Bando
Golden Hoya (over 1000 posts)
I've got some regrets!
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Ugh
Mar 10, 2009 12:32:48 GMT -5
Post by Bando on Mar 10, 2009 12:32:48 GMT -5
This Gene Weingarten article in Sunday's Post Magazine is perhaps one of the greatest articles I've ever read, while at the same time the most heartbreaking and sad. I'm passing it on not because I wish to bum everyone out, but because it's really quite a piece of work.
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Ugh
Mar 10, 2009 21:01:55 GMT -5
Post by showcase on Mar 10, 2009 21:01:55 GMT -5
Read that online saturday morning. Quite chilling.
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Ugh
Mar 11, 2009 14:17:15 GMT -5
Post by Coast2CoastHoya on Mar 11, 2009 14:17:15 GMT -5
That was a truly moving article.
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Boz
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Ugh
Mar 11, 2009 16:13:49 GMT -5
Post by Boz on Mar 11, 2009 16:13:49 GMT -5
So, am I going to be the heartless jerk here? I guess I am.
Look, don't get me wrong. I have tremendous sympathy for for the grief, anguish, remorse and almost certainly self-loathing that these parents feel and probably will feel for the rest of their life.
But this is a crime. Not 40% of the time, not 60% of the time...100% of the time.
Even if if is a mistake, and of course it is in just about every case (while not included in this article, I think we know the world too well to believe that there aren't cases where this is not a mistake, but thankfully I think that is extremely rare), it is still a crime.
And no, I am not trying to characterize the people whose babies die from this type of negligence as "evil." I have no doubt of Weingarten's testimony that they are good people who had a fatal lack of judgment. Sometimes good people do commit crimes. That does not mean they are not crimes.
I feel horrible for these parents. But I feel worse for their children. Calling this type of thing an "accident" that shouldn't be prosecuted is flat out crazy, in my opinion. You want to talk about plea deals for mitigating circumstances? Fine, that is negotiable and understandable.
The only real issue I would take with the article itself is the characterization of Lyn Balfour. I completely appreciate that she wants to support other parents who lost children due to their own negligence. But I do think Weingarten goes a little too far out of his way to characterize her as more heroic than I think she deserves. Again, please don't misunderstand. This is not to say she is a "bad" person. But I think the author goes out of his way to explain all of the circumstances, none of which excuse her negligence.
(That's another problem I have...through this whole piece the author uses the word "negligence" all of....one time. It appears two other times, but those are instances of quoting people who commented online about the case).
Bando, I know you weren't trying to make a point about criminality or not, just pointing out the poignancy of the story. And it is certainly poignant.
But criminality is clearly a topic of the story, so that's my opinion. I wish nothing but peace for any parent who loses a child in this manner, but I also think they committed a crime.
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Bando
Golden Hoya (over 1000 posts)
I've got some regrets!
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Ugh
Mar 11, 2009 16:31:25 GMT -5
Post by Bando on Mar 11, 2009 16:31:25 GMT -5
I hear what you're saying, Boz. I guess I'd just ask you (and this is echoing Weingarten, of course) what the point of prosecution would be. It's not like it would have any deterrent effect, and it's certainly not any more punishment than they're already inflicting upon themselves. Is this just a case of justice that has be implemented regardless of externalities?
(I don't really have a position either way, as I've never really thought about it. I'm just playing Devil's advocate here.)
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Mar 11, 2009 16:43:14 GMT -5
Post by Coast2CoastHoya on Mar 11, 2009 16:43:14 GMT -5
Interesting questions, Boz and Bando. You both make good points.
While I'm of the opinion that this conduct is certainly negligence for which there is culpability, is it really appropriate to view it in simple criminal terms? Put another way, would this conduct be better viewed/prosecuted/dealt with as a tort or other civil offense, rather than a criminal offense? Would monetary contribution via civil liability to, say, an education fund aimed at preventing this kind of tragedy accomplish the cause of justice better than jail time or a criminal record? That's kind of where I come down.
