Homicide on Holiday: Prosecutorial Discretion, Popular Culture, and the Boundaries of the Criminal Law

As tort reforms have decreased plaintiffs\u27 opportunities to recover for injuries and deaths arising from popular extreme sports, prosecutors have become more willing to bring criminal charges against participants in these inherently dangerous sports. This Article explores the emerging tensions between the popularity of these sports and the prosecutorial decisions resulting in the charging and conviction of extreme sport athletes deemed responsible for recreational injuries and fatalities. Demonstrating the increasing popularity of extreme sports and examples of injury and death resulting from them, this Article shows that tort reform and the economic influence of service providers, such as ski areas, largely insulate sports participants from civil negligence liability. The decrease in civil liability, however, has also seen an increase in criminal liability for these sports participants, as prosecutors have charged, and convicted, extreme sports athletes who have caused injury or death while participating in the sports. Yet because criminal law serves a different function than tort law, especially in the power of the former to condemn, this Article argues prosecutors must make charging decisions that delineate morally blameworthy indifference from inadvertent harm-creation. While charging a defendant with a criminal homicide arising from a recreational accident is not necessarily inappropriate, even where tort reform bars civil damages, prosecutors should reserve criminal charges only for behavior that is bad in a moral sense, and not merely careless. Before charging a defendant with an offense arising from a sports fatality, the Article states that the prosecutor should examine whether the defendant made choices, including choices not to perceive risk, that reveal morally blameworthy indifference to the safety of others. Such guidelines will ensure that criminal punishments for extreme sports participants respect the public nature of criminal liability, rather than merely providing an alternate regime for victim restitution