Thursday, March 12, 2009

How should the law treat parents who fatally leave their children in cars?

That seems to be the question everyone on the blogosphere is talking about, due to this Washington Post article, which is based on 13 interviews with parents who killed their children in the same way: driving to the parent's destination, forgetting to drop the kid off somewhere, and leaving the kid in the hot car for a long time. (There should really be a warning on that article for the benefit of those who don't feel like running into a graphic description of a child slowly dying.)

More details:

"Death by hyperthermia" is the official designation. When it happens to young children, the facts are often the same: An otherwise loving and attentive parent one day gets busy, or distracted, or upset, or confused by a change in his or her daily routine, and just... forgets a child is in the car. It happens that way somewhere in the United States 15 to 25 times a year, parceled out through the spring, summer and early fall.
Here's Matthew Yglesias's take, and here's Megan McArdle's. There’s some heated debate on both of those posts. [Update: more reactions at Metafilter and Nudge.]

So, should this be a crime? The Pulitzer Prize-winning Washington Post writer, Gene Weingarten, says:
There may be no act of human failing that more fundamentally challenges our society's views about crime, punishment, justice and mercy. According to statistics compiled by a national childs' safety advocacy group, in about 40 percent of cases authorities examine the evidence, determine that the child's death was a terrible accident -- a mistake of memory that delivers a lifelong sentence of guilt far greater than any a judge or jury could mete out -- and file no charges. In the other 60 percent of the cases, parsing essentially identical facts and applying them to essentially identical laws, authorities decide that the negligence was so great and the injury so grievous that it must be called a felony, and it must be aggressively pursued.
There's a lot of talk about how these things aren't "intentional"; they're "accidents." One parent told Weingarten:
"I don't feel I need to forgive myself, because what I did was not intentional."
But that doesn't mean the act isn't illegal. Not all crimes are intentional. There are crimes based on "recklessness" or "negligence."

A lot of people have a strong emotional reaction that parents who do this shouldn't be prosecuted. Emotion can be a useful guide to what's right, but it's also important to step back and analyze it. Why do people have that reaction? Is it because the article starts out describing the agony of a particular father who did this, with a touching photo of the man holding his lost child's stuffed animal and looking overwhelmed with sadness?

Well, what if you were the parent ... and your babysitter did this to your child? Would you want the babysitter to be charged with a crime (assuming they're over 18)? It would hardly seem principled to have a rule that parents are legally allowed to do this to their children but babysitters aren't allowed to do it to other people's children.

To me, the decisive factor is the "lifelong sentence of guilt far greater than any a judge or jury could mete out." No matter what technical argument might be made about how prosecutors could legally charge the parent with a crime, that doesn't mean they have to do so. Living with the guilt is punishment enough; it seems like a waste of resources to make the parent also serve a prison sentence, even a light one.

Another problem, though: this is a well-crafted article that describes the parents as sympathetic and loving. But there are parents who neglect their children because they routinely get drunk or high. I haven't seen any evidence to show that any such parents have caused their children to die by leaving them in cars, but it's possible. Should prosecutors treat those parents differently from "normal" parents?

Many people are outraged at the parents: "How could you possibly forget your child in the car?!" I actually think it's disturbingly easy to imagine this. Can't you think of a time when you told yourself, "I have to do tasks A, B, C, and D in the next hour," then felt assured that you did everything you were supposed to, only to realize hours later that you never did task B? Well, imagine doing that, but task B is dropping your kid off at day care.

Megan McArdle has a good retort to the people who have that outraged reaction:
[T]he belief that you cannot possibly leave your kids in a car seat on a warm day is very dangerous to your kids. It is a virtual certainty that someone who read that article, and said to himself "That's BS--I could never leave my kid in a parked car"--will leave their kid in a parked car. It is the people who are afraid of it, who think that they could do the unthinkable, who are most likely to avoid that fate.
The Washington Post article quotes Ed Hickling, an Albany, NY psychologist, explaining why people have this reaction:
"We are vulnerable, but we don't want to be reminded of that. We want to believe that the world is understandable and controllable and unthreatening, that if we follow the rules, we'll be okay. So, when this kind of thing happens to other people, we need to put them in a different category from us. We don't want to resemble them, and the fact that we might is too terrifying to deal with. So, they have to be monsters."
Interestingly, the author admitted after publishing the piece that he had a blatant bias in writing the article. No, he didn't kill his child. But by his own admission (published in this Q&A published shortly after the article), he almost did. He would have left his infant in a locked car -- in the summer, in Miami -- but his daughter Molly happened to say something right before he was going to get out. Before then, he had no idea she was still there. He adds:
I did not tell my wife about that moment in the parking lot, not for years, not until half a year ago when I began working on this story and needed to explain why it was keeping me awake nights. And I didn't tell Molly about it until just a couple of months ago; oddly, I found that 25 years after the day no harm was done, I couldn't look her in the eye.
So, can this be stopped? Some people suggest car alarms. Well ...
there is the Chattanooga, Tenn., business executive who must live with this: His motion-detector car alarm went off, three separate times, out there in the broiling sun. But when he looked out, he couldn't see anyone tampering with the car. So he remotely deactivated the alarm and went calmly back to work.
The author (again, in the Q&A) has a suggestion that seems more useful:
[Make] sure that daycare centers ALWAYS call the parent if the child doesn't arrive one day.