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HealyHoya
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Ugh
Mar 11, 2009 17:20:13 GMT -5
Post by HealyHoya on Mar 11, 2009 17:20:13 GMT -5
Cursory internet research shows that in the three year period (1990-1992) immediately preceding the mass popularity and inclusion of airbags in US automobiles, there were 11 reported cases of child hypothermia in a car. From 2004 to 2006, there were 110 cases. So, even if we concede that the earlier data may suffer from under-reporting, clearly the move to put infants in the back seat and away from airbags has played a huge role in increasing the odds/frequency of this sort of tragedy. Given those numbers, I find the most interesting aspect of the article to be the supposed lack of commercial viability for a ready-made product that alerts/reminds a parent of their child in the back seat.
There is no car seat with this option built-in? There is no pressure sensitive after-market product that can be purchased? A parent can't shell out $10, $50, $250 for something that addresses this possibility? Again, a cursory internet search reveals there are products on the market for this.
My heart breaks for Lyn Balfour and any other parent who has faced such a tragedy. I would hope that those who read this article spend a few bucks to insure against something like this happening.
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Boz
Blue & Gray (over 10,000 posts)
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Ugh
Mar 11, 2009 19:26:34 GMT -5
Post by Boz on Mar 11, 2009 19:26:34 GMT -5
Some points in response:
First, Healy, I am always in favor of practical solutions, so if there are these types of products, of course they should be promoted, readily available just like any other child safety measure. Hopefully affordable for all as well.
Second, C2C, I am not going to pretend to be an attorney, so I don't know what types of punishments are available, but I do think a criminal charge is justified. Maybe I wasn't clear about this in my original post when I just mentioned "plea deals" (partly because I don't know too much legal lingo). I am not advocating that these parents should be send to jail for 30 years. I imagine there are any number of punishments that could be applied in in a sentence and I would be very much supportive of a sentence that could also be constructive in some way.
Again, my lack of thorough knowledge of the criminal law system is going to show here, but I know courts can impose fines for crimes as well as jail time. Can courts also direct how those fines will be used? I don't know, but if that is a possibility, imposing a stiff fine to be directed to a prevention/education program would be something I would totally support.
In some cases, I do think jail time would be justified (depending on the circumstances), but suspended jail sentences with (very large) fines & amounts of community service in child safety programs would be something I could support. I'm sure with some more time, I could come up with some other alternatives.
Finally, with respect to Bando, yes, I do think there is need for justice outside of deterrence or punishing someone who already is tearing themselves apart with guilt. Let's take the example of Lyn Balfour. The type A personality, brain whizzing a mile a minute, etc. etc. Let's say she didn't forget about her child. Let's say she was driving in her car and talking on the phone (not illegal...yet), putting on makeup (not illegal), basically not paying attention, and she kills someone because she is not watching the road. Or God forbid, she kills a member of her own family as she is driving toward her home (sorry for being so morbid, just trying to depict an example). The guilt she would feel for this and punishment she would inflict on herself would be just as huge, wouldn't it? You wouldn't argue that she shouldn't be prosecuted for that, would you?
I know there are some problems with the analogy, I'm just trying to point out that we can't determine prosecution based on how guilty someone already feels about what they have done, or the internal punishment they are inflicting on themselves.
Anyway, like I said before, I am not trying to be heartless here, but I just see this as negligence of the worst order. And negligence that leads to a death is something that we have traditionally defined as a felony crime. I think that should be the case in these instances, and whatever sentence can be the most constructive, I would like to think that I could support that.
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Ugh
Mar 11, 2009 20:09:44 GMT -5
Post by Coast2CoastHoya on Mar 11, 2009 20:09:44 GMT -5
Thanks for your response Boz. Very constructive, not heartless.
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Filo
Diamond Hoya (over 2500 posts)
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Ugh
Mar 11, 2009 20:37:08 GMT -5
Post by Filo on Mar 11, 2009 20:37:08 GMT -5
I am surprising myself by coming out on the other side...
