The Quality Of Mercy Is Not Strain’d, But It Is Sometimes Infuriating

"Murdered toddler...price? Oh, I think 5 years is about right."

“Murdered toddler…price? Oh, I think 5 years is about right.”

I find this story, from Virginia, harder to accept than the infamous “affluenza” case:

MANASSAS — A judge has sentenced a Manassas baby sitter to five years in prison for the murder of a toddler she had been watching, leaving the child’s family outraged by the light sentence.Twenty-two-year-old Jessica Fraraccio pleaded guilty last year to killing 23-month-old Elijah Nealey after he wouldn’t stop crying.Fraraccio had initially said Elijah slipped in the tub, but months later admitted pulling a chair out from under him and smothering him.

Why? 1) The murder was intentional. 2) Fraraccio was in a position of trust. 3) She, unlike Ethan Couch, the teenaged drunk driver in the “affluenza” vehicular homicide case, was an adult. 4) As bad as killing someone accidentally while driving drunk (and without a license, and speeding) is, killing a helpless infant intentionally is worse.

Worse also than the lenient judge’s rationale in the Ethan Couch case—she believes the boy can be rehabilitated—is the utterly indefensible theory of the judge who sentenced Fraraccio. From the Washington Post:

Judge J. Howe Brown sentenced Fraraccio to 50 years but suspended 45 and required that she send a check of at least a dollar to a charity of her choosing on the date of Elijah’s death every year after her release. Brown said that he thought a long sentence would serve neither the Nealey family nor Fraraccio. “Nothing I can do brings back Elijah or makes them feel better,” he said about the boy’s parents. Of Fraraccio, he added, “Likewise, nothing I can do to punish her is more important than her memory of what she did.”

This  makes no sense as sentencing theory. No criminal sentence for any crime undoes the harm of the crime. And elevating regret and remorse to the equivalent of punishment means that those who do not feel sufficiently guilty, remorseful or contrite will be punished not for what they did, but for how they felt or didn’t feel about it afterwards. Nowhere in the law, however, does a crime include feelings (except hate crime laws, which are a disgrace to logic and democracy), because feelings cannot be mandated by the government, and laws prohibit acts, not feelings during or after the acts. As I wrote when discussing the reluctance to prosecute parents who inadvertently broil their children by leaving them locked in hot automobiles:

“…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 [and] 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, 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.

Fraraccio killed the toddler intentionally, unless you have another interpretation of these undisputed facts:

“Fraraccio later admitted that while Elijah was eating lunch, she kicked the chair out from under him because he wouldn’t stop crying. The boy hit his head on the table, then the floor.As Elijah wailed harder, Fraraccio became frustrated, then enraged, and picked the boy up with one arm as if he were a football. She covered his mouth with her hand and slammed his head on the stair railing. When she finally put the boy down, his body was limp. Fraraccio had smothered the child to death.”

But she feels really, really bad about it now, so there’s that.

If a society respects life, there must be a proportional societal reaction when an individual, without any justification, callously takes a life. Five years for killing an infant in one’s protection and charge may be considered a reasonable price in Europe, where abortion on demand is cant, euthanizing the elderly is rapidly gaining acceptance and no murder, regardless of how terrible, is deemed sufficient reason to execute a killer. But Europe, as it is in other respects philosophical and political, is wrong. Punishment in the criminal justice system establishes a society’s values and priorities; it is not merely a closed transaction between the offender and the justice system. If the life of an individual has value, and if the taking of that life involved no mitigating factors like self-defense, society must express sufficient disapproval out of respect for the innocent diseased and to re-affirm society’s revulsion of murder.

And what about mercy? Compassion? There is a place for these ethical values in sentencing killers—rarely–but a judge whose over-whelming instinct is to feel compassion for adult murderers because anyone can have a bad day, people deserve a second chance and  “can’t you see she feels terrible already?” belongs in another profession.

Or on another continent.


