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November 2, 2011

State mandatory minimum requires Oregon faith-healing parents to serve long term for manslaughter

Though I am still working my way through the important new US Sentencing Commission report on mandatory minimum sentences, this local article from Oregon is a reminder that many states have notable mandatory minimum sentencing rules that apply in many notable settings.  Here are the details of this sad, yet interesting, state mandatory minimum sentencing tale:

A Clackamas County judge stunned a courtroom packed with supporters of Dale and Shannon Hickman Monday when he sentenced the couple, members of an Oregon City faith-healing church, to prison for six years and three months.

The Hickmans received the mandatory minimum prison term under Measure 11 sentencing guidelines, even though defense attorneys argued that their clients qualified for little or no prison time. Once released, they will be on post-prison supervision for three years.

"This is a sentence you have justly earned," said Presiding Judge Robert D. Herndon. He called incarceration "a modest penalty for causing the death of a vulnerable person. ... This was so preventable."

After Herndon left the courtroom, about 100 church members remained, sullen and many sobbing, as deputies handcuffed the Hickmans and led them away.

The Hickmans were convicted of second-degree manslaughter in September for failing to seek medical care for their son David, who was born two months prematurely and lived less than nine hours. An autopsy found he had staph pneumonia and underdeveloped lungs. Pediatric experts testified that the baby almost certainly would have survived if he had been taken to a hospital. The Hickmans sought no medical intervention even as the baby turned gray and struggled to breathe.

Under Oregon law in effect when the baby died in 2009, defense attorneys maintained that the Hickmans were eligible for a lesser sentence available to those who rely on spiritual treatment. The Legislature eliminated the exemption this year -- motivated by the long history of child deaths among the Followers – and the Hickmans will be the last Oregonians to attempt to benefit from the old law. Under the law in effect at the time of the crime, Herndon needed "substantial and compelling reasons" to depart from the sentencing guidelines, and he did not see any.

Had the Hickmans conceded at trial that David was sick -- but not gravely ill -- and that they relied on faith-healing rituals to cure him, they might have fared differently at sentencing. But instead of invoking a religious defense, the Hickmans said they saw no reason to call 9-1-1 or seek medical assistance because there was nothing wrong with their son, even as he grew weaker and died. "As the evidence unfolded and the witnesses testified, it became evident to me and certainly to the jury that this death just simply did not need to occur," said Herndon, noting that the jury reached a unanimous verdict in a "stunningly" short time.

Defense attorneys Mark Cogan and John Neidig urged Herndon to give the couple probation, assuring Herndon that the parents would take their children to the doctor and get training to help them determine when a child needs a doctor's care.

Shannon Hickman tearfully appealed for Herndon to not separate her from her two children, a 7-year-old daughter and an infant son. Dale Hickman, emotional but composed, asked the judge to "find in your heart mercy for my wife and above all else, our children."...

Prosecutor Mike Regan said the sentence sends a message to the church. The Followers are not fundamentally different from a black-robed pagan group that sacrifices a sick child in the dead of night, Regan told the court. In the Followers, "we have a religious group sacrificing children's lives, year after year, decade after decade," he said. "We have to do something."

November 2, 2011 at 08:19 AM | Permalink

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Comments

If anything, the sentence is too light.

Posted by: federalist | Nov 2, 2011 10:13:32 AM

And I would say that from the stated facts I would have been unwilling to convict. The only time I can see failure to seek medical care being a crime is if the underlying cause is some injury by the defendant. As far as I know that is not generally the case with premature births, in many cases they just happen. Only generally expected requirements should lead to liability, people expect that they will have to feed a child, provide shelter and so on with other basic necessities. They do not expect that they will need to rush their new child to a hospital for immediate medical intervention.

Posted by: Soronel Haetir | Nov 2, 2011 10:44:06 AM

Soronel,

If the baby had been born full-term with no issues, I would agree with you. A parent may not expect a hospital to be a need to go along with shelter and food.