It is clear that a 'reasonable person' should have known something bad could come out of not paying attention while driving (whether putting on make-up, talking on the phone, etc.). I have a hard time applying a reasonable person standard to what happens in the incidents described in the article. Of course, a reasonable person would know something bad will come out of leaving a child unattended in a hot car for an extended period. But the thing is, these people did not intend to do that and, in fact, did not realize they had done it until it was too late. So, while the outcome is the most horrible thing imaginable, I just can't call the cause of it negligence of the worst order, and I have a hard time calling it criminal negligence, at all.
Tough tough issue, but I don't see how justice results from prosecuting the parents here -- in other words, I don't see which of the usual objectives for enforcing criminal laws) deterrence, rehabiliation, retribution, etc.) are accomplished.
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Ugh
Mar 11, 2009 20:48:59 GMT -5
Post by Coast2CoastHoya on Mar 11, 2009 20:48:59 GMT -5
Under the law, intent/purpose/knowledge > recklessness > negligence. I don't have my Black's Law Dictionary handy, but will post the definition tomorrow (unless one of the other thousand lawyers on HoyaTalk wants to )
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Ugh
Mar 11, 2009 22:28:46 GMT -5
Post by AustinHoya03 on Mar 11, 2009 22:28:46 GMT -5
Under the law, intent/purpose/knowledge > recklessness > negligence. I don't have my Black's Law Dictionary handy, but will post the definition tomorrow (unless one of the other thousand lawyers on HoyaTalk wants to ) And here's one of my big problems with the article. 'Intentionally' committing an act might not always be the relevant mental state, as the article would lead one to believe. In my jurisdiction, for example, leaving a child in the backseat of a car might appropriately be charged as a) criminally negligent homicide; b) abandoning/endangering a child; or c) injury to a child. For a), the actor must act with criminal negligence. For b) and c), the actor must act intentionally, knowingly or recklessly. If anyone's curious, the Texas definitions of those terms (sorry C2C, but Black's definitions have no bearing on criminal law unless a term is undefined, and mental states are always defined) can be found here. When A) a crime has been committed, according to the letter of the law (and in many jurisdictions, the stories described in this article are crimes according to the letter of the law); B) district attorneys are elected; and C) there is a dead child involved, it is not overly surprising that some of these cases go to jury trial. Taking the case to trial satisfies bloodsuckers like Boz, and the jury nullification/not guilty verdict satisfies bleeding hearts like Bando. If the jury comes back with a guilty verdict, well, most elected DAs don't rely on bleeding hearts for re-election anyways. However, Weingarten never delves deep enough into the workings of the criminal justice system, which would have made the article much more interesting, IMO. On page 2, Weingarten writes: "There may be no act of human failing that more fundamentally challenges our society's views about crime, punishment, justice and mercy." But he fails to state what our views are on those subjects, or delve into a discussion of our views on those subjects, or debate whether our criminal justice system is even adequately equipped to deal with these subjects. He skips what could be a very worthwhile discussion in favor of shoving gruesome story after gruesome story in the reader's face. If it bleeds it leads, I suppose.
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Nevada Hoya
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Ugh
Mar 11, 2009 22:35:37 GMT -5
Post by Nevada Hoya on Mar 11, 2009 22:35:37 GMT -5
We have to deal with this situation about once a year in Las Vegas. It does not take long for a child left in a car to die in the heat of the summer here. It is always so sad.
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Bando
Golden Hoya (over 1000 posts)
I've got some regrets!
