Homicide on Holiday: Prosecutorial Discretion, Popular Culture, and the Boundaries of the Criminal Law
64 Pages Posted: 10 Oct 2005
This article discusses prosecutors' discretion to press criminal charges against individuals who cause death during recreational activities. Based on newspaper sources, published opinions, and unpublished materials from cases that resulted in plea bargains, Homicide on Holiday continues the author's exploration of the relationship between the American public, criminal prosecutors, and the nature of the prosecutors' public role. It shows that, despite popular culture's glorification of risk and a nationwide trend in tort law toward sheltering sports co-participants from civil negligence liability, an exhilarating trip down a ski slope is increasingly likely to land a skier in jail if he collides with and kills another person. During the past few years, prosecutors have shown increased zeal in pressing charges against individuals in a variety of recreational contexts from horseback accidents at riding stables to jet-skiing fatalities on reservoirs. This article analyzes the criminal prosecution of recreational risk-takers and proposes a new approach to discretionary charging decisions. It represents the first comprehensive scholarly treatment of the use of the criminal law to regulate recreational risk.
Keywords: Prosecutorial discretion, prosecutorial ethics, homicide, manslaughter, negligence, recklessness, tort, risk, recreation, popular culture, sports, public, criminal law
JEL Classification: K14, K42, K41, K19, K39
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