Pointer: Alexander Cheezem

Sources: Huffington Post, Richmond Times, Washington Post



37 thoughts on “The Quality Of Mercy Is Not Strain’d, But It Is Sometimes Infuriating

  1. Huh… Apparently I do have some semblance of a soul left, because when I read the description of how she killed the baby, my world flashed red and all I could see was me leaping over people in the courtroom and beating the horse-fucking shit out of her in the effort to kill her.

    OK, maybe not that much of a soul…

    Can this sentence be appealed for violating any sentencing guidelines?

    I vote we leave her in a locked room with the baby’s father, and just not bother to check on them for 10 or 15 minutes.

    More if he says he needs more time.

  2. “required that she send a check of at least a dollar to a charity of her choosing on the date of Elijah’s death every year after her release”

    What an insulting judgement.
    Let the parents decide the amount and the charity.

  3. IMO, if JF intent was to murder then she is a murderer and deserves execution. If JF intent was to (wrongly) punish or teach a lesson accidentally resulting in the death of the boy then she deserves life in prison with hard labor. If JF intent was to go beyond punishing and to intentionally torture the boy then she deserves death.

    The judge, who was in a position of trust, should at this point start sending a monthly check to the family for the unjustified anguish he has caused them.

    • I have to partially disagree with your analysis of what should have been done, Jack. The fact that she apparently regrets what she did *should* be taken into account in the sentencing.

      Not, mind, that I think that the sentence that was ultimately given was anywhere near appropriate.

      Main point of disagreement here is whether a lack of remorse is an aggravating factor that should be taken into account in sentencing. Obviously, a remorseless killer is a greater threat to the public safety, a generally worse person, and so on… and, accordingly, I do think that a degree of clemency should be shown to killers who *don’t* show remorse than those who do. As such, I generally think the maximum sentence for murder charges should be reserved for such individuals.

      On the other hand, there are a whole *host* of other aggravating factors that *are* present (e.g. the victim was a minor entrusted to her care). Some of these should be reflected in additional charges (at least some of which she was convicted of); others should be taken into account solely in sentencing.

      Virginia law *does* consider the fact that the victim was a minor a severely aggravating factor in cases of first-degree murder — it, in isolation, would be enough to make this a capital case were the act premeditated (see ).

      For the second-degree murder charge? Well, the sentencing guidelines in Virginia specify 5-40 years for that alone. I think that — for the murder charge, in isolation — something in the 20-30 year range would be appropriate here.

      Then the sentences for the other relevant charges, like child abuse, should be tacked on. I regard the 50-year sentence that was in place before the judge commuted it as, accordingly, something that I view as quite appropriate. The true outrage here is that the judge misused his authority to commute that sentence to the point that he did (and the one-dollar charity thing is just absurd on multiple levels).

      As for your commentary on things like European justice systems, well, that’s another matter. Suffice it to say (for now) that I disagree. At this point, however, I just want to get this comment posted; I’ll make my other points later.

      • As an addendum/modification to the above: I had forgotten that the perpetrator had initially tried to cover up what she’d done by pretending he’d accidentally hit his head in the bathtub… something that rather severely calls into question whether any of her subsequent remorse is genuine. Figure 30-35 range for the 2nd-degree murder charge as appropriate… again, with the other charges being thrown in on top.

        • Agreed. Actual remorse is a sign of having a conscience. Her treatment of the child can be added to your observation about the coverup to indicate that she’s lacking a conscience altogether.

          Here’s a sideways take on our host’s point. Maybe the judge’s action should not be considered “mercy”. Someone who can’t regulate her behavior needs supervision just as much as an advanced Alzheimer’s patient. The babysitter arguably needs a prison environment, and the judge is depriving her of it.

          • That’s a very, VERY slippery slope, Fred. I’ve seen where it leads. No. Just… no.

            She doesn’t need prison. She deserves it. Rationalizing things as “for their own good” doesn’t lead anywhere pretty.

