I Have A Soft Spot For Elephants

Let’s play a game, albeit a morbid one. I’ve found a crime from a real case, and I’ve created a hypothetical circumstance. Consider two crimes, both setting in motion chains of events which result in the death of a human being:

1. Defendant is a construction worker who goes to his jobsite late early in the morning, and steals a stove. Four hours of morning rush-hour traffic and sixty miles later, the stove falls out of the guy’s pickup truck. A big rig swerves to avoid the debris, jackknifes, and turns over. A passenger car is unable to swerve away from the big rid in time, gets pinned underneath the trailer, and is killed.
2. Defendant is an animal trainer for a circus, who grows angry after an elephant fails to perform a trick properly during rehearsal and repeatedly strikes it with an electric cattle prod. The elephant goes berserk after being thus abused and rampages out of the tent, trampling and killing a fifth-grader who was trying to sneak into the tent to catch a peek of the exotic animals inside.

Now, imagine you’re the judge. Which punishment do you give to each crime? Your choices are:

1. One year in the county jail.
2. Twenty-five years to life in state prison.

In the state of California, the correct answer is “A-2” and “B-1.” Why? You might think that the decedent’s status as a trespasser in “B” is important, but that’s not really a very big factor at all.

In scenario “A,” the thief has stolen goods valued in excess of $400. This is grand theft, a felony under Penal Code § 487. While still engaged in the commission of this crime (driving away with the stolen goods four hours later), an activity related to the crime sets in motion a chain of events causing the death of a human being. This is called felony murder and felony murder has the same sentences as overt murder. In the case of a real scumbag who really did this was convicted of first-degree murder, which gets you twenty-five to life. (No citation for the case yet; found via Prof. Shaun Martin.)

In scenario “B,” the trainer who tortured the elephant has violated Penal Code § 596.5, which is a misdemeanor. Under California’s misdemeanor-manslaughter rule, the commission of a misdemeanor resulting in the death of a human is chargeable as manslaughter only if the underlying criminal act – applying the cattle prod to the elephant – is, itself, dangerous to human life. People v. Cox (2000) 23 Cal.4th 665, 675-676. So there’s not even misdemeanor manslaughter, much less felony murder, since it’s only a misdemeanor to torture an elephant with an electric cattle prod or indeed in any other manner.

Now, we shouldn’t feel too awful about the defendant in scenario “A.” If you read the case, there’s a lot of very unsavory facts about the actual, real-life defendant. I didn’t call him a scumbag two paragraphs above for no reason. But most relevant to this case, he didn’t put up the tailgate or put any tie-downs on the stuff he stole, which seems to me a separate criminal act that I wouldn’t hesitate to call “reckless endangerment of human life.” But there is no mention in the case of him even being accused of this crime. Rather, he was convicted of felony murder predicated upon burglary.

But the defendant in “B” (this one is the hypothetical situation) is also significantly morally culpable; his acts are outrageous. An elephant trainer ought to know that when you push an elephant too far, he will go on a rampage. It doesn’t take an elephant trainer to know that rampaging elephant is a clear and present danger to any human being who might happen to be around, whether they are trespassing or not. Besides which, torturing an animal is inherently repugnant; the initial wrongful actions of the defendant in scenario “B” shock my conscience to a degree far more powerfully than do the facts in scenario “A.”

Maybe your sense of morality is more offended by theft than animal abuse. Fair enough. But consider this: which of these two scenarios would lead a reasonable person to foresee a fatality, at the time the underlying crime was committed. You could go either way, but it’s a close call either way. Just as the guy in scenario “A” could and should have reasonably foreseen a reckless danger to human life by not tying down the (ill-gotten) cargo in his truck, the guy in scenario “B” could and should have reasonably foreseen that the elephant would go into a rampage after being tortured. Neither of these are particularly lengthy stretches of the imagination. Given that the defendants’ actual actions are roughly equal from the issue of foreseeability of future harm, there ought to be similar sentences. But no.

It would be too much of a stretch to say that this demonstrates that the State of California values stoves more than it does elephants. And while in the particular case of “A” the guy gets no tears from me, the totality of the chain of events in question makes a sentence of 25 to life for just anyone who did those things seem a little harsh. The sentence in “B,” by contrast, is obviously inadequate punishment in light of both the moral gravity of the underlying act, and its tragic result.