However, any competent person would expect hospital care to be among the "basic necessities" of a bay born premature by two months. This is further illustrated by the jury having such an easy time with the decision.

Finally, why you would only consider a direct injury by the defendant to be applicable baffles me. I am by no means an attorney, but negligence is a long recognized concept.

Posted by: TarlsQtr | Nov 2, 2011 11:26:53 AM

My point is that I don't believe in the duty to begin with. There simply shouldn't be a standard that heroic measures are the basic duty that someone has to provide in order to avoid liability. I would not limit that to births either, parents don't want to have their kid undergo chemotherapy, I wouldn't convict then either. I just don't believe there is a legal right to remain alive as long as possible.

My understanding is that most countries wouldn't even have counted this as a live birth, that they have weight and possibly other development milestones to reach first before any birth is counted as alive. The US treating anything with a pulse as being a live birth is part of why our birth mortality numbers are so much higher than any other developed country.

Posted by: Soronel Haetir | Nov 2, 2011 2:14:25 PM

If the baby's parents didn't have health insurance or other means to pay for the baby's medical care,some members of the Tea Party crowd would presumably cheer when doctors just let the baby die.

Posted by: flv | Nov 2, 2011 2:38:56 PM

Soronel,

If this was not such a serious topic, I would laugh. You are essentially stating that the quality of being "alive" (breathing, cognitive function, heart beating, etc.) should have no bearing on whether we count one as alive. Why? Because other countries like to fudge their numbers? It is the seed of the same logic used by that despicable nexus of Margaret Sanger/GBShaw/Alfred Ploetz.

This baby could have likely been saved by drugs or an oxygen tube up his nose (like when grandma gets pneumonia). Even a ventilator for a short time is far from "heroic measures." With some basic medical care, this child would have lived a normal life.

Your position is even more extreme than the radical pro-death/abortion agenda, which believes that a baby is not a "baby" until it passes through the vaginal canal. Exactly WHAT "milestones" are you referring to that qualifies one as being "alive?"

Posted by: TarlsQtr | Nov 2, 2011 3:12:15 PM

Another point.

You appear to be vascillating between two separate points that just do not add up.

A) You stated that the parents are not responsible because the ailment was not caused by the parents (they are only responsible for the "basic necessities" of shelter and food).

B) You stated the parents also are not responsible because a baby is not alive until it meets weight and development milestones.

Why the call for "food and shelter?" Until a baby reaches your "weight and development milestones", isn't it just as appropriate to throw a breathing "notababy" into a snowbank with no food until it reaches these "milestones" after a day/week/month/year(s)?

If not, why not?

Posted by: TarlsQtr | Nov 2, 2011 3:25:21 PM

I am sure that our fine President would agree that these people should have been convicted. But a doctor, when confronted with an alive baby after a failed abortion, would not. I guess you have to have gone to HLS to figure that one out.

Posted by: federalist | Nov 2, 2011 7:31:47 PM

If we don't recognize any more that parents have a duty to preserve the life of their newborn, then it's not merely law that's in jeopardy. It's civilized life itself. Indeed, I have to think that the parental obligation to do everything in their power to preserve new life pre-dated civilization.

Posted by: Bill Otis | Nov 2, 2011 10:59:22 PM

For the other perspective:
I certainly do not think their religion is wise, and I am not saying anyone should go out and join their church, but I do not believe it can rise to criminal conduct.

This ruling, in effect, makes failure to use western medicine a crime. One hundred, nay just sixty, years ago, every mother and father in the world and as far back as all of human history, would have been guilty. Even what passed as medicine in most of human history was beyond the financial grasp of most of the world. But now, it is a crime to fail to do so. Heaven forbid, our esteemed status of wealth that we have obtained be taken from us, lest we all return to a place where all of are guilty of this crime for another epoch of human history.

