No one can seriously doubt that a parent’s unintended act, a mistake by all accounts, that results in the tragic death of his child is far greater punishment than any prison cell. So this story from St. Louis Today questions why prosecutors add “insult to injury.”
In 2007, his 3-year-old son, Joshua, found a loaded pistol left in a nightstand and shot himself in the chest.
Lesnick, a former federal police officer and licensed firearms instructor, pleaded no contest to charges of child endangerment and served a year’s probation. So did his wife, who was at their Wisconsin home when Joshua found the gun.
That was the penalty meted out by the criminal justice system. But Lesnick said it doesn’t come close to matching his real punishment.
“I have to look at my son’s killer in the mirror every day,” he said. “I am 100 percent responsible for my son’s death. That’s a heavy, heavy burden.”
Of course Lesnick should have known better. He was careless, no, reckless, in leaving his gun within reach of his son. And he will be punished for it every day of his life. What does prosecution add to the mix? Piling on? Society’s need to make someone pay whenever a child is killed?
This story came to light from a post by Doug Berman at Sentencing Law & Policy.
Ever the utilitarian thinker, my instinct in these sorts of cases is to bring a criminal charge in order to help “spread the word” as Lesnick puts it. Absent proof of any malice, I would not expect a parent or guardian to get a severe sentence for this kind of accidental crime, and yet the very decision to prosecute will help raise awareness about the risk of these sorts of tragedies. I certainly understand a retribributivist instinct that the parents in these of cases have “already been punished enough,” but that notion only leads me to want to ensure the criminal sanction is not too severe after we get the utilitarian benefits of going forward with an initial prosecution.
Of the legitimate bases for sentencing, “spreading the word” comes closest to general deterrence, though it doesn’t fit very well. General deterrence is the notion that by letting others know of the punishment for engaging in particular conduct, the price that will be paid, they will decide not to do so. But we’re not talking about intentional conduct here, a volitional choice.
We’re taking about carelessness, even if so bad as to rise to recklessness. It the absence of thought, or care, not an affirmative decision based on an assessment of penalty. If that was the case, certainly the death of a beloved child would far exceed any threat of other punishment as a reason to be more careful.
Rather, it’s the spread of information that tragedies do occur when carelessness happens, the purpose of which is to remind others to be careful. One would suspect that people who possess guns in houses with children would already be acutely aware of the risks, but then this issue extends beyond the facts of the case of Michael Lesnick.
The bigger question is whether prosecution should be used as a “utilitarian” method to serve purposes unrelated to individual wrongs. I think not. More importantly, I think this present an extraordinarily dangerous abuse of the criminal justice system to vindicate interests that really have nothing to do with the defendant or the conduct, but rather “use” the defendant for unrelated and completely improper purposes.
As is pointed out in a comment to Doug’s post, the fact of the tragedy happening will likely be report by the media anyway (it being incapable of passing up a story about a dead child), and the purpose of “spreading the word” is served without prosecution.
Conceding this, Doug argues that criminal prosecutions will cause the media to harp on the story, thus spreading the word farther, longer and louder. This is probably accurate as well. But it doesn’t bear at all on the issue of whether “spreading the word” is a legitimate reason to prosecute at all.
Radley Balko posted about Raquel Nelson on Huff Po, who was prosecuted and convicted for jaywalking with her children, one of whom was killed when struck by a car.
Nelson buried and grieved for her son. But on May 14, the Atlanta Journal-Constitution ran a long story under the headline, “Jaywalkers take deadly risks.” The article mentioned Nelson and her son, pointing out that she hadn’t been charged with any crime. Three days later, the Georgia Solicitor General’s office charged Nelson with the three misdemeanors.
Nelson was convicted last week, and she’ll be sentenced on July 26.
Is this the sort of prosecution that we should desire, encourage, so that mothers become aware that jaywalking can be dangerous? It’s certainly something that anyone crossing a street should consider, especially with children in tow.
But Raquel Nelson lost her 4-year-old son. Was society’s need to hear the story sufficient to justify putting this grieving mother through a prosecution? Was her walking across the street with her kids, despite the absence of a marked cross-walk, really so blameworthy that this had to follow?
Foremost in the decision to wield that incredibly blunt instrument, to prosecute, is the purpose served for the individual. If there is either too little blameworthy conduct, or too little purpose served by obtaining a conviction, then no one should wield the bludgeon just because it’s there and they can. And no one should ever do so to serve some disconnected societal purpose for which the criminal law was never intended.
It seems these days that there’s an interest group dedicated to eradicating any and every threat of harm that could befall a child. To those who believe that their concern demands action, the idea that someone must be punished is an article of faith, and the idea that the world must know of the horror is overwhelmingly obvious and necessary. Criminal law will then become the captive of the latest craze or concern, a handy weapon to combat every potential fear and threat at the expense of some poor, grieving parent.
Are we ready to sacrifice the individual, already suffering far more than any punishment the system could impose for the terrible offense of making a mistake, for the good of “spreading the word” and maybe saving another child? That’s not the way the system is supposed to operate, but it seems to be the trend we’re facing.
Just pray you never make a mistake.
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Something bad happens, so somebody has to pay. I’m convinced it’s no more complicated than that. All of the justifications and explanations in the world can’t change it.
To my mind imposition of a criminal penalty, i.e., prosecution, conviction and sentence, may arguably be justified by analyzing the foreseeability of the degree of risk the actor created by his or her reckless/negligent conduct. So viewed, punishing the man who owned the gun his child got a hold of makes sense to me. Not so much the jaywalking mother.
