Almost two years ago, I wrote about Washington Post feature writer Gene Weingarten’s provocative and sensitive 2009 exploration of the tragic cases in which a distracted parent leaves a small child in an over-heated car. The issue, now as then, is how society should treat such parents, who are without exception crushed with remorse and guilt, their lives and psyches permanently scarred. Weingarten’s original piece, which won him a 2010 Pulitzer, did not take a position on how such parents should be treated by the criminal justice system. In today’s Washington Post, he does.
“The parents are a continuing danger to no one, nor could anybody sanely argue that fear of prison is even a minuscule factor in preventing this. So we are left with the nebulous notion of punishing, for punishment’s sake alone, an act of accidental negligence that by its nature subjects the doer to a lifetime of agony so profound that it is unfathomable to anyone who has not lived it. Prosecution is not, in my view, warranted.”
Weingarten is thoughtful, analytical, reasonable, compassionate and fair. He is also, in this case, dead wrong.
To his credit, the writer states a powerful bias up front: he once came perilously close to leaving his own child locked in a hot car. “There but for the grace of God go I” has always been a powerful rationalization to excuse any fellow human being from the ravages of moral luck and human frailty. The argument always goes too far. I know that if I had worked in the Nixon White House, I could have easily been persuaded that when the President needs illegal acts done, they aren’t really illegal. I cannot say that if I had been subjected to the stresses of Staff Sgt. Robert Bales, I would not have snapped and started slaughtering Afghan civilians. If I had been raised fatherless and in a poverty-stricken ghetto, I might have sold crack for a living, or engaged in organized crime. But I would still be accountable to society for my actions in each of those instances.
Weingarten concentrates his new piece on Bristow, Md. veterinarian Karen Murphy, who killed her two-year old by unintentionally leaving her in a locked car. Murphy’s only punishment was 400 hours of community service for a reduced charge of misdemeanor child neglect. I will stipulate to Weingarten’s assertion that she is a wonderful woman; I will assume, for the sake of argument, that all the parents who do what she did are wonderful, wonderful people. But society’s punishment is not based on how good people are, but on what they do, who they harm, the messages society needs to send and the standards it needs to uphold for its well-being and survival.
As is typical of those who are uncomfortable with criminal justice, Weingarten describes the goals of punishment this way:
“Criminal prosecution and incarceration are said to serve three purposes: punishment, protection of the community and deterrence of others with similar malign intent. In these cases, the last two goals disappear.”
No, they don’t.
As I wrote in 2010,
“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…
I have written before about how the military traditionally takes the position that when the horrible event occurs, someone must be held accountable, because to punish no one is to suggest that the event couldn’t be prevented, and that it is tragic, but excusable. Saul Levitt’s drama “The Andersonville Trial” makes the point in a disturbing manner as it explores the plight of Confederate Capt. Henry Wirz, who was executed following the American Civil War’s one war crimes trial for permitting the inhuman treatment of Union prisoners at the Andersonville (Ga.) prison camp. As the trial unfolds, it is clear, as Wirz says, that he was powerless to stop the horror, that he was obeying orders, and that not one of the men sitting in judgment of him could and probably would) have done any differently in his position. (Indeed, treatment of Confederate prisoners at a Union camp in Elmira, NY, was arguably worse.) Yet the public had seen the shocking photos of human skeletons, and to allow the individual in charge to escape with punishment that did not seem commensurate with the horror would suggest that society did not find what occurred sufficiently repellant to insist that it must never happen again.
Protection of the community is not only accomplished by keeping an individual guilty of a crime from committing the same act again. I agree with Weingarten: Murphy is probably the last person society should fear will kill another child in a hot car. That literal definition of protection is not the only one at issue when an act leads to the death of a child, however. Society is also protected by confirming the value of life; it is protected by emphasizing the immense responsibility of parenthood; it is protected by a system that says, “These human lives are dependent and vulnerable, and you voluntarily accepted the responsibility of keeping them safe and healthy. If you don’t, there will be serious consequences to you, commensurate with what your failure inflicts on them.”
I think society shrinks from that message at its peril.
And it shouldn’t matter how remorseful and guilty the parent feels, as Weingarten suggests. From my 2010 Ethics Alarms post:
“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.”
Again, as in his piece three years ago, Weingarten’s argument has a disturbing classist tinge. He writes,
“Should these cases — where there is no intent to harm and no additional contributory negligence such as substance abuse; where the event was triggered entirely by a lapse of memory — be treated as crimes?”
