own son?

The answer lies in three decades worth of "get tough on crime" policies enacted by federal, state, and local authorities. These policies have generated a sixth, public choice-based motivation for prosecution and punishment. In other words, prosecutors simply don't feel like they're doing their jobs unless they're winning convictions and putting people in jail. Think about it: When was the last time you read a big story about your local district attorney declining to bring charges? It happens, of course. But it isn't covered. Even rarer, when was the last time a prosecutor was praised for such restraint? (The one exception might be police-involved shootings.) The truth is that prosecutors are praised, reelected, and promoted based on the cases they win, and on the number of people they put away.

Which means prosecutors have an incentive to see an accident as a case of criminal negligence, to find willful intent where none may exist, and to find creative new ways to criminalize what’s really no more than bad—though not necessarily criminal—behavior.

This is particularly true in cases that generate a lot of media attention. Consider Lori Drew, the Missouri mother who used MySpace to taunt one of her daughter's peers until the young girl killed herself. When the story broke, Drew was scorned and derided all over the world. But that wasn't enough. In a feat of legal contortionism, federal prosecutors attempted to argue that Drew's violation of MySpace's terms of service agreement amounted to a violation of federal anti-hacking laws. Those charges have since been thrown out in federal court. But it was the same public choice motivation at work. There was a strong sentiment that until Drew was arrested and dragged before a court, she hadn’t settled her score with the public. The fact that she didn’t actually break any laws was beside the point.

To be fair to prosecutors, this sentiment is often fed by the public—and that is particularly true in high-profile cases. Once the cable news channels begin saturation coverage of an incident with possible criminal ramifications, there’s a growing sense that until someone faces charges, the system hasn't done its job. As a result, every tragedy now requires a perpetrator. We don't accept that bad things happen. We need bad people to punish for them.

This sense of prosecutorial balance and discretion is critical. Knowing when not to bring charges should be just as important for a prosecutor as winning convictions.

Radley Balko is a senior editor at Reason magazine.

Comments

|9.14.09 @ 3:15PM|#

Prosecutors don't get notches on their belt from exercising discretion. They can't fill their resumes by exercising discretion. Big law firms (who hire former prosecutors) don't want to hear about discretion. The only thing that will cause a prosecutor to act responsibly is the threat of legal liability.

CaptainSmartass|9.14.09 @ 3:16PM|#

There's something to be said for not allowing District Attorneys or Judges to be elected but rather appointed. Of course, if the people doing the appointing are themselves elected, then not much will have changed. Perhaps the best course of action is to limit who can vote based on some qualifying criterion or two. Something simple, like you have to pass a college-level class on logic or you don't get to vote.

Or maybe something simpler: before you can cast your vote, you're presented with three statements containing common fallacies. If you can't spot the fallacies and name them correctly, you don't get to vote. If you can, you do.

|9.14.09 @ 3:18PM|#

One of the first things you hear in an election for District Attorney is how high a conviction rate the candidate has. Exercising prosecutorial discretion and not bringing charges doesn't kick that number up. Bringing specious charges that a defendant pleads guilty to (in order to end the situation, or out of fear, or whatever you may want to suggest) does.

IceTrey|9.14.09 @ 3:22PM|#

I think involuntary manslaughter was the right charge. He showed reckless disregard when he knew other hunters were in the area. You never shoot at "movement". Any decent hunter positively identifies their target before firing. If you don't you end up killing someone.

Attorney|9.14.09 @ 3:32PM|#

Prosecutors don't get notches on their belt from exercising discretion. They can't fill their resumes by exercising discretion. Big law firms (who hire former prosecutors) don't want to hear about discretion. The only thing that will cause a prosecutor to act responsibly is the threat of legal liability.

Do big law firms hire former prosecutors? I'm not aware of any. Most former prosecutors seem to become criminal defense attorneys (Johnnie Cochran) or try to move up the political ladder (Giuliani, Chris Christie). Of course, there are those who become TV "personalities" (Nancy Grace).

Rich|9.14.09 @ 3:37PM|#

Somewhat OT, but I find myself trying to combine CaptainSmartass's and IceTrey's points. Something like "You never vote for a 'movement'. Any decent citizen logically chooses his position before voting. If you don't you end up killing ... something."

