The Kennedy Treatment?

It’s tempting to think that Kerry Kennedy beat a Westchester drugged-driving rap last month because of her name. The outcome points to a deeper problem, though: It’s hard to convict a driver of bad driving—or even to get them off the road— before he or she maims or kills someone. It’s even hard to do it after. 

As news accounts of the trial reported, the facts were clear: On an early summer morning, Kennedy took Ambien, a sleep “aid,” and got behind the wheel of her SUV. She crashed into a truck. But the jury agreed Kennedy wasn’t at fault. She had mixed up her medication, taking bedtime pills when it was time to wake up. 

Was this celebrity justice? The six jurors likely weren’t starstruck but the opposite: They identified with Kennedy, seeing themselves or a family member in her. Though Kennedy did talk about her harrowing childhood—losing her father to an assassin—her defense was she is an overscheduled suburban mom. She has to carry three bags to the gym to squeeze in a little exercise time before work, work, work and kids, kids, kids. And like most suburban moms, Kennedy lives in her car. She has to commute to her workout session rather than just exercising as part of her commute. 

Jurors may have succumbed to “there but for the grace of God go I” empathy—a common phenomenon. Doctors write 60 million prescriptions for sleep-med drugs each year. And with even more people on antianxiety pills, anti-ADHD pills and all kinds of other medications that can impair judgment, jurors can identify with Kennedy’s hectic morning mix-up in a way that they couldn’t identify with someone high on heroin. 

As Dr. Barron Lerner writes in his One for the Road drunk-driving history, “there but for the grace of God” sympathy was once common even in drunk-driving cases—and still exists. Lerner tells readers of a 2009 case in which Cleveland Browns player Donte Stallworth hit and killed a pedestrian in Miami after drinking at a hotel bar. Stallworth served 24 days. And as Lerner quotes one layperson: “If any of you have ever driven after ... a few drinks, or you rode with someone else who did, you [are] no better than Stallworth or anyone else.” 

And though few people think of Lindsay Lohan—a DUI recidivist—as glamorous, even affluent parents look at Lohan and worry their own children will make bad decisions. If people felt that way in 2009 about drunks driving, you can imagine how they feel when faced with convicting a sober mom, even one who kills. 

Another problem is that even after conviction, penalties are low. Had the jury convicted Kennedy, she likely would have served little to no jail time (the maximum is a year), and a three-month license suspension. Lohan spent minutes in a crowded California jail after conviction. Even when impaired drivers kill, prosecutors are lucky to secure a sentence of a few years. 

Kennedy didn’t hurt anyone. But the goal should be to get bad drivers off the road before they harm someone. The goal of broken-windows policing is to stop people from, say, carrying illegal guns before they shoot someone. 

Some change may be coming. New York City lawmakers have introduced a slew of bills to deter dangerous driving. State Sen. Michael Gianaris and Assemblywoman Margaret Markey would make it a felony to hurt or kill someone while driving with a suspended or revoked (or no) license. 

That it’s not already a serious crime to kill someone with a car you’re not supposed to be driving seems startling. But this incremental progress may propel another needed change. The Gianaris-Markey bill—and inevitable high-profile prosecutions under it for deaths and injuries— would help people understand that driving a potentially deadly weapon with a permit is similar to carrying a potentially deadly handgun without a permit. That, in turn, would cause more people to remember that driving is a serious privilege—and to ask themselves if they’re able and willing to obey the law before they get behind the wheel. 

 Nicole Gelinas (@nicolegelinas on Twitter) is a contributing editor to the Manhattan Institute’s City Journal.