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.”