The irony is that I suspect that many of the same people that go out of their way to protect the termination of MILLIONS of babies each year for irresponsible behavior (I mean, in this day and age, how hard is it to get birth control, really), can justify putting a family to jail for years simply because that baby was a few hours older. Why do you suddenly care about this baby? How do you, in your minds, dilineate such a huge difference with that first breath? Suddenly, one other organ turns on, and it is sacrosanct? A moment earlier, and cutting it into quarters, is not inhumane?

These people did not, as Mr. Otis claims, fail to preserve the life of their newborn. Rather, they, according to a constitutional right to freedom of religion (their is no consitutional mandate to use western medicine), did everything in their power. They did not hasten death along, but were powerless to change the fact that their child was born premature. I only see that they did not rely on a western medicine, not that they did not try to give their child every other aid and remedy that they could.

As far as stating that this is the same as sacrificing a baby: I am sorry - a decision not to rely on western medicine for a religious belief - is ABSOLUTELY different than intentionally killing a child for one. All of us know that omission is different than comission.

What I suspect is the growing hostility toward religion in this country is what ended up putting these people away. Why don't we just solve this problem now, once and for all, by incarcerating everyone that follows their religion? Maybe torture them until they renounce their religios faith? No stomach for that, have you? Oh wait, that is exactly what has happened here. If these people follow their religious beliefs, they will be incarcerated. By judicial fiat, their religion and way of life has been eliminated. They will be persecuted because they chose to rely on Providence instead of calling 9-1-1. This, for other reasons, happens DAILY around the world, but here in the good ol' US of A, where we have a constitution that protects these people for following their religion, it has been made a crime.

If abortion was illegal anytime after a child could successfully survive outside the womb (and of course, the actual, not made-up, threat of harm to the woman), which would be at about 22 weeks (because by your logic, this baby is viable and failure to provide medical care that would save it would be a crime), then I would be willing to criminalize these poor sods. Until such time...

I respectfully dissent.

Posted by: John | Nov 3, 2011 8:56:41 AM

John --

And if your religion dictates that parents withhold food for 30 days from their newborn, so that the child learns from the outset to rely on God's benificence rather than man's, is that OK too?

Yes or no.

Of course no person with an ounce of conscience, not to mention common sense, could answer yes, but that is exactly the answer to which your reasoning commits you.

Freedom of religion is a good thing indeed -- right up to the point that it leads directly to the death of a helpless and innocent person. That's what happened here, as you full well know. You can swoon all you like for voodoo, which is what you're doing while carefully avoiding that word, but no Constitutional right is absolute. Where a defenseless person is going to die because of your free exercise, your free exercise is out the window.

I was proud to prosecute a great number of cases when I was an AUSA, and I certainly would have been proud to prosecute this one. As I mentioned, when a society loses the ability to enforce the absolutely fundamental requirements of parenthood, it has lost the rudiments of civilization itself.

Posted by: Bill Otis | Nov 3, 2011 9:51:35 AM

Mr. Otis,

Withholding food, if there is some to be had, is quite different than requiring parents to bring their child to a hospital, at least in my mind. Food is a necessary element of life: western medicine is not. It may extend life but it is not necessary for life. The sad thing is that people die, but mandating use of a particular level of healthcare is an untenable position.

Though my reasoning could be extended the way you suggest, by your reasoning, there is nothing, regardless of expense or inconvenience, that would not be required of a parent. By your logic, every woman in Africa with a sick child who fails to get on a plane and take her newborn to New York Presbyterian is guilty of this crime. As are mothers weathering a drought when there is no food available to them. Otherwise, where do we draw these limits? That whole room of people stayed and mourned because on top of losing one of their children, their way of life has been wiped out.

Again, while I agree that this is a horrible case under any circumstance, I stick to my guns, if not for any other reason, than to demand that this logic apply equally then to unborn children who could, by routine medical procedures, be born premature and saved by the same system that you require the Hickman's to use. When that day comes, then I will happily convict the Hickman's. My reasoning may be susceptible to attack for this group that causes but a handful of babies to die each year. But the same reasoning applies to the MILLIONS of babies that are killed on the opposite side of the spectrum that we happily turn a blind eye to. I will be blind to ten children until the other million get some attention. Again...

