Washington Post columnist Gene Weingarten received a Pultitzer Prize for his feature, “Fatal Distraction: Forgetting a Child in the Backseat of a Car Is a Horrifying Mistake. Is It a Crime?” Focusing on the grief of parents who caused the deaths of their own children by negligently leaving them locked in over-heated cars, Weingarten, to his credit, doesn’t advocate a position in his article, although it would be impossible to read it without feeling compassion and empathy for his subjects, both those who have been prosecuted and those who have not.

The article squarely raises a classic ethical conflict, as well as the question of the role of punishment in society. As always with ethical standards, the issue ultimately encompasses how we decide what is in the best interests of society. Weingarten points out that there is no consensus on whether parents who inadvertently kill their children in this way should be brought to court: some prosecutors bring charges, others do not. Which is right?

I don’t like my answer much, but I think it is inescapable, once the emotion is left behind. Leaving a baby to die in an over-heated car is negligent homicide, by definition. The parent was negligent, and somebody died. The arguments raised by Weingarten’s accounts that support the contention that no crime should be charged are enticing, but in the end, ethically unpersuasive.

“I don’t feel I need to forgive myself,” says a mother profiled in the article, “because what I did was not intentional.” Would we apply her reasoning to all negligent and irresponsible behavior? The drunk driver who kills an innocent motorist did not intend to hurt anyone either. Intent is not an element in negligent homicide. The crime is permitting the factors to exist that lead to the death of another human being. In cases of forgetting about a child in the back seat, the conditions are stress, distraction, carelessness, task overload, and misplaced priorities. If one has an obligation to protect and care for a child above all else, taking care of an infant or toddler while dealing with these factors is exactly like driving while intoxicated. The killing wasn’t intentional, but the factors leading to it were based on choice. If you cannot pay sufficient attention to your child to guarantee his safety under your care, then it is wrong to do it. Society has an interest in stating and enforcing that principle, which means punishing those who violate it.

Pervading the issue is the perplexing factor of moral luck. We all recognize that the crime, if that’s what it is, could be committed by any of us: who hasn’t tried to juggle too much stress, too many thoughts and errands, knowing that doing this sometimes leads to various catastrophes? Yet whether being irresponsible  leads us to total a car by falling asleep at the wheel (as I did five years ago—and I was indeed prosecuted), leave a baby to bake in the back seat, or nothing at all is only moral luck. The misconduct is the same, but, somewhat illogically, its seriousness is measured by society according to how much damage results, and that is often a matter of random chance. This seems unfair because it is unfair, and we are tempted to excuse the morally unlucky by thinking “There but for the grace of God go I!”; convenient, because in excusing the morally unlucky, we excuse ourselves. And that makes it easier for us to continue being irresponsible…until our luck runs out.

The prosecutors who don’t bring charges seem to be adopting the position that this is a crime that “carries its own punishment,” that applying prosecution and more is inherently cruel, piling on, kicking someone who is not only down, but kicking himself. But the father who accidentally kills his son by striking him too hard while in a rage; the mother whose toddler poisons herself by ingesting the crack cocaine her mother left on the table; even a Susan Smith, who murdered her two children, all have created their own “punishments” too. To conclude that society should just allow these horrors to occur without making the statement, “This is intolerable, and the person responsible for an avoidable tragedy must be held accountable by the law” constitutes a moral, ethical and legal shrug, like Jerry Seinfeld’s trademark “Ahhh, that’s a shame!”

When, exactly, should a death caused by another’s negligence rise to the level where it requires official sanction?
The answer offered by many would be, “When the person causing the death doesn’t feel bad enough about it.” That, however, constitutes punishing individuals for how they feel about what they did, rather than their conduct itself. The government can’t make feelings a crime, any more than it can make speech a crime. If we are not going to punish the grief-stricken father who has to be restrained from killing himself when he discovers his dead child (as described by Weingarten), we can’t punish the mother in the same situation who shakes her head and says, “Oh, well. At least I have three more back home. And we can use the extra room.” Her feelings and her words may be repugnant, but she has a right to them.

What she doesn’t have a right to do is kill her child through carelessness, no matter how pervasive carelessness is in modern life. “What kind of person forgets a baby?” Weingarten writes…

“The wealthy do, it turns out. And the poor, and the middle class. Parents of all ages and ethnicities do it. Mothers are just as likely to do it as fathers. It happens to the chronically absent-minded and to the fanatically organized, to the college-educated and to the marginally literate. In the last 10 years, it has happened to a dentist. A postal clerk. A social worker. A police officer. An accountant. A soldier. A paralegal. An electrician. A Protestant clergyman. A rabbinical student. A nurse. A construction worker. An assistant principal. It happened to a mental health counselor, a college professor and a pizza chef. It happened to a pediatrician. It happened to a rocket scientist. Last year it happened three times in one day, the worst day so far in the worst year so far in a phenomenon that gives no sign of abating.”

The passage has several disturbing subtexts. Is he saying that because the list isn’t full of drunks, teenage single mothers, and unemployed, we should be more sympathetic? Is the dead infant son of one of these more important to protect than the dead toddler of a”rocket scientist”? Does the fact that the negligent parents are smart, accomplished or wealthy mean that their fatal error is more excusable? (I would say, if anything, it is less excusable.) Or is he just saying that “everybody does it”? Because, thank goodness, “everybody” doesn’t.

A crime is a violation of a social norm that society has declared is critical to civilized life. No social norm is more important than the duty of parents to care for their children, and it can only be protected and encouraged if society enforces it vigorously and fairly. The single, impoverished mother who leaves her baby with a young sibling while she goes to work at night will be charged with child endangerment or worse if the sibling accidentally scalds the baby to death or drowns her trying to give the child a bath. That mother, however, had less control over her life than the rocket scientist, or any of the sad parents in Weingarten’s article. We extend them an extra measure of empathy because they seem more like us, perhaps, but there is really no difference. The parents took unacceptable risks with their children’s lives, and children died. Society, through the law, must not simply treat this as an accident, something that couldn’t be helped.

Remorse and regret are not a substitute for punishment, which carries the important function of assigning accountability for the conduct and results society wants its members to avoid. It is irresponsible to rely on feelings, grief and remorse to accomplish such an important goal. Is it a crime to let your own child die in the back seat of a car? Of course it is. And we shouldn’t reduce the significance of  such a crime by refusing to punish it.