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July 29, 2007

Sad setting for noticing sentencing differences

With thanks to the many readers who sent me the link, this AP story, headlined "Sentences vary when kids die in hot cars," provides yet another example of the inevitability of different sentencing outcomes in the most challenging of criminal cases.  Here are excerpts:

Since the mid-1990s, the number of children who died of heat exhaustion while trapped inside vehicles has risen dramatically, totaling around 340 in the past 10 years.  Ironically, one reason was a change parent-drivers made to protect their kids after juvenile air-bag deaths peaked in 1995 — they put them in the back seat, where they are more easily forgotten.

An Associated Press analysis of more than 310 fatal incidents in the past 10 years found that prosecutions and penalties vary widely, depending in many cases on where the death occurred and who left the child to die — parent or caregiver, mother or father:

  • Mothers are treated much more harshly than fathers.  While mothers and fathers are charged and convicted at about the same rates, moms are 26 percent more likely to do time.  And their median sentence is two years longer than the terms received by dads.
  • Day care workers and other paid baby sitters are more likely than parents to be charged and convicted.  But they are jailed less frequently than parents, and for less than half the time.
  • Charges are filed in half of all cases — even when a child was left unintentionally.

July 29, 2007 at 01:11 AM | Permalink


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The AP article you reference was written around the story of Kevin Kelly, who was trying to look after 12 children alone while dealing with other problems as well. I remember our neighbors some years ago, who had seven young children, got home from church and discovered the youngest was missing. Fortunately, people at church had noticed her and the parents were able to go right back and pick her up. These people were as devoted as they could be to their children, and every one of them has grown up to be delightful. However, they could easily have wound up in the same kind of trouble.

My daughter was an only child (and normally babbled enough to make her quite impossible to ignore). However, I can think of several occasions where scary things could have happened as a result of my being distracted by other events. While wilfull neglect (such as leaving the kids in the car to get drugs or spend hours in the beauty parlor) should certainly not be condoned, I have never understood why parents like this or others who wind up charged with crimes for things which are obviously unintended accidents should be saddled with prison time and felony records which make it difficult to support their families. What about the children who have lost a sibling and now must see a parent go to prison? I should think the grief for the individual involved would be both a terrible punishment and the ultimate deterrent to make sure it doesn't happen again.

Why are we so determined to punish people even when it serves no discernable purpose? Making this kind of thing into a crime does not serve justice. I think most parents are sufficiently scared just by the idea of this kind of thing happening. The fact that you could go to prison as a result doesn't add anything to that. If I am sufficiently distracted or frantic to forget my child, the possibility of it turning into a crime isn't going to enter into the equation. It seems that the argument is always, if we don't punish this severely, people won't respect the legal system. Well, people I talk to DON'T have any respect for our legal system, and this type of case is one of the reasons why!

Posted by: disillusioned layman | Jul 29, 2007 1:19:51 PM

I think a lot of prosecutors believe that if a crime is chargeable and provable, it's their role to bring a case. Their view is that the legislature could make an exception for "obviously unintended accidents." But in the absence of such exceptions, their job is to prosecute where they think they can get convictions.

I do agree that prosecution in such cases serves no useful purpose. But some people are uncomfortable with prosecutorial discretion. That includes many prosecutors, who resolve the dilemma by prosecuting whatever they can find.

Posted by: Marc Shepherd | Jul 30, 2007 3:40:43 PM

The problem I have with these prosecutions is the criminalization of accidents. Accidents happen, and sometimes children die as a result. Each of us, I think, whether parents or not, have been negligent where serious consequences could have resulted. Ever just miss a stop sign--I have. Ever lane change and miss another car in blind spot? Well, parenting has the same type of repetitive decisionmaking as driving a car, and the vigilance can be exhausting, and unfortunately, all it takes is one slip-up, as these cases show. Locking up good people (and good parents) for an accident like this is just wrong. There's no other way to put it.

