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August 24, 2009

"Commission asks: Is a crime worse if a child sees it?"

The title of this post is the headline of this interesting local article from Virginia.  Here are the details:

If Matthew R. Nash is convicted of this summer's Virginia Beach carjacking, he could get additional prison time for the mere fact that a toddler in the back seat became a witness to the event.  Some judges have begun tacking on additional months or years of prison time when a crime occurs in the presence of a child, even though there's nothing in sentencing guidelines that requires it.

The state is now trying to figure out how often crimes occur in front of children in anticipation of possible legislation to require additional incarceration if children witness crimes.  For the study, the Virginia Criminal Sentencing Commission asked commonwealth's attorneys to supply data on crimes committed in the presence of children, but it has been slow going....

The commission embarked on the study, believed to be one of the first in the country, after getting increased reports of judges imposing greater sentences in crimes that occur in front of children. The commission wants to determine exactly how often it happens. "I think it's part of a whole package that's presented when sentencing a defendant," Suffolk Commonwealth's Attorney Phil Ferguson said. "If you're committing a crime in front of children, then you're teaching children that it's OK to commit criminal acts."

Defense attorneys typically object to such sentencing enhancements because it's not an aggravating factor under the state's sentencing guidelines.  Norfolk attorney James Broccoletti said he's seeing it more often, particularly in drug cases.  He said he had a murder case several years ago in which a jury and judge imposed additional time for the defendant, Ericka Parks, because she shot and killed another woman in front of the victim's baby.  He called the 25-year prison term "extremely harsh." "It does have an impact," he said.

So, dear readers, here is the question to start the work week:  should sentencing guideline systems formally include a sentencing enhancement for committing a crime in front of a juvenile?

August 24, 2009 at 09:54 AM | Permalink


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Absolutely. First of all, people are particularly vulnerable when they have their children with them. Flight is simply not an option. Second, the a violent act committed against a parent can have serious emotional impact to the child. Third, the child may be forced to defend the parent, even if the odds are hopeless.

This absolutely should be a sentencing factor.

Posted by: federalist | Aug 24, 2009 10:25:46 AM

Perhaps crimes should get a rating system as movies do.

I assume the aggravation is the post-traumatic stress disorder induced in the child. Infants will not remember anything. Otherwise, the effect depends on the sensitivity of the person. The wide variability dependent on genetics and prior experience make this aggravating factor too complex, chaotic, and unforesseable by the criminal. If a child has anxiety, it may suffer PTSD. If a child has a tendency toward criminality, it may learn criminal methods and imitate them. The most usual outcome will be to just forget, and have no after effect.

It is also unfair. It may result in widely divergent sentencing for crimes under the same circumstances. Same crime, same time.

The criminal may be motivated to kill the child as well as the adult victim, to prevent sentencing phase child testimony on aggravation. Death penalty abolitionists have effectively totally, and absolutely immunized all crimes after the first murder.

Posted by: Supremacy Claus | Aug 24, 2009 10:29:28 AM

Ooh, a brewing catfight between federalist and Supremacy Clause on this issue. How exciting!

Come on you, two, let's get the usual invectives going as you duke out your competing positions on this interesting issue.

Posted by: Doug B. | Aug 24, 2009 11:40:20 AM

I think the answer to the question is yes, but I'm not sure why.

Intuitively, people are more horrified by brutal crimes committed in front of small children than those committed in isolation, and I think that's right. But I don't think the explanation is "you're teaching children that it's OK to commit criminal acts." Not everything done in front of a child is presented to the child as "ok."

Federalist is on the right track.

I think I disagree with Supremacy Claus on his/her/its first point. The fact that the PTSD mechanism is complex does not mean that criminals are unable to understand the basic insight that committing a violent crime in front of a child can scar the child emotionally. It takes an extra level of depravity to do that sort of thing, and it makes sense to account for it at sentencing. It's no more nebulous than most of the other things considered at sentencing.

I don't know whether it's true that DP abolitionists have effectively immunized every murder after the first one or that criminals see it that way in practice. Even if it is, though, the issue raised in this post is broader than just murders.

Posted by: anonymous | Aug 24, 2009 12:55:36 PM

If Federalist believes a crime is more heinous because done in front of a child, especially a white one, have the legislature pass a statute adding it as an intentional element, with enhanced sentencing. I thought common law crime ended in 1812. As I object to the devaluing of the black crime victim in the death penalty, I object to the overvaluing of the child spectator. The prosecutor has the option of charging assault of the child (inducing fear), and proving it as an additional charge with a separate verdict by the jury. You can make stuff up on a case basis, but that is prohibited by the constitution and by legality. That is the law as it stands today, or else correct me. Would the above lawyer in the case reduce the sentence by appeals to the fact that the defendant has many children who need him or would miss him, and be traumatized by his absence. In old Italian movies, they did that in extremely dramatic trial scenes, and it working in Italy of the 1940's. Those were farces.

