Bad Prosecutions And The Low Hanging Argument Against Them

The parents of Ethan Crumley, James and Jennifer, have been charged with manslaughter for their son’s school shooting and killing of four students. On its surface, many applaud this prosecution, as they seem to be horrible parents who produced and facilitated action from a child that had horrific and tragic consequences. There is little sympathy of the Crumley family to be found.

But the attenuated connection between being bad parents and a child murdering students is a huge legal stretch. That doesn’t mean it won’t work, just as the sophist legal reasoning that turned drunk drivers into murderers worked. Or, if that example doesn’t bother you too much, the legal reasoning that turned in rem civil asset forfeiture to “take the profit out of crime” into a license to steal. It may start with the people we hate, so we shrug off the outrageousness of the law because “screw ’em,” but it never ends there.

When the defendants are unsympathetic, we shrug off a lot of bad reasoning and don’t lose too much sleep over their prosecution. Indeed, we sometimes applaud it, dubious reasoning aside. After all, these were bad people and a prosecutor found a way to nail them. Why go out on a limb to back them when we feel pretty good about the bad people getting nailed?

And they’re white people. This should be completely irrelevant to our consideration, and it is rationally irrelevant, but it’s not irrelevant. White people behaving badly are not merely unsympathetic, but socially beneficial targets, because black people have for so long been unfairly targeted. It’s a payback thing, even though some would prefer not to frame it that way.

But people are brutal despite their denials and pretense of empathy. There is a strong current of make the white criminals suffer like black people suffered for so long. Criminal law reformers with integrity know better, that the point is to make the system less carceral for everyone, not more carceral for white people and less for black. But they are few, and the throngs of unduly passionate activists lust for blood, thrill at brutality, as long as it’s directed at the politically correct targets.

The problem is that this ignores the hard question here, whether this extension of law to hold the parents culpable for the alleged murders by their child is a legally sound theory of prosecution. There are strong emotional arguments for prosecuting the Crumley parents. Their actions were awful. They could have prevented the needless killing of four children. School shooting are a particularly horrific tragedy, heartbreaking to anyone with a heart. Their adoration of guns, to the extent of buying their obviously troubled child a weapon of destruction, violates the most fundamental fears of gun control advocates. Who doesn’t hate these parents?

But the theory of prosecution that’s being used to prosecute the parents for manslaughter isn’t dependent on how despised they are. If the Crumleys can be prosecuted for being lousy parents, for their contribution to their son’s commission of murder, for their failure to prevent their son from committing murder, so can other parents.

And who should we expect to bear the brunt of the state’s expanded punitive power? Evan Bernick, an assistant professor of law at the Northern Illinois University College of Law, predicts it would be Black parents.

“Given common negative stereotypes about Black criminality and parental irresponsibility, holding parents responsible for their children’s felonies could easily lead to still more racially disparate prosecutions,” he writes in The Washington Post. And because racial minorities are also more at risk for gang involvement, “prosecutors might target Black parents who fail to identify warning signs in advance and don’t intervene before someone gets hurt or killed.”

There is little doubt that Bernick is right. If this theory of prosecution is being applauded because the Crumleys are hated, and they’re allowed to be hated by decent and moral people who would otherwise be out marching against over-incarceration, succeeds, then it will most assuredly end up being used against black parents, opening yet another avenue to hold black people culpable and put more black people in prison.

This argument is made to blunt the cries for changing the head on the corpse, the shallow grasp of the well-intended but vapid social justice warrior who doesn’t let reason get in the ways of his feelings of hatred. Remember that this theory of prosecution you’re applauding now will come back to bite black people in the butt later, so even though the Crumleys are white, gun nuts, and terrible parents, remember that once this theory becomes an accepted thing, it won’t be limited to the Crumleys.

The argument works for those whose understanding of law is limited to its application by race. Making the argument to address the hypocrites and ninnies is likely the best and only way to get them to pause for a moment, put down their torches and pitchforks and give whatever amount of thought they’re capable of to what happens down the road. And what will happen is that black parents will be prosecuted for the bad things their children do.

