Crime and Parenthood: The Uneasy Case for Prosecution of Negligent Parents

More than 5600 children die in this country every year as the result of unintentional injuries. Although these deaths are not all the result of parental negligence, a significant percentage are. Despite the prevalence of this phenomenon, we know almost nothing about how these cases are treated by the criminal justice system. Commentators frequently claim, without empirical support, that parents are rarely prosecuted, and prosecutors are relying on this common perception in making charging decisions in individual cases. This article broadens our understanding of how the criminal justice system treats parental negligence cases by reporting on the results of my empirical study examining one common cause of death, leaving a child unattended in a motor vehicle. The results fly in the face of conventional wisdom: parents were in fact prosecuted in more than fifty percent of the incidents. Moreover, blue collar parents were far more likely to be prosecuted than parents from wealthier socio-economic groups. The article then shifts from the descriptive to the normative, as it considers the extremely difficult question whether these parents should be prosecuted. Specifically, what should be the relevance of a defendant's emotional suffering when making a prosecution decision? The article argues that consideration of suffering is best left to the time of sentencing, because declining to charge defendants who are experiencing emotional pain as the result of the crimes they committed denigrates the lives of child victims and raises real concerns about equality of treatment.