It was mid-morning, three days after Christmas 2000 when 27-year-old Michelle Herd, racing through the night to Great Falls from western Washington to attend to her ailing mother, began driving eastbound in the westbound lane of U.S. Highway 200 near Potomac. Rounding a curve, Herd drove her full-size pickup head-on into a Swan Valley family's Volkswagon Beetle. Stacy Good and her children Arundel, Kilty and Marcus all died the fiery crash. It was the worst, most senseless and easily the most preventable wreck in our memory.
Exhausted by the long drive, perhaps stressed over her mother's health, Herd said she thought she was driving on an inside lane of a four-lane highway. That's a plausible explanation but darned a poor excuse. If ever there was a case of negligent homicide committed from behind the wheel of a car, this was it. It's not a question of intent. It's a question of reasonable care - the lack of it. No matter what your sense of urgency, no one should drive with so little sleep or awareness that you can't tell you're driving on the wrong side of the road in broad daylight. Herd pleaded guilty to four counts of negligent homicide.
Herd appealed the driving restriction.
It's somewhat difficult to imagine why someone would ever want to drive again after so negligently, so horribly snuffing out the lives of nearly an entire family. It's also surprising that someone escaping 80 years in prison would appeal something so relatively minor as a loss of driving privileges. But appeal she did. And this spring, the sometimes-erratic Montana Supreme Court ruled Judge Larson had abused his discretion in adding a 40-year driving prohibition to Herd's sentence. That restriction "inhibits Herd's ability to make a living, serve the needs of her family and pay court-ordered restitution," the court declared in its 5-2 decision.
In reaching its opinion, the court's majority set aside its past practice of reviewing sentences only for legality and leaving to the state Sentence Review Division all questions regarding excessive or abuse-of-discretion sentences. Ironically, the Sentence Review Division only considers sentences that involve more than a year behind bars. Herd had escaped significant jail time, so was ineligible for sentence review through the established channels. In other words, her sentence was so light that the Supreme Court had to create a new "hybrid standard" in order to consider her sentence and declare it excessive. In focusing on the inconvenience the driving restriction imposed on Herd, the court's majority scarcely seemed to notice the fact that Herd's negligence sentenced four people to death with no opportunity to appeal, or that there is more than one family with needs to consider. The court clearly was oblivious to the added pain and injury Herd inflicted on the surviving Good family members by petitioning for redress of her mere inconvenience.
Chief Justice Karla Gray, in a strenuously worded dissent describing some of the majority's reasoning as "nonsense," aptly described Herd's sentence as a "gift." Justice John Warner co-signed her dissent. "The tradeoff of not driving for 40 years as opposed to incarceration for 80 years, for a person whose driving has killed four people, seems an easy and very reasonable one to me," Gray wrote. She got it right.
The majority of the Supreme Court may be fuzzy when it comes to matters of accountability, but Missoula Judge John Larson isn't. The Supreme Court remanded the case to Larson for resentencing. Larson obliged July 14. He sentenced Herd to five years in prison, followed by some community service. In addition, he barred her from driving for 40 years in Montana; elsewhere, she'll be eligible for provisional driving for work and family purposes in 20 years, but only to drive small cars accompanied by another licensed driver. Larson's new sentenced is carefully, deliberately worded in ways that would force the Supreme Court to cross its new "hybrid standard for review of sentencing" with even more nonsense in order to overturn it. However, Herd's five-year term does now qualify for review by the Sentence Review Division. Perhaps she will yet succeed in regaining her driving privileges.
No matter whether Herd ever drives again, nothing's going to undo the damage she did. For the Good family, for those four lost lives, and all connected to them, actions unmistakably have consequences. There can be no justice in a legal system that expects victims to bear virtually all of the consequences stemming from someone's act of negligence.
The new sentence pronounced by Judge Larson is a principled, refreshingly defiant display of judicial courage and a reminder that one of the consequences of crime is punishment. Punishment can be downright inconvenient. That's the whole idea.
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