And, Captain, I (and others) have proposed variants of such criteria, only to be slapped with "poll-tax"-like objections. Sometimes I think/feel the only people who should be allowed to vote are the recently naturalized.

anonymous vermonter|9.14.09 @ 3:40PM|#

While political pressure may have led to the filing of charges in this case, it also led to a reasonable resolution. His sentence was deferred - in Vermont this means he wasn't really sentenced. As long as he abides by the terms of his probation, in three years the record of his conviction will be cleared.

Because most people who looked at the case didn't think this father should be further punished for his son's death, the prosecutor found it difficult to continue with the prosecution.

I think this the rare example of the political process working.

|9.14.09 @ 3:45PM|#

So when is Dick Cheney going to be brought up on charges for accidentally shooting Harry Whittington during a quail hunt? Oh yeah...move along nothing to see here...

|9.14.09 @ 3:45PM|#

I think the case worked out as it should. The fact that he feels bad about killing his son really doesn't matter except when it comes to punishment. If he committed a crime, and I think he did, he ought to be convicted of it. Take his guilt into account in sentencing, which they seem to have done. You can't just "shoot at movement" and kill someone. You have to be more careful than that.

Is this guy a muderer? No. But I think involuntary manslaughter is the right charge. I agree with Vermonter. This is a case of the political process working.

|9.14.09 @ 3:46PM|#

"So when is Dick Cheney going to be brought up on charges for accidentally shooting Harry Whittington during a quail hunt? Oh yeah...move along nothing to see here..."

If he had killed the guy, I would hope he would have. Conversly, if this guy had just singed his son with a few pellets of buckshot, I would hope he wouldn't have been charged with anything.

|9.14.09 @ 4:04PM|#

"Do big law firms hire former prosecutors?"

Absolutely. Any firm that does major litigation likes to hire people who spend their lives in a courtroom. Plus, former prosecutors improve the political standing of large firms. I am aware of quite a few former prosecutors working at big firms. Former prosecutors also sell themselves at their own litigation firms, and a big time conviction rate is what sells.

John, while I agree with you that there has to be some proportionality when comparing Cheney with Mr. Kadamus, Cheney's shot did cause an injury.

Valhalla|9.14.09 @ 4:06PM|#

My cousin was killed in a similar incident two years ago. In his case, he was killed by a young friend who was, I believe, 19 years old. My cousin, who was in his early 50s, wasn't wearing a brightly colored vest, which would have been legally required in the state where it occurred except that they were hunting on his private land. Charges were not filed, and no one in my family wanted them to be filed.

I think that because the less experienced hunter fired the lethal shot, it was more appropriate not to file charges in his case. But if they had been filed, I couldn't have argued with that. The fact is, you don't shoot at movement. You take the risk of losing prey rather than killing a person. I hope the young man who killed my cousin understands how lucky he is, and frankly I do hope he never hunts again. I hope he would feel too much guilt and pain for that.

|9.14.09 @ 4:13PM|#

Lamar,

I can't remember how injured the guy Cheney shot was. If he was seriously injured, then yes, Cheney should have been charged with something. Although, I am not sure off the top of my head, what criminal negligence that does not result in death is charged as. Since the guy didn't die, it is not manslaughter. And since it was an accident, it can't be assault.

Kimberly|9.14.09 @ 4:16PM|#

I can remember so many times that I saw a decent sized buck, but he passed behind a tree before I could aim. When he came back out in the bushes, while I KNEW it was the same deer, I never shot. You don't shoot if you can't see the target clearly. You just don't. You never know who just walked up.

That being said, I hate reading stories of people charged in the accidental deaths of their children. The pain that the parent goes through must be insane, without adding criminal charges on top of it.

But, I mainly feel that way in cases where the parent is charged when a young child escaped the house after the parent accidentally fell asleep or when a parent leaves a child in the car accidentally (after a change of routine, exhaustion, etc). When there was NO THOUGHT GIVEN to the circumstance that caused the tragedy.

In this case, the father did make the choice to shoot what he couldn't see. It's a tragedy for all involved, but I think I have to agree with John @ 3:45 that this case turned out right (I'd disagree if he had been given jail time).

|9.14.09 @ 4:16PM|#

Kevin Kadamus mistakenly shot and killed his son on a hunting trip last May

Jesus. That fucking sucks.

