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April 12, 2009

Are state child abuse sentences often too low?

This long local article from South Carolina, headlined "Child abusers escape jail time," prompts the question in the title of this post.  Here are snippets from the article:

Since 2002, S.C. judges have given no prison time in at least 10 cases in which defendants were initially charged with inflicting great bodily injury on a child — a felony that carries a maximum 20-year sentence but no minimum.... Short of death, the charge is the most serious involving harm to a child. By comparison, a person who seriously injures an adult can be charged with assault and battery with intent to kill, which also carries a 20-year maximum....

A state Senate Judiciary subcommittee on Wednesday will consider a bill ... that would require mandatory two-year prison sentences for day care operators convicted of inflicting great bodily injury on a child.... “It’s unconscionable for any judge to give anyone who pleads guilty to injuring a child probation,” said Veronica Swain Kunz, chief executive officer of the S.C. Victim Assistance Network. “It goes back to women and children being viewed as property.”  She said she supports the state bill being considered Wednesday, noting, “I think (minimum mandatory sentences) should be much, much greater than two years.”

But prosecutors and judges interviewed by The State raised concerns about the bill, introduced Jan. 29 by state Sen. Mike Fair, R-Greenville.  They said mandatory minimums rob prosecutors and judges of flexibility in crafting pleas and sentences, which could result in more trials and a backlog of cases in an already overburdened court system.

“They’re looking at the wrong end of the telescope,” said 15th Circuit Solicitor Greg Hembree of Conway, past president of the S.C. Solicitors Association.  “If you have one judge who’s off the reservation, you get rid of the one guy.  We’re building systems all the time for the one exception.”

Circuit Judge Paul Burch of Pageland, president of the S.C. Association of Circuit Court Judges, said the Legislature needs to be “real careful about what they need to do about mandatory minimums,” though he noted the association has not taken an official position on the issue.

Burch and Circuit Judge Edward Cottingham of Bennettsville were the sentencing judges in two of the 10 probation-only cases in The State’s analysis.  Both said their sentences were based on recommendations from prosecutors.  “When possible, I accept the solicitor’s recommendation because he knows things I don’t know,” Cottingham said.  “But if I had a child in front of me who was really hurt, I would make a great deal about differing with the solicitor.”

It is notable and encouraging to hear state prosecutors advocating against a mandatory minimum prison sentence, though it is not difficult to understand why victim advocates in this context are troubled by frequent sentences of probation in cases in which a child is badly hurt.

April 12, 2009 at 01:57 PM | Permalink

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Comments

If the crime doesn't include sex or seduction then who cares? its only children, they are better off dead then raped.

Posted by: MarkM | Apr 12, 2009 3:10:47 PM

My problem here is the initially charged with language. Given how overcharging appears to be the norm I don't see how taking the initial charge asan indication of reality is all that useful a measure.

I've mentioned this before, wondering if there is some better way to examine the criminal justice system and pleas in terms of what actually happened compared to the final plea. I'm honestly not sure that any base data exists to make a determination of that sort.

Posted by: Soronel Haetir | Apr 12, 2009 5:34:16 PM

Here is a database Berman will never provide.

http://www.ojp.usdoj.gov/bjs/homicide/children.htm

And what is the cause of most of these? Bastardy. A child without a father has a 100 fold chance of being murdered, compared to one living with a father, even if the natural father is a criminal.

Thank a lawyer if you like infanticide. The lawyer destroyed the black family in the 1960's after it survived slavery, discrimination, poverty, plague, and lynchings. It did not survive the lawyer.

The lawyer has now come after the white family, and it is doomed. Expect the violent crime victimization rates between the races to even out.

Posted by: Supremacy Claus | Apr 12, 2009 5:56:33 PM

"My problem here is the initially charged with language. Given how overcharging appears to be the norm I don't see how taking the initial charge asan indication of reality is all that useful a measure."

I came here to say exactly this.

Posted by: Daniel | Apr 12, 2009 6:49:52 PM

in the state where i practiced as a trial public defender for 5+ years, provable felony child abuse and injury cases routinely resulted in sentences exceeding the numbers typically meted out for 2nd degree murders. they must be bringing a lot of crappy cases. it's not as though there's a constituency rallying the troops on behalf of child abusers, after all (yes, I know SC, except for criminal lover lawyers).

Posted by: fedpubdefender | Apr 12, 2009 8:31:08 PM

FPD: Are kids like blacks? Murder them, and the sentences are shorter.

Posted by: Supremacy Claus | Apr 12, 2009 9:07:56 PM

Victims could use a little lawyer love. This is how it can happen. Reverse the long series of cases holding that the police has no duty to individuals. Of course, that is a self-dealing lie.

The duty is to the city. If these cases cannot get reversed, then sue a police department for failing in its duty to an intermediate party, a neighborhood. I live in a lawyer residential neighborhood. There is almost no crime. Shoplifting makes the newspaper. Show a gun in a store here? Three police cars show up in 2 minutes. College educated police emerge, blasting. The death penalty is at the scene.

It is five miles from Fallujah, where crime is the only activity.

Posted by: Supremacy Claus | Apr 12, 2009 9:23:44 PM

But. . .Wouldn't one need a lawyer to sue the. . .police. . .department. . .? Employing a lawyer thusly would allow that rent-seeking lawyer to purchase all the best tinfoil hat finery available, thereby causing a shortage of such headgear, which would have a detrimental effect on availability for embittered persons who failed to prevail in their lawsuit lottery. . .