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Ugh
Mar 11, 2009 22:53:55 GMT -5
Post by Bando on Mar 11, 2009 22:53:55 GMT -5
Under the law, intent/purpose/knowledge > recklessness > negligence. I don't have my Black's Law Dictionary handy, but will post the definition tomorrow (unless one of the other thousand lawyers on HoyaTalk wants to ) And here's one of my big problems with the article. 'Intentionally' committing an act might not always be the relevant mental state, as the article would lead one to believe. In my jurisdiction, for example, leaving a child in the backseat of a car might appropriately be charged as a) criminally negligent homicide; b) abandoning/endangering a child; or c) injury to a child. For a), the actor must act with criminal negligence. For b) and c), the actor must act intentionally, knowingly or recklessly. If anyone's curious, the Texas definitions of those terms (sorry C2C, but Black's definitions have no bearing on criminal law unless a term is undefined, and mental states are always defined) can be found here. When A) a crime has been committed, according to the letter of the law (and in many jurisdictions, the stories described in this article are crimes according to the letter of the law); B) district attorneys are elected; and C) there is a dead child involved, it is not overly surprising that some of these cases go to jury trial. Taking the case to trial satisfies bloodsuckers like Boz, and the jury nullification/not guilty verdict satisfies bleeding hearts like Bando. If the jury comes back with a guilty verdict, well, most elected DAs don't rely on bleeding hearts for re-election anyways. However, Weingarten never delves deep enough into the workings of the criminal justice system, which would have made the article much more interesting, IMO. On page 2, Weingarten writes: "There may be no act of human failing that more fundamentally challenges our society's views about crime, punishment, justice and mercy." But he fails to state what our views are on those subjects, or delve into a discussion of our views on those subjects, or debate whether our criminal justice system is even adequately equipped to deal with these subjects. He skips what could be a very worthwhile discussion in favor of shoving gruesome story after gruesome story in the reader's face. If it bleeds it leads, I suppose. I think you're criticizing for an article he didn't write. His focus was how this impacts the families involved. Any criminal and justice aspects were not the thrust of his piece.
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Ugh
Mar 11, 2009 23:03:21 GMT -5
Post by Coast2CoastHoya on Mar 11, 2009 23:03:21 GMT -5
Under the law, intent/purpose/knowledge > recklessness > negligence. I don't have my Black's Law Dictionary handy, but will post the definition tomorrow (unless one of the other thousand lawyers on HoyaTalk wants to ) And here's one of my big problems with the article. 'Intentionally' committing an act might not always be the relevant mental state, as the article would lead one to believe. In my jurisdiction, for example, leaving a child in the backseat of a car might appropriately be charged as a) criminally negligent homicide; b) abandoning/endangering a child; or c) injury to a child. For a), the actor must act with criminal negligence. For b) and c), the actor must act intentionally, knowingly or recklessly. If anyone's curious, the Texas definitions of those terms (sorry C2C, but Black's definitions have no bearing on criminal law unless a term is undefined, and mental states are always defined) can be found here. When A) a crime has been committed, according to the letter of the law (and in many jurisdictions, the stories described in this article are crimes according to the letter of the law); B) district attorneys are elected; and C) there is a dead child involved, it is not overly surprising that some of these cases go to jury trial. Taking the case to trial satisfies bloodsuckers like Boz, and the jury nullification/not guilty verdict satisfies bleeding hearts like Bando. If the jury comes back with a guilty verdict, well, most elected DAs don't rely on bleeding hearts for re-election anyways. However, Weingarten never delves deep enough into the workings of the criminal justice system, which would have made the article much more interesting, IMO. On page 2, Weingarten writes: "There may be no act of human failing that more fundamentally challenges our society's views about crime, punishment, justice and mercy." But he fails to state what our views are on those subjects, or delve into a discussion of our views on those subjects, or debate whether our criminal justice system is even adequately equipped to deal with these subjects. He skips what could be a very worthwhile discussion in favor of shoving gruesome story after gruesome story in the reader's face. If it bleeds it leads, I suppose. Mea culpa and no worries; we're actually on the same page. I was just responding to Filo's insinuation about the relevance of "intent" per se when the legal question is about negligence and pointing out how criminal law distinguishes the concepts (albeit an oversimplification that was, in hindsight, underclarified). Obviously Black's definitions don't control, but I thought they were illustrative on that point. mens rea baby, mens rea
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Ugh
Mar 11, 2009 23:34:09 GMT -5
Post by AustinHoya03 on Mar 11, 2009 23:34:09 GMT -5
I think you're criticizing for an article he didn't write. His focus was how this impacts the families involved. Any criminal and justice aspects were not the thrust of his piece. Fair enough -- I'm probably complaining those topics weren't fully explored because those topics are interesting to me. However, I would argue the criminal justice system is not merely tangential to "how this impacts the families involved," and yet the author uses indictments, trials, etc. as mere devices to make his heartbreaking stories more heartbreaking, all while coming very close to misstating the law. If you like the elevation of emotion over analysis, that's cool with me, but I found the article disappointing and (as I insinuated above) only a slight step above shock journalism. ON EDIT: Hmm. I think this post might make me the heartless jerk. Oh well. C2C: Sorry, I misunderstood your previous post. My bad.