Mike Leatherwood|9.14.09 @ 4:38PM|#

Nice article, Radley, but I disagree with you that there is a 6th reason. In your example of Lori Drew, the need for revenge was there. Since there was no way to punish her outright, a contrived charge had to be made.
In the hunting accident, the prosecutor felt that revenge was necessary. I mean, how dare Kadamus kill someone in his jurisdiction, much less a family member! There is also a deterrence aspect, not of hunters accidentally killing their offspring, but rather that no one should kill anyone regardless of circumstance.
Your 6th reason is novel, but the examples given seem to fall under one or more of the other catergories.
No matter how we catergorize them, prosecutors are out of control in some areas.

|9.14.09 @ 4:55PM|#

"And since it was an accident, it can't be assault."

I think it could have been assault. While Cheney may have wish for a different result, the fact is that he intentionally aimed and pulled the trigger. He just didn't mean to shoot his pal. Kind of like Mr. Kadamus.

BakedPenguin|9.14.09 @ 5:07PM|#

One positive out of this tragedy is that there does seem to be a growing backlash against the "lock-em-up" mentality.

During the 1960's and early 1970's, the "society is to blame for all crime" victimology mentality encouraged very lenient sentencing. In some states, murderers could get as little as four years. Rapists could get suspended sentences.

As the 70's went on, and especially into the 80's, the inevitable backlash against this idiocy occurred. Unfortunately, it also included harsher sentences against consensual "crimes", especially drugs.

Now it appears the pendulum is swinging slowly back the other way. My hope is (not only that this is true), but that it will be well thought out. Consensual activities will have lesser (or no) jail time, more thought will be put into prosecution, etc.

|9.14.09 @ 5:11PM|#

I can't remember how injured the guy Cheney shot was. If he was seriously injured, then yes, Cheney should have been charged with something.

Even if the guy he shot didn't want to press charges?

5th Amendment|9.14.09 @ 5:23PM|#

Isn't the purpose of grand juries to prevent frivolous prosecution? We already have a safe-guard in place against this kind of prosecutorial bad behavior. A protection guaranteed by the 5th amendment. We are not supposed to have to rely on the prosecutor's restraint. The question should be "What is wrong with our grand jury system or the jurors?" Why are they handing down indictments in cases like this?

William Pearson|9.14.09 @ 6:26PM|#

If I accidentally killed my child there'd probably be no need to pursue charges as I'd likely kill myself next.

|9.14.09 @ 6:41PM|#

The ratio of dead children to people convicted of killing them is 1 to 1. Whenever a child dies, SOMEONE has to go to prison. Every now and then outrage over the fact that it's clearly an accident and the parent is miserable enough will result in a sentence of probation, but there will still ALWAYS be a conviction. Prosecutors know they can always get a conviction - dead kid that could have been yours! - so they always seek one. It's an easy notch on their belt, and they don't give a FUCK about the existence of criminality.

And they can (and do) always use the "we should let a jury decide" excuse which to the dumb or otherwise uneducated ear sounds reasonable enough. As always, it's horrible what prosecutors are able to get away with.

|9.14.09 @ 6:43PM|#

Isn't the purpose of grand juries to prevent frivolous prosecution?

It used to be a century ago. Now it's just a tool used by prosecutors to secretly secure evidence and ex parte testimony before they bring charges. You're better off in a state that doesn't have grand juries.

Equality|9.14.09 @ 6:45PM|#

How many years did Laura Bush do in "Fist Me While You Sit-On-My-Face" womens prison for killing that guy in high school?

|9.14.09 @ 6:47PM|#

Equality

There are still such things as accidents.

|9.15.09 @ 6:20PM|#

Here's where an informed jury comes in. If the jury feels the charges here are unwarranted or excessive, they can simply nullify the whole deal and send the guy home to try to put his life back together.

Rob Sama|9.16.09 @ 1:24PM|#

How can you write an article about this and NOT mention Andrew Sullivan?

Kevin Baker|9.16.09 @ 1:53PM|#

Under the plea deal, he'll get a three-year deferred sentence, and is barred from owning firearms or hunting for 10 years.

