Just recently, an Indonesian woman drove her car against several pedestrians, killing at least 8 of them and injure 4 people (or maybe more). Several news reports said that the woman had consumed narcotic drugs prior to the accident, adding the number of crimes that she might end up with in the court. Obviously, this type of case will fall under the definition of either unintentional murder or reckless acts which cause death. But what I would like to explore more is the possibility of imposing intentional murder provision against the defendant.

Once there was a case in Indonesia where a bus driver drove his bus and dozens of his passengers to oblivion by throwing the bus directly into a river. The driver was driving so recklessly and in such a high speed that he lose control of the bus and end up flying from the bridge. He survived, but unfortunately most of his passengers were not as lucky as him. The state attorney who filed the suit against him felt so disgusted that he claimed that the driver has conducted an intentional murder. He absolutely knew that his action was very dangerous toward himself and his passengers, yet he failed to drive properly. Even worse, some witnesses testified that they have warned the driver how dangerous is his driving and he simply ignored the warning. The end result was a disaster.

I forgot how the case ended up, if I am not mistaken, the state attorney won the case. It is true that the Indonesian legal system does not recognize precedent system where a final and binding court decision can also bind future decisions. Still, it is a good case and can be used to inspire other cases, possibly including this case. But before we move to this case, I would like to discuss first whether it is correct to consider this kind of "recklessness" as an intentional action.

Standard law and economics analysis says that a person should be liable for damages to his victim due to an unlawful act in case the costs of him for avoiding such act is lower than the costs imposed to his victim multiplied with the probability of such action to occur. The mathematical formula would be as follow: B < PL where B is the cost for avoidance, P is the probability of the act's occurrence, and L is the losses incurred by the victim. The higher the intention of the defendant, the higher the probability would be. In certain cases, the value of P could be maximized into 1 or 100% chance that the action will occur and the victim will absolutely incur losses. Take as an example a person who intentionally hit other person without any reason.

The bigger the P is and to the extent such amount of P is increased due to the contributory action of the defendant, the higher the liability of the defendant should be. Why? Again, standard law and economics analysis will say that when the increase in P is caused by the defendant action, the sanctions to be imposed to him must also be increased in order to increase his costs of doing unlawful action. The problem with this analysis is that it ignores the subjective intention of the defendant, something that is still perceived as an absolute thing in classic criminal law, i.e. the Mens Rea element.

There is a good reason that intention should not be seen merely from the subjective point of view. When you drive in a high speed under the influence of drugs and on a busy road in a city, you ought to, no you must absolutely know that your action is really, really dangerous. To say that it is a reckless driving merely on the basis that you don't intent to kill anyone seems absurd and does not make any sense. That is why I would prefer the objective standard of reasoning used by law and economics to establish an intention to do criminal activity. This is a case where the amount of P would most likely reach 1 (or 100%), it would be miracle if a driver in such state would not produce any accident whatsoever.

At this stage, we do not know the entire facts, so I can't judge the end result. But if it is true that the driver drove within the influence of drugs and in such a reckless way, it is suffice to say that she should be deemed of doing an intentional murder. Note this, the punishment of intentional murder is 15 years while the punishment for reckless act which causes death is only 5 years, so there is a huge discrepancy which is determined by how we perceive recklessness and intent to do crime. Furthermore, I would say that further investigation should also be done against the passengers of the car. Just to ensure whether they know that the driver did have problems and still let her to drive or whether they have acted properly and reminded the driver. This kind of act should not be left unpunished and proper sanctions should be given to ensure that we are giving the correct incentives to the society.