I am the one that believes in status crime. But that is not the law as it stands today. If I believe in something different, then I should go to the legislature and change the law. I cannot apply my fantasy to a real case until that happens. I also believe that mandatory guidelines promoted equal treatment, as well as reduced crime by increased incapacitation. That is no longer the law either. I hate to get legalistic, but must.

Since Prof. Berman is in the house on this topic, question for him. If legality was established in 1812, how come you crim law profs spend so much time teaching common law crime? You just enjoy it, miss the 13th Century, or what?

Posted by: Supremacy Claus | Aug 24, 2009 1:32:56 PM

federalist, your response assumes that the child witnessing the crime is the victim's child (or has some other relationship to the victim). Would you answer be the same if it was not?

At a minimum, I think an enhancement would only be appropriate (if at all) only if the witness-child had some relationship to the victim. If any guideline system imposed such an enhancement, that should be made clear.

Posted by: DEJ | Aug 24, 2009 1:46:38 PM

Using the federal guidelines as a model (because the Virginia guidelines are a disaster), I think that any child-witness enhancement would have to be tied somewhere into the vulnerable victim enhancement. I do not think that the mere coincidence of a child having a line of sight to the criminal should merit enhancement. Instead, I think the judge would have to find that the criminal knew the child would be present and either (a) the criminal intended that the child be present for some tactical reason (i.e. planned the crime on the basis of the child's presence) or (b) the child has suffered some actual or psychological detriment as a result of witnessing the crime.

Posted by: A. Nony. Mous | Aug 24, 2009 1:54:48 PM

Good point, DEJ. Obviously, I think that it's particularly egregious when a child sees his parent victimized by a crime. And having a parent with a child makes the parent more vulnerable. (For example, I may take my chances if mugged. But maybe not if my kids are with me.)

With respect to other children witnessing, I think that needs to be addressed on a case by case basis.

Doug, your reference to a catfight is pathetic. I have no interest in engaging Supremacy Clause. Maybe if you stopped your Holder sycophancy, you'd notice that I never respond to SC.

Posted by: federalist | Aug 24, 2009 2:26:14 PM

Federalist: I like to respond to all my commentors, including SC. For example, he asks "how come you crim law profs spend so much time teaching common law crime?" The answer is: WE DON'T! My students would not even know what a common law crime is, and I am not sure I know either since it was not taught to me 20 years ago and I do not teach it now. To the extent the topic is even raised, it is usually to provide students with historical perspectives, since that perspective plays an important role in understanding modern criminal doctrines like felony murder and the marital rape exception.

Sorry the catfight idea fell flat --- I was enjoying watching my cat playfully fight with my dog while I was reading blog commentary, and I was hoping to see you two mix it up. Oh well..., thanks for the continued engagement anyway.

Posted by: Doug B. | Aug 24, 2009 2:39:54 PM

I think it really depends on the nature of the crime. I do think that federalist has a point that there may be times where a crime is done that a child witnesses that is especially harmful to that child, like an 10 year old seeing their parent killed. But I think it's very case specific. For example, I would not think the same way if it was an 8 mo old baby. The child simply will not have any memory of the event and so there, in effect, was no harm done to the child.

The real problem with this type of enhancement is where it gets to be just another excuse for adding on more time no matter how attenuated the supposed harm to the child actually happens to be. Drug cases are a good example of that.

Posted by: Daniel | Aug 24, 2009 3:54:44 PM

Daniel, the other issue is the vulnerability of the victim. Let's say I'm with my 3 month old baby. 2 or 3 juveniles could easy mug me, and I'd really have no power to resist because they could hurt my baby. Without my baby, 2 or 3 juveniles risk their lives trying to mug me.

Posted by: federalist | Aug 24, 2009 5:04:13 PM

I was assulted infront of my children outside their school, my children are devastated crying everyday not wanting to go to school its really broke their hearts, the sad thing is they will never forget the persons face as it was their auntie that did it and my sister inlaw. So I agree with harsher sentences for people who carry out an assult in front of minors.

Posted by: Shaz | Nov 6, 2009 3:47:42 PM

To this day she shows no remorse.

Posted by: Shaz | Nov 6, 2009 3:50:41 PM

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