By Bob Higdon, Part 114 of “The View from the Bunker”

[Editor]: Bob Higdon is (in alphabetical order) a book author, competent rider, expert lawyer, life critic, long-distance rider, sincere friend, and world traveler. For many years Bob’s essays in his column The View from the Bunker in the BMW Riders Association (USA) magazine On the Level were among the best reading inspired by biking. His severe analysis of reality is always mixed with a caustic sense of humour and this piece makes no exception. You can read more of Bob’s thinking in the two books he recently published: “The Higdon Chronicles: Iron Butts, Airheads, and My Life Behind Bars (volumes one and two).” While I hope to publish in the future more articles from Bob, the following one, “Crime and Punishment,” is here as reference to the blog, “Kill a Biker, Go to Jail” posted recently.

Crime and Punishment

            Earlier this year motorcyclists went into orbit when a judge in Michigan gave 90 days in jail to the operator of a car, driving on a suspended license, who’d mowed down and killed a motorcyclist. In passing sentence the judge observed, more or less, that the driver probably wasn’t at fault because no one can see motorcyclists anyway.

            The 3rd amendment to the Constitution says, I think, that it is your duty as a citizen to criticize a judicial decision, even though you weren’t at the trial, haven’t read the court transcript, and aren’t entirely clear what legal principles, if any, apply to the case. Thus, in a blink, calls for the judge’s banishment from the human race erupted from bikers far and wide. I took a different view, of course, since I live in a bunker.

         First, I asked, suppose there had been testimony from reputable scientists that the human eye is deficient when it comes to identifying and judging relatively small, darting objects like bumblebees, curve balls, or sport bikes. The judge could easily have found, based upon just that sort of evidence, that there had been no criminal intent on the part of the defendant and the relatively light sentence consequently could have been handed down simply for the suspended license charge.

         Second, I asked, does such evidence about the limitations of human eyesight really exist? I stated that I knew a Ph.D psychologist/statistician, a man with impeccable credentials from NHTSA, AAA, and academia, who would testify honestly that human beings don’t see bikes all that well.

         We all know that, don’t we? Isn’t that why we put WATCH FOR MOTORCYCLISTS bumper stickers on our cars? Isn’t that why we’re taught that we should ride as if we’re invisible? The nasty truth is that for all practical purposes, we are. They really can’t see us. I wish it weren’t so, but the evidence says it is.

         Those comments didn’t win me any new friends, of course, but I already have enough friends. When a motorcyclist is killed, the reaction of surviving motorcyclists is to form a lynch mob, go after the offending motorist (whether he’s been proven to be culpable or not), and string up anyone who’s on that killer’s side (including, I guess, the judge who failed to sentence the miscreant to life on a rock pile in the first place).

         Lynching has fallen into disfavor in recent years, so the fallback position has become the enhancement of existing laws. You see this with the advent of hate crimes. If I burn down the Church of the Quivering Brethren, I have committed the felonious act of arson. If you want to prove that I also didn’t like the Brethren — which should be pretty obvious since I just turned their church into a cinder — have you added anything to the case? I contend you have added nothing. You’re not meting out justice any longer; you’re simply dispensing an additional serving of vengeance.

         Now I am acutely aware that revenge is one of the four pillars of the criminal law (the others being deterrence, rehabilitation, and incarceration). But revenge for its own sake has a sort of primitive, light-the-torches ring to it. We are a society that strives to make our calls for stinging retribution more subtle. Still, there’s a dead biker on the road. It could have been you or me. Let’s hammer the bastard who did it before it really is you or me.

         But we have a problem: Hate crime classification won’t work here. It’s difficult to prove that the cager had a malevolent heart and wiped the biker out in consequence thereof. Sure, any of us would happily murder a squid in mid-wheelie or a Neanderthal with straight pipes. But there’s no real evidence that motorists in general hate bikers or view them as a despised, untouchable caste.

         Suppose then, instead of concentrating on the perpetrator’s state of mind, we focus on the status of the victim, to wit: the motorcyclist. We will endeavor to give the rider a special station merely because of who he is. There is precedent for this. Certain actors in the law have a privileged, honored place. When I graduated from law school, my ambition was to become a holder in due course, one of the law’s most favored children.

         All we lack is a snappy slogan.  How about: “Kill a Biker, Go to Jail.” It’s short, sweet, and menacing. It accomplishes the goal of turning what could have been an innocent accident or at worst simple negligence into a criminal act. It doesn’t focus on the offender. We don’t care anything about the mind of the offender at all, as we surely do with hate crimes. Here we look only at the body on the road. Is it a biker? Yes? Go to jail.

         Do you like this development? Motorcyclists in Virginia apparently do. They recently prevailed upon their general assembly to pass a variant of the “Kill a Biker, Go to Jail” law. The American Motorcyclist Association, which hasn’t been winning much of anything in courtrooms for ten years, is solidly behind the strategy. Who could possibly be against it?

         Well, moi, I’m afraid, because the question I posed originally remains unanswered: What if the eyeballs of the average motorist are essentially incapable of seeing motorcyclists? The criminal law is predicated upon the existence of mens rea, or criminal intent. If Mother Hubbard in her ’55 DeSoto, otherwise fit by all applicable standards to operate a car, didn’t see Bobby Biker because to her optical system he is the size of a hummingbird, then she couldn’t possibly have intended to hurt Bobby, much less kill him. She didn’t mean to do anything wrong. She has no guilty mind. But Bobby’s dead, and because he was a biker, Mother Hubbard is going to jail.

         If you believe in the basic fairness of The System, this sort of law will not look like a sword waiting to cut you in half. You will not see the ugly downside risks that await, because you believe that prosecutors seek nothing but simple justice and that juries are omniscient and that judges dispense only sentences where the punishment fits the crime. I would like to live there in Bunnyland with you, but I don’t.

            The truth is that prosecutors are ravenous beasts and are interested only in conviction rates. Juries routinely produce verdicts that are nothing if not laughable. Judges may want to do the right thing, but their hands are increasingly tied by mandatory minimum sentences that remove all discretion, which I thought was the sine qua non of judging in the first place. Kill a biker, go to jail. Period.

         Once we strove for homogeneity. E pluribus unum. Now we lobby for special interests. Motorcyclists are skilful at that kind of activity, and sometimes — as in the case of HOV access, for example — we promote worthwhile goals while promoting ourselves. But we’re not the only ones who can do it effectively. God help us when the American Kennel Club realizes what we’ve been up to. Can you see it now? Kill a poodle, go to jail.