Uh, no. Not per USC Title 18, Part I, Chapter 44, § 922(d)(1):

It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person
is under indictment for, or has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year

If he received a "deferred" three-year sentence, he is henceforth stripped of his right to arms. Period.

That's a law we've GOT to get changed. What violation doesn't come with the possibility of a sentence "exceeding one year" anymore?

Tom Perkins|9.16.09 @ 2:09PM|#

@ Kevin Baker "If he received a "deferred" three-year sentence, he is henceforth stripped of his right to arms. Period."

You have it wrong. He hasn't rec'v'd the sentence, it was deferred. That means his 2nd Am. protected rights are not threatened unless the sentencing actually happens.

|9.16.09 @ 2:31PM|#

Drew's actions were intentional. Please don't compare her to Kadamus.

|9.16.09 @ 2:44PM|#

Every hunter has heard, or heard of, other hunters who take a "sound shot".
These people are threats to the life and health of other hunters, farmers, or kids waiting for the school bus, not to mention domestic animals.
Any stupid blank-blank who doesn't make sure of his shot probably can't be convinced to change his ways even if he's killed his own kid. As somebody said, against stupidity, even the gods strive in vain.
This guy's shot wasn't wrong, he thinks. It's that his son was there that was what the problem is.
I used to have a relation in Maine who told me that any time you want to kill somebody, you use a deer rifle, and make sure when you are arraigned you're wearing a plaid shirt and reeking of beer. Instant dismissal. I think he was exaggerating, but not entirely.

|9.16.09 @ 3:17PM|#

Having spent a lot of years as a prosecutor, I'm guessing that the prosecutor in this case was aware that charging would be met with community disapproval. It certainly would have in my community.

It would also likely have been met with an acquittal by a jury.

I don't know all the facts of this case, but the analysis in the commentary, while entertaining, does not hold water.

|9.16.09 @ 3:21PM|#

My use of "commentary" in the last paragraph of my comment (3:17) referred to the original article.

Ron Coleman|9.16.09 @ 3:22PM|#

Besides agreeing with Rob Sama -- I was positive this was going to be a follow-up on the Andrew Sullivan story -- I'm surprised no one here has really explored what seems to me to be an anti-gun agenda, which is pretty common among prosecutors.

Dsama|9.16.09 @ 5:42PM|#

I've killed a fair number iof living creatures in the woods of Vermont, mostly tasty ones. I got my first deer well before I should have had a rifle in my hands, by most people's standards (I was pretty big and strong for my age.)

I agree that you shouldn't shoot at movement (and I wonder what time of day it was, actually- there's a reason you don't generally hunt in brush around sundown.) And I would support this conviction, and maybe argue for a more severe penalty if he had killed someone unrelated to him (I've had a bullet pass through my house during deer season even though we had posted the requisite black and white "nearby house" signs. Almost enough to make you want to post your whole property, though we never went that far.)

But this is one of those cases where I'm in favor of a bit of prosecutorial discretion. I mean- he killed his kid. I don't think you need to pile a criminal charge on top of that. On certain rare occasions a bit of mercy ought to prevail over other considerations.

I'm actually not particularly incensed that Andrew Sullivan is getting off on MJ charges (though I'm unhappy that lots of other people aren;t), but.. if we can swing that we ought to be able to let this guy go home and deal with the aftermath of this in private.

DSama|9.16.09 @ 6:10PM|#

But, that said, I'm not sure that the comparison with the Drew case is apposite. In a way I think they are opposites. In the Drew case we had a loathesome human being who did a loathesome thing. But she did a loathesome thing that is not, and should not be, legislated against. So we should not charge her because we should not start charging people on pretexts just because they do things we disapprove of, no matter how noxious they are, no matter how grievous their consequences.

This case is different. In this case we have a man who committed a crime of negligence. I grew up in Vermont, and I can tell you that there are a lot of precedents for this. You aren't supposed to shoot at things unless you know what you're shooting at. In general, if you happen to kill a pregnant woman while she is hanging laundry in her back-yard (a rather well known case that happened when I was a kid), you get charged with a crime, and serve at least a bit of jail time.

As a former Vermonter, and a former Vermont hunter, I can't disagree with that principle. In Vermont most people leave their land unposted. That means that hunters can roam, unobstructed, across the countryside shooting at things. I love that about Vermont, but that can only be the case if there are really strong incentives to only shoot when you should.

