When I’ve pointed out some hypothetical situations where an innocent parent or caretaker could be unjustly charged with the death of a child—cases where a parent may be guilty of poor decisions or bad parenting, but hasn’t broken any laws—the response is usually that prosecutors would never a grieving parent or caretaker under those scenarios. If you’re a regular reader of this site, you’re probably already darkly chuckling at the naivete of that assumption. There already seems to be a rush to find criminal culpability when a child dies. This ProPublica investigation, which coincidentally came out just before the Casey Anthony verdict, documents a number of child death cases in which law enforcement officials have pressed for and won criminal convictions when the evidence strongly indicated that the death was an accident.
Enter the Marietta, Georgia, case of 30-year-old Raquel Nelson, which has been bandied about in the comments section the last few days. Last April, Nelson was crossing a street with her three children when her 4-year-old was struck and killed by a car. She was crossing at an intersection, but was apparently not in a designated crosswalk. The driver who killed her had been drinking, taking painkillers, and was blind in one eye. He also has two prior hit-and-run convictions. Nelson and her daughter were also struck and injured. Residents of Nelson’s apartment building have complained to the city about the intersection. The nearest crosswalk is a half mile away.
If we have as little to fear from overly aggressive prosecutors as supporters of Caylee’s Law claim, we could expect the prosecutor in this case to show some discretion and mercy for Nelson, right? Yes, she admits to jaywalking. Yes, she erred, and subjected her kids to unnecessary risk. But she just lost her son. It’s hard to fathom a more punishing, heartbreaking sentence. Moreover, the underlying “crime” here was a misdemeanor, one most of us commit every day. So mercy, right?
Of course not. Nelson was charged with second-degree vehicular homicide. Which is insane. She was convicted last week. When she’s sentenced later this month, she could spend more time in jail than the man who struck and killed her son. The prosecutor will say he was just enforcing the law. The jury will say they were just applying it. Both are excuses to duck responsibility (prosecutors can decline to bring charges, juries can nullify). But if both are true, then the time to prevent unjust the unjust application of well-intentioned laws is to anticipate those applications while the laws are being written and proposed. That means interpreting the most ridiculous, merciless, farfetched possible applications of the law, then assuming that somewhere, some prosecutor will attempt to apply the law in exactly those ways.
This morning, I debated Caylee’s Law on Oregon Public Radio with the legislator proposing the law in that state. He said prosecutors need another “tool in their toolbox” to go after bad parents like Casey Anthony. At the same time, he also acknowledge tha cases where the law would be necessary were probably extremely rare. (Challenge to supporters of this law: Find me three other cases where a parent failed to report a missing child for days on end, was widely suspected of killing that child, but was acquitted of murder charges in court.) But just because legislators intend for the law to be used in very limited circumstances doesn’t mean prosecutors won’t attempt to use the law more frequently.
Prosecutors don’t need more “tools” in these cases. They have plenty. They need more discretion. And empathy. And a more complete understanding of justice.