  4. I’ve seen something similar where a serial pedophile was awarded only 1 year of probation — no time — for their misdeads.

    I do find light sentences like this excruciatingly painful to witness while simultaneously witnessing others gain maximum (and in the states multiple maximum) penalties which are beyond insane. I mean how would one execute a sentence for multiple killings with over 300 years of jail time ?? — some new tech to bring people back to life / extend life ?

    I am not sure in the states, however in Canada, if you look at lady justice, she still has the blindfold on, however the scales are not in balance. I remember when they used to look like this >> <>

    It may not seem like much, however I feel this signifies a recognizable shift in Justice, as it has certainly been much more noticeable in the past 10 years. It is a “small” change to the emblem at the back of the court-room behind the judge, and appears to have happened all across Ontario seemingly overnight.

    One need only walk into any court room in Ontario, and a brief term in law school or Greek history to fully comprehend the impact of such a “small” change. This went seemingly unnoticed — two things are without doubt. The scales of Justice on Lady Justice are supposed to be in balance. The scales of Justice on Lady Justice in an Ontario court room, are NOT in balance.

    Check your local court and look at her carefully. Are the scales in balance — or are they tipped. I know that Jack fully understands the impact of the difference between tipped scales, and balanced scales on the statue, and the profound difference in meaning. I personally don’t recall all the particulars except that a tipped scale does signify there is no balance in justice — so its bad.

    Perhaps the scales were tipped in the courtroom where the babysitters trial was located ?

    • Alan,

      I have read numerous stories about Canadian fathers (ie men) being treated with few rights by the Canadian Family/Divorce Courts. There is perhaps the most infamous one of a Canadian divorced father who was unemployed, broke with no money, and was still held accountable to pay child support or go to prison. The day before the police arrived to take him away to prison the man hung himself.

      • Aaron,

        I am not sure of the circumstances surrounding the particular cases you mentioned, however I will point out that when it comes to child support payments in Canada, the amount that is owed varies from the amount that is paid to the parental recipient. The way this works is that the child support payment is made to the Canadian Government. Asynchronously, regardless of receipt of payment, an adjusted amount (usually much smaller than the amount the opposing parent is forced to remit), is paid out to the recipient parent.

        In my observations, I am inclined to agree that it is true that in spite of a stated legal equality between men and women, that in Justice this is not the case in any regard. Women in Canada are still portrayed as a victim even when convicted and sentenced for severe crimes where evidence was anything but circumstantial. In contrast, Men are typically given longer sentences for crimes of similar circumstance. When you look at Canadian jails, they are predominantly men and it is argued that it is this way because men commit more crime — at least that is the way it is intended to be perceived. My statement above was in regards to the profound and made-obvious imbalance in the Justice system of Canada overall, and not specifically between men and women although that is definitely of significance as well, and could in part be what is intended by the deliberate defacing of Lady Justice’s scales in the court rooms.

  5. The Buddhists have a concept called “Idiot Compassion”. I think this judge fits the definition well and hopefully will be voted out of their position in the next election.

  6. Five years for killing an infant in one’s protection and charge may be considered a reasonable price in Europe, where abortion on demand is cant, euthanizing the elderly is rapidly gaining acceptance and no murder, regardless of how terrible, is deemed sufficient reason to execute a killer. But Europe, as it is in other respects philosophical and political, is wrong. Punishment in the criminal justice system establishes a society’s values and priorities; it is not merely a closed transaction between the offender and the justice system.

    Reading that other post, it is astonishing that Europe became so pussified that they want to appease murderers the way they appeased Adolf Hitler in the 1930’s.

    And to think this was the place where heretics were sentenced to death by burning. How they have fallen…

  7. “Punishment in the criminal justice system establishes a society’s values and priorities; it is not merely a closed transaction between the offender and the justice system.”

    Doesn’t that principle provide support for hate crimes laws?

    I’d like to attempt a case in their favor.