That’s a slanted description of the issue worthy of an attorney’s appellate brief, but it is a misleading one. Forgetting you have responsibility for a vulnerable child in your custody isn’t “a lapse of memory,” like forgetting the car keys, and Weingarten knows it. If a parent attached a toddler in a harness to his car’s bumper so he could pack up without distraction, and then absent-mindedly drove off, like Chevy Chase did in “National Lampoon’s Vacation” (with horrible consequences to Aunt Edna’s dog), would Weingarten similarly call that a “lapse of memory”? Why is a single mother in Watts juggling six kids and a job, who leaves one child in a car after smoking a joint or having three beers, more worthy of blame and punishment than a workaholic Concord, Mass. father with a six figure income, whose mind is more on that mega-million dollar deal he has to close than his helpless child in the back seat?
The law treats driving a car while sleep deprived or otherwise incapable of operating a car safely as it does driving drunk, and there is no reason not to regard having primary charge of a child’s life as equally worthy of a strict societal standard. You are a parent; you have a human life in your care, and you have that life in your care by your acceptance of that responsibility. It is your duty to recognize that child’s life as your first priority, and if you allow yourself to be distracted by work, stress, illness, drugs, booze, or anything else… and your child dies as a result, you have failed a parental, societal and legal obligations leading to the loss of life, you will be punished accordingly…and it doesn’t matter haw bad you feel about it afterwards:
“…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 the 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.”
Ethics Alarms 
Seems people should know you don’t leave a child alone in a car. I can understand prosecuting those that do and it results in harm to the child. I’m wondering,though,should this apply to the mom who leaves a child in the tub to answer the phone? Or the grandparent who finds their grandchild drowned in their pool? They will say they were only gone 5 minutes.
Two minutes is enough, Karla. That’s how long it takes for irreversible brain damage to occur through oxygen deprivation. Small children are also terribly vulnerable to heat stroke. In the summertime (especially here in Texas!) interior of a closed vehicle can easily shoot up to 140 degrees.
Jack: You forgot to mention another reason why such people should suffer legal consequence. It’s called penance. I maintain that NOT to punish such parents may be the worst thing of all. They are forced to live with the guilt. At least some remittance can take the edge off of it.
I was thinking about penance too. The punishment could ironically be a blessing in disguise.
Is there any substantial difference between forgetting a child in the back seat of a car – as I recall, the woman in question forgot that the child was there, as opposed to knowingly leaving him/her there – and, say, a parent leaving the iron plugged in or the gas stove on, sparking a fire in which his or her children had died? Are these cases different in principle, being accidental acts of negligence with fatal consequences?
Several years ago, a friend and co-worker was fatally shot by her husband, who as I recall was changing the grip on his handgun, not realizing there was a live bullet in the chamber. I don’t recall if he was charged with any crime, criminal negligence or otherwise.
Yes. There are accidents, and there is negligent homicide. Sometimes the difference is whether the effect is direct or one step removed. Leaving the child in the car kills the kid. Leaving the iron on starts a fire that burns the house that kills the kid. The latter is a tragic accident, because the result of not turning off the iron is not necessarily going to kill the child. The former is direct. The law won’t usually impose strict liability for not being responsible with an appliance, but not being responsible in the care of your child goes into a different category.
I agree that the lines can be fuzzy.
Sometimes the difference is whether the effect is direct or one step removed.
That’s a horrible standard. It’s also a silly analogy
Leaving the kid in the car doesn’t kill the kid. If the cars windows were down, the kid wouldn’t have been killed, and you would have considered it a simple mistake. Your analogy continues to fail later on. How as the parent who left the iron on not a case of not being responsible in the care of a child? How was making a mistake with the car not simply not being responsible with an appliance?
The line isn’t just fuzzy. It’s imaginary.
Punishment for moral luck does not teach society what we shouldn’t do, it teaches society that punishment and capricious and random. It teaches society to fear anything that could possibly be harmful, instead of making sound decisions. Your take on punishment of accidental behavior is how we get to no-tolerance policies (not to mention that you don’t even pretend that mens rea needs to be met).
Is leaving a kid in an oven direct enough for you?
I’m not even sure the negligent death of the child in the care scenario IS moral luck. It’s luck if he’s saved.
Arbitrary or not, the laws has to draw these lines. I think the distinction between a parent who leaves the iron on and starts a fatal fire (accident) and the parent who isn’t paying attention to a parent’s number #1 job (taking care of his own child) and kills the kid as a result is pretty clear. Not to you?
Putting the kid in the oven is enough for me.
Your distinction is, again, not a distinction. Why do you call the one an “accident” and the other “not paying attention to a parent’s #1 job”? There is no difference in your situations.
Addendum: negligent homicide doesn’t require “mens rea,” just a level of negligence that is deemed criminally inexcusable. Nor are the car situations enforced in “no tolerance” fashion: there could be mitigating circumstances. Not tolerating work-obsessed parents letting their children die through inattention? I don’t think it should be tolerated…that’s my point.
