Killing, Letting Die, and the Case for Mildly Punishing Bad Samaritanism

Ken Levy

Louisiana State University, Baton Rouge - Paul M. Hebert Law Center

June 3, 2010

Georgia Law Review, Vol. 44, p. 607, Spring 2010

For over a century now, American scholars (among others) have been debating the merits of “bad Samaritan” laws — laws punishing people for failing to attempt easy and safe rescues. Unfortunately, the opponents of bad Samaritan laws have mostly prevailed. In the United States, the “no-duty-to-rescue” rule dominates. Only four states have passed bad Samaritan laws, and these laws impose only the most minimal punishment — either sub-$500 fines or short-term imprisonment.

This Article argues that every state should criminalize bad Samaritanism. There are three main reasons. First, criminalization is required by the supreme value that we place on protecting human life, a value that motivates laws against both homicide and manslaughter. Second, criminalization is recommended by the “proportionality principle” — i.e., the principle that a law’s level of punishment should be directly proportional to the moral severity of the offense. Third, criminalization would yield a number of significant benefits, including helping to minimize needless deaths and injuries and providing society with an institutional outlet for its outrage against bad Samaritans.

Still, many objections have been leveled against bad Samaritan laws. This Article will argue that while some of these objections — for example, the objections involving foundational criminal law principles such as the actus-reus requirement, the harm principle, and causation — are all easily refuted, five other objections are not. These five objections involve pragmatic considerations such as the difficulties with obtaining evidence against bad Samaritans and psychological considerations such as people’s understandable reasons for not wanting to “get involved.” This Article will then put these five objections into reflective equilibrium with the moral arguments for bad Samaritan laws and conclude that while bad Samaritanism should indeed be criminalized, the punishment that convicted bad Samaritans receive should be mild — certainly milder than the level of punishment recommended by the “proportionality principle.” The corollary of this conclusion is that the criminal law should sometimes abandon the proportionality principle.

Number of Pages in PDF File: 89

Keywords: killing, letting die, action, omission, actus reus, bad samaritanism, criminalization, punishment, proportionality, causation, morality, psychology

Open PDF in Browser Download This Paper

Date posted: May 14, 2009 ; Last revised: January 31, 2015

Suggested Citation

Levy, Ken, Killing, Letting Die, and the Case for Mildly Punishing Bad Samaritanism (June 3, 2010). Georgia Law Review, Vol. 44, p. 607, Spring 2010. Available at SSRN: https://ssrn.com/abstract=1404387

Contact Information

Ken Levy (Contact Author)
Louisiana State University, Baton Rouge - Paul M. Hebert Law Center ( email )
420 Law Center Building
Baton Rouge, LA 70803
United States
Feedback to SSRN

Paper statistics
Abstract Views: 1,727
Downloads: 227
Download Rank: 104,879