I respectfully dissent.

Posted by: John | Nov 3, 2011 10:49:30 AM

John,

I would point out that American law is not based upon (and should not be) what medical care people are capable of in Africa or in Henry VIII's England. It is, and should be, based upon our current capabilities.

For instance, would you say that parents should not be required to seek penicillin for a case of strep throat, simple care for a compound leg fracture, or appendicitis, all of which can kill a child?

If not, where does it lead us? We become a society where parents can legally off their children or at least cause unbelievable physical harm. Your legal position also impacts the treatment of the mentally ill, many senior citizens, and prisoners, all of whom are considered wards in someone else's care. Should a prison system be able to deny someone basic care because they could not receive it in Africa or 16th century England?

The abortion issue is somewhat of a red herring. First, those that would consider it imperative to save this child will be mostly pro-life (it is not your average pro-life Catholic that is talking about "development milestones" before one qualifies as "alive"). Second, that millions of babies are being slaughtered before they are born is not justification to slaughter babies after they are born. The inconsistency, where there is one, is on the pro-death side, not the pro-life side.

Posted by: TarlsQtr | Nov 3, 2011 11:51:57 AM

John,

Are we obligated to meet Western/American current standards for law, education, etc., or can we throw them aside for African or ancient forms?

Should a religious person be able to stone a homosexual? If not, then why is it only in the field of medicine that we cannot hold someone to current "Western standards?"

Posted by: TarlsQtr | Nov 3, 2011 12:03:14 PM

They have not slaughtered their child. That is a distinction that is being overlooked.

They have not done this for their own convenience or to save money (though they may have been liable for an incredibly large medical bill for the care you require of them that may very well have swallowed the entire family's well being, particularly if they did not have insurance, which they likely did not - why would they?). They have done it according to a deeply held belief which they hold dear. While tragic, and what death is not, it would not open the floodgates to abuse, as you suggest. I think you just think that your beliefs are more right than theirs. And that is what concerns me.

Posted by: John | Nov 3, 2011 12:15:26 PM

Tarls and Bill and federalist,


Just curious as to who you think should pay for the baby's healthcare, assuming the parents have no money and no health insurance.

Posted by: flv | Nov 3, 2011 12:23:58 PM

John stated: "They have not slaughtered their child. That is a distinction that is being overlooked."

A distinction, sure, but with no difference in the end. I have no more respect for a parent that sits there and does nothing after his child fell off a platform and cracked his skull open than I do for the parent that pushed him. In this case, inaction is an action.

John stated: "They have not done this for their own convenience or to save money (though they may have been liable for an incredibly large medical bill for the care you require of them that may very well have swallowed the entire family's well being, particularly if they did not have insurance, which they likely did not - why would they?)."

Really? Are you sure? I have only their stated motive, no crystal ball to look into their hearts.

The cost argument is another red herring. A) The Hickmans did not give cost as a defense (and would have been laughed out of the court if they tried). B) No hospital would have turned the baby away. C) No sane person would state that bankruptcy is more likely to "swallow a family's well-being" than a dead child (hey, can they throw the body in the gutter because funerals are expensive too?)

John stated: "I think you just think that your beliefs are more right than theirs. And that is what concerns me."

Yikes. Seriously? By your standard, I cannot judge those who believe in human sacrifice as less "right" than my own beliefs. And that is what concern me. People hold "beliefs" that completely fall short of being civilized. Some are religious, others not. However, we still do not allow them to harm others in the name of their beliefs.

Posted by: TarlsQtr | Nov 3, 2011 1:16:37 PM

flv stated: "Just curious as to who you think should pay for the baby's healthcare, assuming the parents have no money and no health insurance."