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Boz
Blue & Gray (over 10,000 posts)
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Ugh
Mar 12, 2009 8:08:47 GMT -5
Post by Boz on Mar 12, 2009 8:08:47 GMT -5
For the record, I don't "suck" blood. How terribly gauche. I drink it out of a bejeweled crystal goblet, of course.
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Bando
Golden Hoya (over 1000 posts)
I've got some regrets!
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Ugh
Mar 12, 2009 10:13:30 GMT -5
Post by Bando on Mar 12, 2009 10:13:30 GMT -5
For the record, I don't "suck" blood. How terribly gauche. I drink it out of a bejeweled crystal goblet, of course. To follow Boz, I'd also like people to stop mocking my bleeding heart. It's a serious medical condition!
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Filo
Diamond Hoya (over 2500 posts)
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Ugh
Mar 12, 2009 10:35:42 GMT -5
Post by Filo on Mar 12, 2009 10:35:42 GMT -5
I was just responding to Filo's insinuation about the relevance of "intent" per se when the legal question is about negligence and pointing out how criminal law distinguishes the concepts (albeit an oversimplification that was, in hindsight, underclarified). Uh, what am I missing? I thought I was pretty much removing all reference to intent by introducing the reasonable person standard (or, the "he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur" language from the code cited by Austin). It's been about 15 years since I took crim law
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kchoya
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Ugh
Mar 12, 2009 12:15:48 GMT -5
Post by kchoya on Mar 12, 2009 12:15:48 GMT -5
I am surprising myself by coming out on the other side... It is clear that a 'reasonable person' should have known something bad could come out of not paying attention while driving (whether putting on make-up, talking on the phone, etc.). I have a hard time applying a reasonable person standard to what happens in the incidents described in the article. Of course, a reasonable person would know something bad will come out of leaving a child unattended in a hot car for an extended period. But the thing is, these people did not intend to do that and, in fact, did not realize they had done it until it was too late. So, while the outcome is the most horrible thing imaginable, I just can't call the cause of it negligence of the worst order, and I have a hard time calling it criminal negligence, at all. Tough tough issue, but I don't see how justice results from prosecuting the parents here -- in other words, I don't see which of the usual objectives for enforcing criminal laws) deterrence, rehabiliation, retribution, etc.) are accomplished. I think there are two questions at play here: 1. Is this a crime (or do you think it should be a crime)? 2. If so, do you think it should be prosecuted? You can have lots of situations where the elements of a crime are technically met, but the prosecutor declines to prosecute. It's called prosecutorial discretion and I think it's a lost art with a lot of prosecutors I've dealt with. Even if you think a crime was committed in these instances, I think the more relevant question is whether the parent should be prosecuted. Filo hits it on the head - which of the traditional rationales would be served by prosecuting these people? Deterrence - is there a group of evil parents out there we need to deter from intentionally leaving their kids in a hot car? Rehabilitation - not sure how going through a criminal prosecution is going to do anything other than inflict more pain and injury on these people. Retribution - haven't these parents paid enough of a price? Clearly this comes into play in many criminal cases. However, I don't see how forcing someone to spend time in jail or pay a fine is going to have any more of an effect. Boz, I fail to see how any sort of sentence would be constructive in these cases.
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