Scott Henson at Simple Justice writes about the word Murder losing its meaning. Of a man recently convicted of second degree murder in New York for an Intoxication Manslaughter offense, Scott wrote:

It's not to say that McPherson was an innocent man. He was not. It's not to say that McPherson's conduct was excusable. It was not.

But Franklin McPherson did not commit murder. To say he did cheapens the crime for the victims of real murders, and subjects it to the transitory whims of the prosecutor. McPherson was drunk…

In New York, ‘creative’ prosecutors are proceeding under the theory that the defendant acted with depraved indifference to to human life.

Read Scott’s post for why this is faulty legal reasoning. But how did we get to this point – that is, the point where the general public believes this is appropriate? Scott continues:

As has become so very popular, an appeal to emotion is hidden behind vague things that seem to make sense, provided one doesn't let things like the law get in the way. This has long been the push by advocacy groups such as MADD to create a growing public intolerance for drunk driving, and create the impression that ever-increasingly harsh charges and punishments are the only way to stop this plague.

The problem is that these groups have been so successful, and politicians have basked in the reflected glow of this success, that when reality gets in the way of these PR campaigns (meaning when convictions for murder do nothing to stem the tide of drunk driving), they need to find yet a deeper, harsher, more horrific penalty to impose. Yeah, if only they got the death penalty, that would fix the problem!

The reason why they are slaying imaginary dragons is that this is not the crime of murder. It never was, and never will be. Drinking too much and getting drunk is not something that one contemplates as part of a violent crime. Driving home drunk, every stinking drunk, isn't meant to cause harm. It's meant to get home.

In Texas, prosecutors have a gone a different route. Here, where a 3rd DWI conviction is a felony in and of itself, prosecutors have taken to charging Intoxication Manslaughter defendants with Murder if the they have 2 prior misdemeanor convictions for DWI under the ‘felony murder’ rule.

The felony murder rule is a legal doctrine that removes the usual requirement of intent in a murder prosecution and simply holds a defendant responsible for murder if a death occurs while a felony is being committed. Hence in Texas, 2 prior DWIs + an intoxication manslaughter today = a murder prosecution tomorrow.

The problem with this theory is that it means the defendant’s prior convictions are actually what elevate the Intoxication Manslaughter charge to murder. In other words, the entering of the plea on the previous cases or the finding of guilt by the jury is actually an element of the offense of Murder itself.

That doesn’t make sense.