So here's the difference- Lori Drew is a bad person who did a bad thing. But what she did was legal, so we should not attempt to engineer charges against her. This guy is (likely) a good guy who committed a criminal act, and moreover an act that ought to be criminal. But in this case we should be merciful, because of the circumstances.

|9.17.09 @ 12:10PM|#

I agree wholeheartedly. Prosecutors lay their humanity aside on too many cases. But, it's hardly the only problem. Felonies used to be almost entirely capital offenses, but now just about anything can qualify - indeed, under California law most can be "wobblers", charged as a felony or a misdemeanor according to prosecutorial discretion. Which of course means that virtually everything will be charged as a felony. Why not? It doesn't do them any harm and it's a great tool to coerce someone into pleading -- when you're looking at over a year for a crime, even the thought of risking trial is difficult to bear -- how many of us could bear the thought of being out of their child's life for more than a year? If things were charged as they ought to be you'd see a lot more cases go to trial and we can't have that happen can we? Further, crimes like burglary have morphed to cover everything theft related. Burglary used to be the entering of a residence at night with the intent to commit a felony therein or a theft. Now it's entering any building at any time of day with the intent to commit a theft. Going into Walmart and stealing some toiletries for your kids because you don't have a job is now a burglary instead of shoplifting (petty larceny). On one case a woman stole less than $20 in toiletries from Walmart but because she pulled away from the loss prevention "officer" she was charged with burglary AND robbery and received two years and eight months in prison for stealing less than $20 worth of stuff from Walmart - no one was hurt and Walmart did not even lose the goods. This is our justice system.

|9.17.09 @ 12:17PM|#

Too add to my above comment, because so many laws are passed and legislators act as a group they can hide both behind the volume of the law and their co-conspirators in raping of our freedoms under the banner of justice. Under the domestic violence laws saying things that are "annoying or harrassing" is domestic violence -- this can result in you losing custody of your children because it's considered not to be in the best interest of a child for any form of custody to be awarded to someone convicted of domestic violence (not to mention losing your second amendment rights under the Lautenberg amendment). Then add the fact that prosecutors almost always stack charges and we have a pretty damn hellish injustice system.

|9.18.09 @ 4:04AM|#

Wow. I am amazed at the reaction to this article by those who read Reason. My reaction at a first glance was, "Well that was understated." The Kadamus case sounds like a terrible tragedy, pointlessly made worse by needless government interference. And cases like this are not exceptional. They are common, and becoming more so.

Public Choice tells us that government agencies seek to grow. None have grown with less abatement than those involved with criminal "justice" in the last 50 years. Laws have gotten broader, prisons have gotten bigger, DA's offices have mushroomed. All of those agencys have interests. All seek further growth.

Within the last 50 years private conduct that was considered "unseemly" or "innappropriate" has become criminal. We, as a society, have decided to punish conduct we disapprove of more and more through the agency of government.

Thus hundreds of thousands of cases that would never have been brought 20 or 30 years ago are being brought. Call your ex-gf a "bitch" over the phone? Harrasment-DV, 1 year probation and humilating classes. Drunkenly moon a motorist? Register as a sex offender. Toss a cigarette from a car? 18 mos jail in some states. Kid gets out of a locked backyard fence and wanders near a road? Child Abuse. Fail to pick up your kid from school three or four times and people suspect (wrongly) that you're drunk? Child abuse. 16 year old watches a porn with his 14 year old friend? Sex Offense. Give a vicodin to a friend with a bad back? Felony distribution.

This system is out of control. Seriously-- out of control. Almost any behavior that ends in a bad result can be charged as criminal. And because juries look with hindsight and say, "Well he should have been more careful," they convict.

You know how doomed freedom is when you see the bloggers at Reason would convict with the same hindsight.

Almost all behaivor is now potentially criminal. We must must must take a sceptical view towards criminal law (like all other laws) if we have any chance of resisting tyranny.

Fight the power,

Defender

P.S.--Students of history and economics should be especially wary of the above criminal justice trends in a country spending reckless amounts of money, running sky high deficits, and piling on entitlements. Countries like that become tyranical, see e.g. late Rome, France in 1788, and Wiemar Germany.