If they "have no money and no health insurance", then they were already eligible for numerous government programs that would have paid for it. If not, pay $5 per week or even filing for bankruptcy is an exponentially better option than allowing a child to die.

To go even deeper, there were not millions of people dropping dead from no healthcare in the 1950's, before Medicaid and Medicare. They went to charitable organizations and hospitals built on the premise of helping the indigent (Catholic, Protestant, Jewish hospitals). If I were king, we would go back to such a system.

Posted by: TarlsQtr | Nov 3, 2011 1:22:58 PM

Tarls,

Thanks for answering. (Some commentators, Bill being a prime example, are quick to criticize others for not answering questions, but do the same thing themselves).

I'm not saying for a minute that I personally think lack of funds would or should be a defense to a criminal charge of letting a baby die. I was just remembering the reaction of some Tea Party types to a suggestion that, if someone can't pay for healthcare, doctors should just let them die. (They cheered the suggestion.) Which then made me wonder: would a doctor who actually did that then be prosecuted for murder? And would it make a difference if the person dying before the doctor's very eyes was an adult versus a child?

And what I was asking you and others wasn't who WOULD pay for the baby's care if the parents couldn't, and had no health insurance - of course the government programs that are already in place would - I was asking who you think SHOULD pay for it. Your answer, I take it, is that religious groups should. Two follow-up questions: What if such groups run out of money to pay for all the folks who can't afford healthcare or health insurance? And how many people do you think did die in the1950's due to lack of healthcare (accepting your premise that it probably wasn't millions)?

Posted by: flv | Nov 3, 2011 2:51:23 PM

flv --

Nice try to divert attention from this case, in which there is no allegation whatever that the parents were financially unable to provide the care that would have saved this kid.

If you don't have what it takes to care for your own child, don't have a child. Once you do, you undertake to provide for him and safeguard him like nothing you have ever done in your life. Parents who do not understand this are not ready for the solemn (and joyous) role they have assumed.

I repeat: I would have been proud to prosecute these people. Would I be wrong, in your view?

Posted by: Bill Otis | Nov 3, 2011 2:53:11 PM

Bill: No, of course not. They deserved to be prosecuted, and were I the judge, I would have thrown the book at them at sentencing.

And now that I have your attention, I repeat: who do you think should pay for a dying but saveable baby's healthcare when the parents can't, and don't have health insurance?

I'm also genuinely curious whether you think a doctor who turned away a dying but saveable person b/c of lack of funds or health insurance (which person then promptly dies), should be prosecuted for some form of homicide? And would it make a difference if the dying patient was an adult versus a child?

Posted by: flv | Nov 3, 2011 3:08:52 PM

FLV stated: "I was just remembering the reaction of some Tea Party types to a suggestion that, if someone can't pay for healthcare, doctors should just let them die. (They cheered the suggestion.)"

I think you are overstating things considerably. If I remember the debate correctly, the question had to do with an adult (which makes a difference) and there may have been 1 or 2 that cheered. Even the ideologically pure libertarian Dr. Paul did not support allowing the person to die.

You stated: "Which then made me wonder: would a doctor who actually did that then be prosecuted for murder? And would it make a difference if the person dying before the doctor's very eyes was an adult versus a child?"

Doctors in public hospitals are not free to pick and choose who they save (except for babies). When someone comes into the ER, they are required to provide service without any consideration of the patient's ability to pay.

You stated: "And what I was asking you and others wasn't who WOULD pay for the baby's care if the parents couldn't, and had no health insurance - of course the government programs that are already in place would - I was asking who you think SHOULD pay for it. Your answer, I take it, is that religious groups should.

Well, actually the parents "should." If they cannot, religious hospitals and charitable organizations are willing to help.

You state: "Two follow-up questions: What if such groups run out of money to pay for all the folks who can't afford healthcare or health insurance? And how many people do you think did die in the 1950's due to lack of healthcare (accepting your premise that it probably wasn't millions)?"