Posted by: federalist | Jul 30, 2007 4:22:34 PM

Federalist, I couldn't agree more. It is getting to the point where virtually anything can be criminalized if some prosecutor wants to pursue it. I consider myself a law-abiding citizen who would never intentionally break a law. Now I realize that won't necessarily keep me out of the criminal justice system, because I can wind up there by accident. How exactly does that state of affairs promote respect for the law? From the viewpoint of someone standing outside of it, the legal system appears to be some sort of surreal monster ensnaring as many people as possible in its tentacles, all in the name of making me safer. I don't feel safe. The situation makes me wonder how many of these "tough on crime" legislators are getting contricutions from CCA and GEO Group.

Marc, I appreciate your comments but find them disturbing. I have often wondered what goes on in prosecutors' heads. But I disagree. Prosecutors exercise discretion all the time. Professor Berman notes that about half of these cases are prosecuted. That means that prosecutors used their discretion to choose to pursue some cases and not others. You state that prosecutors believe they should bring charges "if a crime is chargeable and provable." But was it a crime? In these and many other cases, the prosecutor is the one who decides whether to elevate an event to the status of crime. The he pursues it because he thinks he can get a conviction. Or perhaps the fact that he believes he can get a conviction leads him to label the event a crime? After all, prosecutors are elected based on their ability to win convictions.

So where, exactly, in this process do notions of truth and justice enter in? You state that many prosecutors simply decide to prosecute whatever they can find. What a convenient way to cover your posterior and avoid moral decisions. It doesn't work, though. Choosing not to exercise discretion is of itself an exercise of discretion. An attorney friend tells me with a chuckle that you can indict a bologna sandwich. Apparently you can convict a bologna sandwich as well, but does that mean you should? Is it right? Is it just? What possible good does it do? How does it make society safer? Is it worth the cost in both personal and financial terms? But apparently none of those idealistic notions enter into the prosecutor's calculus. He's just doing his job, ma'am.

You agree that prosecution in cases such as those of discussed in the article serves no useful purpose. So large numbers of my tax dollars are being spent for no useful purpose? And if the parent is sentenced to prison then, say, $25,000 per year of our tax money will be spent to incarcerate him or her? Again, according to the powers that be, putting all these people in prison is supposed to be making us safer. What a relief to be protected from grieving parents! Wouldn't our tax money be better spent on helping these families stay together and move on, rather than causing them even more trauma--especially when research demonstrates that children of prisoners are much more likely to wind up in prison themselves? (But, of course, we all want to keep CCA's stock price soaring--how better than to provide future grist for the mill?)

I do not think people are so much uncofortable with the idea of prosecutorial discretion as with how it is used. Every prosecutor exercises discretion. I suspect most people would like them to use it--and our taxes--to prosecute those people who truly represent a threat to our safety, and to help people who have made mistakes not make them again. I also think they would like to see it used in an honest, if sometimes flawed, attempt to obtain justice, rather than a calculated strategy to advance prosecutorial careers.

Posted by: disillusioned layman | Jul 31, 2007 9:35:39 AM

Disillusioned Layman, I think you didn't realize I was using sarcasm. I have no sympathy for prosecutors who think they need to jail everyone they can get their hands on. But it happens often enough to suggest that many prosecutors are lacking the common sense gene. I don't know how these guys live with themselves. But with half these cases resulting in criminal charges, clearly there are many prosecutors who can't see the error in what they are doing.

And of course, this type of case is but one example. Remember, Glenarlow Wilson is in prison for 10 years for accepting a consensual blow job from a school classmate.

Posted by: Marc Shepherd | Jul 31, 2007 10:34:48 AM

Marc, the decision to prosecute Genarlow, I don't think, was all that wrong. Whether, given the jury's verdict, he deserves to spend 10 years in the pokey, is another issue.

Posted by: federalist | Jul 31, 2007 11:32:22 AM

Marc, I apologize. I must admit I did not think you were being sarcastic. And given that I am an ex-Long Islander and normally consider myself a connoisseur of sarcasm, that is perhaps a comment on how seriously I take this state of affairs

Several years ago, I had the opportunity to watch a good friend convicted and sentenced to prison for something he didn't do. The prosecutor explained the fact that my friend's fingerprints were not in the vehicle he was supposed to have driven by having a forensics "expert" testify that you couldn't get fingerprints out of a car (his illustrious attorney did not challenge that). He kept repeating, "We know he was in the car," although he did not say how. There wasn't any DNA in this case, so we couldn't prove he didn't do it. (Yeah, I know, innocent until proven guilty. If you believe that, I'll sell you a nice swamp in Florida.)