Your claim that leaving a kid in the hot car is misusing an appliance is too silly to argue with. The car is just fine. It hasn’t been abused at all.
Why are you so tolerant of parents killing their children? This is becoming a disturbing theme.
Mens rea: Negligent homicide does require mens rea. It requires the intent to do the act that you did. If you intend to leave a child in a hot car, the mens rea is reached. You didn’t intend to kill him, but you did intend to do the act that we are calling negligent.
car vs iron: the iron is just fine as well. It hasn’t been abused at all. My argument is that both are accidents that lead to death. Is the iron better because it relies on the kid doing something as well?
parents killing children: I am not tolerant of parents killing children. I, sanely, don’t define a fetus as a child, and I don’t punish people for accidents. An equivalent question would be “Why are you so tolerant of economically suicidal policies? With your comments about Obamacare, social security, and stimulous spending, this is becoming a disturbing theme.” Not in the least bit fair.
Negligence depends on whether there was neglect involved. In leaving a young child locked in a car on a hot day, or changing the grip on a handgun without first checking if it is unloaded are both neglect of basic health and safety practices with foreseeable tragic consequenses.
As for a mom who leaves a child in the tub to answer the phone, or the grandparent who finds their grandchild drowned in their pool, I timed it at four seconds to run from my spa pool to the phone, pick it up and run back outside, and ten seconds from the bath and back. Here negligence would depend on the age and swimming ability of the child, and time away from the child. Besides if I was expecting a call I could take the phone with me or otherwise leave it to the answerphone.
Bingo, Errol.
Addendum 2: Let’s take the “dead kid in the car” test. How would you rank these tragedies in parental culpability, and who would deserve more than community service as a punishment, if anyone?
1. Homer is hot and thirsty, and stops into Mo’s for a quick beer, intentionally leaving Maggie in the car. He gets in a game of beer pong, and loses track of the time. Maggie’s dead.
2. Ned is driving with his infant niece in the car, and sees someone defiling a creche on the Town Hall lawn. He is enraged, leaps out and gets involved in a long altercation, forgetting about his niece. Dead.
3. Cletus leaves his 12th and youngest in the car while he goes picking up road kill, because he doesn’t know any better. She dies.
4. Dr. Hibberd is worried about a patient, and stops off at the hospital while driving his child to day care. Once in the hospital, he is introduced to one crisis after another, and his grandson, whom he has totally forgotten about, cooks in the car.
5. Snake is mad at little Snake Jr, and decides to punish him by leaving him in the hot car. He is arrested as he tries to return, and the arresting cop refuses to listen to his screams about little Snake, who is toast.
I’m assuming Homer, Snake, Ned, and Dr. Hibbert know that it’s extremely dangerous to fatal to leave children in hot cars.
Does Dr. Hibbert intend to leave his child in the car? If so, it’s
5
1/4
3
2
If not, it’s
5
1
3
2,4
The bottom case in each is pure accident. Community service is too much. Accidents are accidents. I’m somewhat torn on Cletus’, but I’d say community service or minor jail and his other kids taken away is enough. Homer or Homer + knowing Hibbert are serious jail time. Snake gets more jail time because he intended to abuse his child.
Thanks. When I get time, I think I’ll expand this and your picks into a full post. It’s a tough issue, and this helps me.
Compelling argument. We cannot read minds, validate others’ feelings, nor even accurately assess the mental status of someone at a given time. All we can go on is the law as it applies to the situation/act itself. The professional side of the justice system — judges, prosecutors — has room in its education and practice for learning this and agreeing to apply it.
But how, then, are the members of the jury, in the face of ever stronger media influence and social pressure, to grasp the difference when there are more (emotionally) compelling precedents to the contrary?
Not to mention the likelihood of their having to live with an unpopular verdict afterward in the public fishbowl of face-space-twit-text exposure and quasi-news programs. A cousin of mine and a long-time coworker have served on juries in the past year involving cases similar to the examples above (though not so widely advertised) and their identities were exposed even while one was sequestered. Fortunately for them, they are living with popular verdicts, but it looks like it is becoming more difficult to protect the privacy of those who go against public opinion. (Sorry to get off the subject, Jack, but sometimes the “purer” you get, the more impractical seems the possibility of purification.)
I agree with your points, and yet, you said something in your 2010 post that I could not let go: “…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.”
In particular, “…government can’t make feelings a crime,…” – aren’t “feelings” part of the basis for prosecution of hate crimes? Isn’t evidence of the motives of a suspect a factor in proving the specific crimes a defendant is charged with, or in determining, say, degrees of negligence?
Absolutely, which is why I think hate crime laws are an abomination, and should be unconstitutional. I think the judiciary has been flat out wrong about this. Hate crimes criminalize thought.
I absolutely agree, thanks.