The foreseeability of risk is a very dubious metric. MADD will tell you every drunk driver kills. Stats, on the other hand, tell us it’s a one in a million risk. Foreseeability is very colored by politics and confirmation bias.
I don’t think drunk driving is an apt analogy, but if it is, it falls into the same matrix as the dad with a gun. And wrt your argument about forseability, isn’t forseability appropriately analyzed in cases of criminal negligent homicide, or does my memory fail?
Criminal negligence is defined by PL 15.05(4):
While the statute doesn’t mention foreseeability per se, it’s in there. The problem is that it remains a meaningless concept, subject to the sensibilities of whoever is doing the indicting. What constitutes a “gross deviation from the standard of care a reasonable person would observe?” We might all agree about somethings, but we are likely to disagree about where the edge should be.
As for drunk driving being an apt analogy, if I didn’t think so, I wouldn’t use it. Since no one knows who you are, it’s immaterial that you think otherwise, although that you consider drunk driving the same as a gun tells me that your threshold for vindictiveness and criminality is pretty low.
So you would prosecute the father whose son was accidentally killed by the gun because he deserves to be prosecuted? Sorry to hear that.
I don’t think I have a low thresh hold, as it were. I just view using cars and guns as inherently dangerous (see all the statutes governing them + the famous NJ seminal products liability case to make my point).
Got it. Anything involving guns and cars that causes harm deserves prosecution because they’re inherently dangerous. Thanks for bringing that thoughtful argument to the mix.
For future reference, if you look at the bottom of my response, you will see a link that says “reply to this.” Please use it rather than start a new thread with each comments.
You know, I found your blog because of your apt comments about the Marrone withdrawal and was impressed by them. Now you are being insulting because I do not agree with you. FYI I have practiced criminal appellate defense work for years and have successfully argued cases both in NY and NJ at all levels. If I read your last paragraph correctly, you would not prosecute that father even though he deserves to be prosecuted. What a mangling of criminal law.
Your blog is going to become very Zen-like , as in the sound of one hand clapping. The only opinion that counts, evidently, is yours. Watch this. I am unsubscribing as we speak.
This has nothing to do with whether you agree with me, but whether you grasped the point of the post. You’re stuck on your own normative views (Susan: I think so . . .) rather than the issue of whether someone should be prosecuted because it “sends a message.” You thought my Marrone post apt? I’m honored. It would have been nice as well if you had understood the point of this post rather than think it was all about “what does Susan think.”
Thanks for stopping by. I’ll try hard to survive without you.
As I’m reading this, I’m thinking to myself, why is Scott bothering to respond to this obviously clueless moron. He’s being awfully nice today.
And then it turns out it’s just another narcissitic psycho. She thinks she’s the only one who reads SJ because she can’t see the other 50k readers?Unbelievable.
I don’t know how you put up with these nutjobs, Scott.
See what I get for trying to be tolerant? No good deed goes unpunished.
And in the meantime, she’s shitted up the comments with her nonsense, none of which has anything to do with the issue raised by the post. Glad to hear she’s an appellate lawyer.
Let me guess, you’re sitting alone in a room, all obsessed with your own feelings, thinking that just because you can’t see anybody on the internet, you’re the only person here?
What a nut.
I assume that Susan (the other one) is new the blawgosphere and doesn’t really have much of a clue. Don’t be too harsh.
15 comments and only one having anything to do with the post. That’s pathetic.
Thanks for pointing that out. You must be a blast at parties.
Over the decades, I’ve been on many juries, and I’ve heard several prosecutors explain the purpose of punishment. I’ve never understood the justification for “sending a message,” “setting an example,” or similar. I always thought that taking out an ad in the newspaper might be more effective. For example, I likely hear of the outcome or even existence of less than .001% of the trials that occur.
I’d like to understand better how my naive concept of justice toward an individual can square with the reality of the legal system. Do you have any suggested references that are readable by a layman, in particular, any that give a historical perspective?
While I’m sure there are books on the subject, none come to mind. Conceptually, the legitimate purposes of sentencing are fivefold:
1. General deterrence: This is the “sending a message” to others who might be considering engaging in the same conduct that it carries severe consequences, in the hope that they will decide not to engage in criminal conduct.
2. Specific deterrence: This is sending a message to the particular defendant that he should not engage in criminal conduct again.
3. Rehabilitation: This is to provide a convict with an opportunity to obtain new skills or overcome an addiction so that he can go out and function as a law-abiding citizen.
4. Isolation: This is to protect society from the harm done by a convicted criminal.
5. Retribution: This is punishment for having done a harm to others.
Should negligence be criminalized? If so why?
As to the mother, she had a choice. She could stay with the other passengers or take 3 little children alone through the night a half a mile to the crosswalk. Weighing the risks. How is that a crime in the traditional sense.
I don’t think so, but apparently there some disagreement on this, even from someone claiming to be a CDL.
I’ve long had a problem with the “send a message” motivation behind laws or prosecutions. It seems to me that violates due process. The person isn’t charged or punished because of what he did, but because of what others may do.
I see that Raquel Nelson was sentenced to community service plus probation and offered a new trial. I have not seen anywhere what were specifically the grounds for being offered the new trial. Could someone post that information? Just curious.
A very curious ruling, sentence of probation or new trial. No explanation for the new trial that I’m aware of, other than it’s offered.