In his closing argument, the prosecutor stated, "You don't need evidence to convict someone. You don't need any evidence at all." (The defense attorney didn't challenge that either.) My attorney friend assures me that is true, again with a wry smile. We later found out that this prosecutor was a friend of the accuser's family, and the the accuser had made similar unsubstantiated allegations against other men and had not been believed. When I finally saved up the money to buy a transcript of the trial, the prosecuting attorney's closing argument as well as a number of other things (like the judge's irrational sentencing rant) had been deleted or reworded. The only good news is my friend wasn't sentenced to ten years. And yes, I have paid close attention to developments in the absurd Genarlow Wilson case and the whole nightmare of making normal teenage stupidity into crimes. People who never intended to commit a crime and used poor judgment (a hallmark of teenagers) become lifelong registered sex offenders. The we publish their whereabouts on the internet and talk about making the use hot pink license plates, just so any nutcases who are so inclined can kill them (or their families).

One of our friends who attended the trial was a
former police officer of 14 years experience. She was horrified. She went home and told her five sons never to be alone with their girlfriends, because if one of them accused them of something, there was no defense. Subsequently, while visiting my friend in prison, I struck up a conversation with a correctional officer who looked at me sadly and said, "There are a lot of innocent people in here." And no, she wasn't being sarcastic.

As a reasonably well-informed citizen standing outside the legal system looking in through its funhouse mirror entrance, my point is twofold:

1. People inside the legal system need to realize that some of us out here are pretty horrified at how they operate. And scared--of them!

2. We need a dialogue about this whole business that involves and educates more people. Lawyers talk to each other. I think they frequently consider the rest of us irrelevant (except as income-generators). Families and friends of prisoners talk to each other. They are often too embarassed or afraid to talk to anyone else. After my friend was convicted, a psychology professor friend of mine expressed amazement when I told her that of the 80 men who arrived at the correctional reception center the day my friend did, he was the ONLY one who had had a trial. She honestly believed that everyone charged with a crime had a trial. The lack of knowledge regarding how our legal system operates is breathtaking. And like me, people don't find out until it's too late and they're caught up in it. I don't know what the mechanics of starting such a public dialogue would be, but I'd certainly like to be involved.

Posted by: disillusioned layman | Jul 31, 2007 11:36:59 AM

Marc, the decision to prosecute Genarlow, I don't think, was all that wrong. Whether, given the jury's verdict, he deserves to spend 10 years in the pokey, is another issue.

Federalist, I think we can hold the prosecutor accountable for this, as he has continued to publicly defend the 10-year sentence, and to use the power of his office to prevent it from being undone.

I would argue that the injustice to Wilson was more severe than the injustice to the parents and caregivers discussed in Doug's original post. In the latter case, there's no doubt that someone was harmed (the baby who died); the question is whether it was the result of criminal activity.

But in Wilson's case you can't even identify a victim. Prosecutors claimed the girl was the "victim," but we all know it was a legal fiction that only a prosecutor could defend with a straight face.

Posted by: Marc Shepherd | Jul 31, 2007 12:34:09 PM

Marc, the prosecutor offered a plea deal, and it's my understanding that one is still on the table. The prosecution was justified initially.

Posted by: federalist | Jul 31, 2007 12:41:20 PM

Federalist, let us compare the two situations.

In both cases, the purported criminal had no intent to commit a crime, nor was that person even aware that he was engaging activity that could be construed as illegal.

In one case, the result is a baby who dies an agonizing death—albeit unintended. In the other case, no one is harmed. Yet, you argue that the latter prosecution is justified?

Posted by: Marc Shepherd | Jul 31, 2007 4:12:24 PM

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