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My first-year criminal law class spent very little time on the elements of crimes and a lot on the “philosophy of punishment.” I griped about the curriculum and complained that we should spend less time studying the music of the spheres and more time learning how to distinguish battery from bottomry. (1) I was 20 and knew a lot. Forty years later, I know considerably less — a fact you may previously have had occasion to remark upon. I’ve learned how tough it can be to figure out the elements of crimes (See, e.g., People v. Williams, 26 Cal.4th 779 (2001) (arcane mysteries of assault); People v. Hobbs, 152 Cal.App.4th 1 (2007) (wrestling with what crime is committed by surreptitious videotaping of girls’ locker room)), and I’ve also — reluctantly — come to the conclusion that humans are very bad at figuring out appropriate punishment for transgressions. It begins to appear to me that we should be spending a lot more time on the “philosophy of punishment.” (2) TAKE AMTRAK Take Amtrak. (3) Amtrak’s true name is the National Railroad Passenger Corp. It is wholly owned by the federal government. (4) Its directors are appointed by the president of the United States, which probably explains why it feels the necessity to operate under a pseudonym, but I think you have to give them some credit for coming up with the portmanteau “Amtrak” as the pseudonym. After all, they correctly divined that no one would entrust their vacation to an outfit whose acronym, NRPC, was pronounced “Nerpsie.” As railroad names go, “Amtrak” has a lot more panache than Short Line or B & O. (5) And my own experiences with Amtrak have generally been favorable. They’re not as good as the Canadian railroads I’ve traveled, but hey, they don’t have Gordon Lightfoot. That gives the Canucks a big advantage. Take Vlad Guerrero out of the Angel lineup and they wouldn’t be as good as a Canadian railroad either. The only other railroads I have personal experience with are the French and the Spanish, and I wouldn’t trust either of them to get me to Bakersfield, so I’m reluctant to criticize Amtrak. But their philosophy of punishment needs some work. Just ask Roosevelt Sims. Sims retired from his factory job in June at the age of 65. He decided to take a train trip to Los Angeles to celebrate. This is hard for me to understand. L.A. is my hometown, and I will always feel a certain allegiance to it, but it’s hard for me to understand someone in St. Louis wanting to come here on a vacation. I think L.A. is like a bad magician: The farther away you are, the better the act looks to you. Anyway, for whatever reason, Sims decided to take a train to L.A. But a few hundred miles from his destination, near Williams, Ariz., railroad personnel took it into their collective head that he was drunk. So they put him off the train. In a forest. In the middle of nowhere. (6) In the middle of the night. INTO THE FOREST They threw a 65-year-old man they thought was drunk off the train and into a pine forest, at 8,000 feet elevation, five miles from the nearest town and eight hours before daylight. There was no water where they left him, and the nearest road was two miles away. That strike you as overreaction? Does me. In fact, Sims’ family says, he is a nondrinker and was in fact not drunk but going into diabetic shock. If they’re correct, Amtrak’s response makes the leper colony of Molokai look positively enlightened. Somebody at Amtrak was not paying attention during Philosophy of Punishment 101. The punishment for drunkenness is not being marooned on a desert island or dropped on Denali without shoes. It is a fine. (7) We save the burial-in-anthill punishments for more severe infractions. Sims is 65 years old. As I approach 60 myself, I’m a lot more willing to see 65 as the new 45, but I don’t know too many 45-year-olds I’d expect to do well drunk at night in a national forest. In my own case, dropping me five miles from Williams with no road and nothing to guide me but a quarter moon would be a death penalty whose disproportionality I would expect Amnesty International to complain about unless I had murdered a family of missionaries. I mean, the guy is 65 years old. It’s not like he’s gonna overpower the train personnel and attack the engineer. It’s not like they found him with a bomb and they’re afraid he might have confederates in the club car. They couldn’t have waited until there was a town? How about this? You put him into an empty compartment, station a conductor there to keep him from leaving, and call ahead to the next town to have the sheriff take him into custody. The guy’s a drunk, for crying out loud. (8) My 20-year-old daughter can handle an obnoxious drunk, and she doesn’t weigh 120 pounds soaking wet. I mean, this isn’t the Trans-Siberia Express; you’re not gonna have to wait until Tuesday for another town to come up. Williams was only five miles away when they dumped him. You’re telling me they didn’t have anybody who could handle this man for the 10 minutes it was gonna take to get to Williams? Yeah, it’s more bother — and probably less entertaining for the train staff — holding onto him than it is putting him off two miles from a road in the middle of the night, but doesn’t it seem a punishment better suited to the crime? Certainly it did to the law enforcement officers sent out to try to find Mr. Sims. The lieutenant who spoke for the City of Williams Police Department put it pretty well: “You don’t put anyone off in an area like that.” That’s how you get to be a spokesman — by leaving out phrases like “What are you, crazy?!” FOUR DAYS LATER Amtrak got lucky. Coconino County sheriff’s deputies found Sims. Four Days Later. He was, miraculously, alive. Barefoot, dehydrated, and disoriented. He’d spent four days wandering in the wilderness, and I have no idea how long it will take him to recover, but he’s alive. So the lawsuit, which I would handle for free if the state would let me, will not be for wrongful death, but merely victimization with outrageous stupidity compounded by a complete lack of perspective. (9) Now, to borrow from the great legal philosopher Harry Callahan, “I know what you’re thinkin’.” You’re thinking I’m being too hard on Amtrak. You’re thinking the stupid mistake of one or two conductors should hardly be allowed to tarnish the entire Amtrak leviathan. And I’d agree with you .�.�. if only they’d kept their mouth shut. But they didn’t. Neither did they immediately issue a statement that it was all a horrible mistake for which they were truly sorry. If they had, I’d still be looking for a story with which to fill this space. No, their official position is that they “followed company policy.” That’s it. They think that’s enough. They think that should resolve the matter. They followed company policy. Apparently, company policy is to hire only lawyers who did not study the philosophy of punishment. Be interesting to see how that works out for them in this case. If there’s any justice, they’ll get a good, swift kick in the nerpsies.
1. Look it up; it’s not what you think. 2. Professor Kadish, I apologize for doubting you. 3. Go ahead. You know you’re thinking it. Go ahead and say it. The Henny Youngman line: “Please.” 4. Although, at the rate the present administration is driving up the deficit, it could belong to Rupert Murdoch before Christmas. 5. Personally, I would have gone with “Midnight Flyer” or “Wabash Cannonball” or “Occident Express.” I guess that’s why I’m not invited to sit on many boards. 6. Technically, it was the middle of Arizona, but the distinction is too fine for me to understand. 7. Indeed, in California, it’s often a civil commitment to a specialized facility mandated by the legislature almost 40 years ago because they felt public drunks needed more help than they were being given. (See Penal Code �647(g); Welfare & Institutions Code �5170.) 8. At least Amtrak better hope he was drunk. If the family is right, that he was going into diabetic shock, the people who threw him off the train are liable to find themselves facing an arrest warrant from The Hague for human rights violations. 9. Remember, you sue Amtrak, it’s a federal case. I’m pretty sure victimization with extreme stupidity is a cause of action under the Federal Rules.

William W. Bedsworth is an associate justice at the 4th District Court of Appeal in Santa Ana, Calif. This article previously appeared in The Recorder , an ALM publication in San Francisco.

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