This is prior to my time, but I am quite certain that the number would be small. Even Dr. Paul said he does not remember a single case where a patient had ever died because he was refused care (BTW, I am not a Paul supporter).

As far as the religious hospitals running out of money, I do not see it. We are talking about life threatening care, not preventative or the flu. I would be satisfied with government reimbursing the hospital and taking the money from the patient (via holding tax refunds, garnishee wages, etc) until it is paid back. Some will never be fully repaid, but that is part of living in a compassionate society. However, there should be no free ride. Again, I am talking about life threatening cases only.

Posted by: TarlsQtr | Nov 3, 2011 4:34:15 PM

flv --

"...who do you think should pay for a dying but saveable baby's healthcare when the parents can't, and don't have health insurance?"

I answered, but you didn't like the answer. I'll repeat it anyway. If you can't take care of your kid, then don't have a kid. Is there something wrong in thinking that parents should be responsible for safeguarding their offspring, rather than beggaring everyone else to do it?

Is there?

What you're up to is pretty obvious, and it doesn't really have anything to do with criminal law. You want me to endorse the idea that responsibility for children does not rest with the parents, but instead is diffused to strangers. I endorse no such idea. Do you not see that diffusing responsibility will lead to more IRresponsibility, which in turn will lead to more neglected children, not fewer?

To answer your question more specifically: The parents had best get their act together and raise the money as best they can. No excuses and no whining. You borrow it, you get a job any honest way you can, you seek help from relatives or from charities (as TarlsQtr has suggested). The one thing you do NOT do is the thing you want me to support, to wit, demanding that strangers discharge, through the force of government, obligations they did nothing to create.

No thanks. I still prefer a free country.

P.S. Nor am I fooled by the (for now) limited question about health care. Just as soon as I fall for that one, it will be, well what about decent clothes? What about living in a safer (i.e., more expensive) neighborhood? What about providing their college tuition?

I know where this leads. So do you, which is precisely why you're asking.

P.P.S. I think that doctors have a moral obligation to provide emergency care to a dying person whether they get paid or not (and to my knowledge, they do in fact provide it). I think this based on exactly the same principle that has led me for years to say that lawyers in the private bar have the obligation to take indigent death penalty cases without charge. And while I think these are very serious obligations, no, I would not enforce them through criminal sanctions. Cultural values are both more important and less dangerous than government power.

Posted by: Bill Otis | Nov 3, 2011 4:53:33 PM

I have no interest in imposing my own subjective basis on other people under the color of law. People often say American is "overlawyered" but that's because we are overlawed. We as a society get off emotionally and psychologically from telling other people what to do. I agree 100% with "john" that "I think you just think that your beliefs are more right than theirs."

"However, we still do not allow them to harm others in the name of their beliefs."

What a bunch of tosh. Of course we hurt other people for our beliefs. How many millions of people have been shot dead in order to "make the world safe for democracy" over the last century. As I said before, I cannot help but wonder if the root of the problem is necrophiliac pedophilia. We just have an obsession with dead little babies in this country. One would think that with seven billion souls on the planet today we would have our hands full with the living. But maybe because pedophilia among the living is outlawed they have to molest the dead ones. I honestly don't know because I don't understand the urge at all.

Posted by: Daniel | Nov 3, 2011 4:55:14 PM

Daniel,

You keep accusing everyone with some twisted theory of being obsessed with some "necrophiliac pedophilia", yet you are the only one who brings it up over and over again.

Me thinks thou dost PROJECT too much.

People care about babies because they are life in its most helpless and innocent form. I can speak for myself when wronged. They cannot.

On that note, I will leave you with your obsession. I suspect that you "understand the urge" more than you let on. Either that or you are just a pathetic iconoclast looking to get reactions.

You will get no more from me.

Posted by: TarlsQtr | Nov 3, 2011 7:44:07 PM

I won't bring up dead babies if you don't.

Deal?

I thought not.

Posted by: Daniel | Nov 3, 2011 11:49:46 PM

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