    Imagine that, on August 28, 1955, there had been two identical murders, that of Emmett Till and that of a white youth who had been identically beaten and also had his eye gouged out.

    Society fights crime to protect victims, to enable normal life, and to maintain its power to enforce its “values and priorities”.

    The impact of the two murders, the real and the hypothetical, would have been the same for the victims and their families: the terror and pain of young people deprived of everything they could ever have had, and the ultimate horror of parents losing their children.

    Thus far, identical crimes meriting identical legal treatment.

    Their impact on the ability of other to conduct their lives would have been different. White people would have been angry and sad about the white youth, but would have felt free to continue talking to women. Black people would have been frightened into further submission by an act intended to keep them down, and would have been intimidated out of normal social interaction.

    Both murders would have been violation of the “King’s Peace”, but one would have thwarted society’s will to eradicate violent racism. The “values and priorities” of preventing the horror of willful murder would be the same between the two cases, but there was an additional value of lifting the cloud of fear from routinely oppressed Americans and a priority of eradicating racist violence.

    Jack, I don’t expect this to convince you, but it was a good mental exercise.

    • It doesn’t. If the acts are the same, the punishments should be the same, and the feelings of the killers are irrelevant. A random victim chosen for fun is less of an outrage than one chosen out of racial animus? Nonsense.

  8. “required that she send a check of at least a dollar to a charity of her choosing on the date of Elijah’s death every year after her release. ”

    This is straight out of a made for t.v. movie (or some such thing) I saw years ago. A convicted drunk driver is required to send a check of $1 every Friday, every week a year, for every year that the victim had lived (I think it was 19 years or so). Within a few years the check writing begins to make the convicted go crazy… his being constantly reminded of what he had done.

    Wondering if this judge is crafting sentencing from made for t.v. movies.

  9. “Nothing I can do… makes them feel better,” says the “Judge.” No, that’s probably true, but I can think of something you can damn sure do that makes them feel worse.

    We know the child killer was fairly young, and female, was she attractive as well? Or, even if not, was she petite, “sweet” looking, etc? Because I don’t care what judge I have, if I (topping out 6′ and 300 lbs, former football player and current weight lifter) smother-beat a child to death I have money saying how sad I look at trial doesn’t mean fuckall, especially if I lied about it.

      • That may be true but this is a head-exploder. This isn’t a wee bit of bias, this is a child killer getting out of prison in as long as it took me to finish college, and then paying a “penalty” of less than I just dropped at the comic shop, and now I want to go hug every child I know.

  10. A clear case of infanticide. Death by hanging. Then send the judge to prison for five years for virtually decriminalizing one of the most inhuman of all crimes and thus betraying his responsibility to his fellow citizens.

  11. Showing mercy and compassion for a confessed murderer does not offer any relief for the family of the victim, especially in this case where the guilty person lied and denied her culpability for such a long time after she committed the crime.
    It seems to me that judge Brown’s decision was affected by Ms. Fraraccio’s apparent although, maybe not genuine, remorse, lack of a criminal record, and her “christian” background. Nonetheless, she is an admitted murderer, and at the very least, Judge Brown should have given this young woman a sentence that would not see her released until she would be well beyond her child bearing years. In that way, her opportunity to kill another child under her care would be diminished. That would be the most lenient sentence that I would offer if I were judge, and even that would not offer much relief (if any) for the family of the infant victim.
    I am so glad to see that the “Jessica Fraraccio Legal Trust ” web page has been taken offline. The web page, set up Marilyn Fraraccio, Jessica’s mother, asked for prayers for, and contributions to the defense fund of the good, church going Christian, Jessica in the matter described on the web page as a case of the tragic accidental death of Jessica’s young charge; but nowhere on the web page did it offer or ask for any prayers and condolences for the victim and his family. That is not a very christian mode of operation. I personally, do not claim any religious affiliation, so it sickens me to see people using the mantle of religion to make themselves look righteous when their actions demonstrate otherwise.

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