Posted by: Mark#1 | Apr 12, 2009 10:55:34 PM

Mark: You are a rare person willing to respond. Thank you. I think your repartee is great, very intelligent.

I like the rule of law, the Constitution, and just about all lawyers. I like them when they add value. I do not like them in utter failure, and when their hierarchy puts the rent above the safety of the public.

I believe in torts. I oppose all tort reform, including limits on punitive damages. Torts is one avenue to improving the lawyer business. Why is the judge and the lawyer above the law of torts? It is idiosyncratic, self-dealt, unjustified practice that is harmful to the profession. One could sue the Emperor of Prussia. His lawyer would show up and defend the case. The immunity of the sovereign is based on the unlawful and false premise that the sovereign speaks with the voice of God.

It is also unconstitutional, Communist industrial policy. Immunity grows a sector. Liability shrinks a sector. The court has no competence to make such policy.

http://supremacyclaus.blogspot.com/2007/09/immunity-and-liability-are-stealthy.html

The lawyer has destroyed manufacturing. He is seeking the destruction of pharmaceuticals. With his self-dealt immunity, the lawyer business is booming. Every lawyer now destroys $1 million a year in economic while alive. The destruction of manufacturing in the US, the unemployment, the economic crisis are the fault of the lawyer profession. I want the lawyer to compensate the victims of his carelessness. The lawyer enacted wrongful laws forcing banks to lend mortgages to crack addicts. It funded thugs that invaded banks to intimidate bank officers. It forced banks to mark assets to market. It failed to protect underwriters who protested the loans to crack addicts, and was in utter failure in its regulatory role, under current law. Punitives are justified, since these laws were to increase lawyer employment. I know the lawyer does not have $trillions for compensation. The alternative is to exclude the lawyer from all benches, legislative seats, and policy positions in the executive, preferably by a constitutional amendment.

Posted by: Supremacy Claus | Apr 13, 2009 6:59:13 AM

FWIW, in Texas victim advocates have opposed long mandatory minimums on child molestation charges because it makes family members less likely to report abuse.

While it's possible to find individual anecdotes where somebody gets probation, there are almost always extenuating circumstances particular to the case (e.g., the prosecution couldn't prove their case and cut a deal because they wouldn't have secured a conviction). IMO it's absurd to question whether sentences for this offense are "often too low." In point of fact, most child molestation sentences are quite long.

Posted by: Gritsforbreakfast | Apr 13, 2009 9:51:37 AM

I came to say exactly what Soronel and Daniel said. The best they can do is ten cases is seven years, based on an "initially charged with" standard? Looking at the actual article, though, I must say that many of the examples given appear to involve admissions of serious conduct. (E.g., a "day care operator who has been in the news for receiving probation after admitting to slapping then-7-month-old Kendra Gaddie so hard last year that it caused bleeding on her brain".) So, perhaps while the article erred by implying that initial charges are a meaningful barometer, the underlying facts of these cases---as measured by evidence, not allegations---are actually worrisome.

On a separate note, I wonder if prosecutors were willing to negotiate probation recs in these cases because they had proof problems. (Several of these are purported "shaken baby" cases, where there is always a concern over both the quantity and quality of available evidence.) If prosecutors are pretty sure someone abused a child, but aren't sure they can prove it, they can get a 10-year suspended sentence hanging over the abuser's head, presumably impair the person's ability to work with children, and gain the right to stick the state's nose into the person's home through probation supervision. This may be much preferable to the risk of an acquittal.

Posted by: Observer | Apr 13, 2009 10:19:13 AM

I have often noticed an easy exchange of the terms "child abuse" and "child sexual abuse". The sociology articles I've studied cite that child abuse more often leads to psychiatric illness than does sexual abuse, but our society metes out 25 year minimums and several life sentences to child sexual abuse, no matter how flimsy the evidence. Yet, the act that causes more long term harm, child abuse (especially when done by a parent) has the short sentences with no minimums. Even in the above comments, the terms child abuse and child molestation were interchanged.

Posted by: Donna | Apr 13, 2009 2:02:55 PM

Donna. You are spot on with that observation; it's something I have noticed to. I would suggest that the reason is that "child abuse" is a term of art, especially among the more conservative elements of our society. For example, is spanking a child abuse or not; people disagree. On the other hand, there is a broader range of social agreement on the issue of child sexual abuse. And it's that social agreement that's the key. We don't punish child sexual abuse because it's more harmful to the child; we punish it more severely because in adult society we find it more morally distasteful. Slapping a child until their head bleeds, that's just an overzealous parent. Touch a child "down there" and it's ZOMG sick perv, kill them.

My own belief is that the press is deliberately coy with the fact to sensationalize stories. Sex sells but abuse does not.

Posted by: Daniel | Apr 13, 2009 2:38:50 PM

Thank the out of control, feminist lawyer, and their male rent seeking running dogs, for this hysteria.

Posted by: Supremacy Claus | Apr 13, 2009 6:01:28 PM

The initiative taken for the concern is very serious and need an attention of every one. This is the concern which exists in the society and needs to be eliminated from the society as soon as possible.
**********
gordon

Solicitor Birmingham

Posted by: gordonr | Oct 24, 2010 9:47:43 AM

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