The Hunt for Criminality

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

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.