This is, of course, the wrong argument and a bad argument. The question is whether this is a sound theory of prosecution without regard to the race of the people against whom it’s applied. Is the attenuated culpability put on parents, making them criminally responsibility for an act perpetrated by their child that they might have prevented, a sound theory of prosecution?

Even though it may, in this instance, have broad visceral appeal because this crime was so awful and these parents so cavalier, do we want to hold people culpable for the conduct of others that may or may not occur based upon a post-hoc determination of what indicia may have existed that they should have, could have, seen and prevented it?

If this theory of prosecution is sound, it’s sound. It’s sound for the Crumleys and for others, without regard to their race. And if it is sound, then it should be, without regard to their race. Having already argued why this approach is unsound, the concern that it will be applied to black parents isn’t in issue, not because of their race, but because this is a bad theory of prosecution, the race of any potential future defendants notwithstanding.

17 thoughts on “Bad Prosecutions And The Low Hanging Argument Against Them

  1. Bryan Burroughs

    On the one hand, I think it’s a good idea to hold parents accountable for their children’s misuse of family-owned firearms. On the other, its something which should be explicitly codified. Attenuated responsibility in general isn’t well served by being at the whim of a prosecutor. Even less so in a case such as this.
    Warning signs are always obvious after the fact. When I was in 8th grade (pre-Columbine), a kid shot an assistant principal at a local high school and then killed himself. His father was a guidance counselor at my middle school. Honestly, if he couldn’t spot the warning signs with his training, experience, and education, I can’t imagine that the average parent could spot them with none of that experience or education, in a sample size of at most 5.
    And that’s just talking about the specific case of a school shooting. Extrapolating that out to any of the myriad of possible acts a child might do is pure folly. Codify the obvious ones, let the legislative process find the best solutions and guard as best it can against unintended consequences, and then accept that shit happens and even the best of parents can’t see it coming.
    Focusing on the case with just these parents, it’s likely that the only argument that can be made is the race-based argument, cause its certainly true. Is it the best one? Maybe not. But then again, I doubt we are getting a good overview of this particular situation from media reports, so it’s hard to make even a localized argument based in the facts of this case.

  2. Mike V.

    Part of this, I think, is the relatively modern idea that if something bad happens; we have to DO something. Bad law and bad prosecutions are the result of this impulse.

    It’s silly, I know; but I expect leaders (and politicians are supposed to be leaders) to resist those impulses and listen to the better angels of their nature.

  3. Hunting Guy

    Ezekiel 18:20

    “The soul who sins shall die. The son shall not suffer for the iniquity of the father, nor the father suffer for the iniquity of the son. The righteousness of the righteous shall be upon himself, and the wickedness of the wicked shall be upon himself.”

  4. B. McLeod

    This is another one of those result-dependent approaches that punishes an occurrence rather than specific conduct. The conduct itself (apart from the father lying on a federal form) was lawful. If two sets of parents engaged in the exact same conduct, but one set was lucky enough to have a non-homicidal child, the conduct is fine for the lucky parents, but criminally punishable for the unlucky ones. Based on what happens, not on what they did. This is an irrational way to approach law and public policy.

    1. delurking

      It would be good if it were possible to punish specific conduct independent of the follow-on result as a universal approach to law and policy, but it isn’t. For a daily example, look at driving. A moment’s inattention can result in someone’s death and a prosecution, or not. There is no practical way to punish all of the moments of inattention, but there has to be some penalty, so we punish those that result in bad outcomes. I can’t see a way around that problem. To me, the parents’ actions are too far removed from the child’s murders for me to also call the parents murderers. At heart, this is because it is so rare for children to be homicidal. But, the vast majority of moments of inattention behind the wheel have no consequence also. It is a line drawing exercise.

      1. SHG Post author

        Negligence. How does it work?

        (Just so you know, there have so many truly awful comments that yours, being merely really bad, made the cut.)

  5. Evan Bernick

    Hey Scott,

    Thanks for engaging with my piece. I agree with you that it’s a bad theory of prosecution, irrespective of the race of those to whom it is applied—but thought it worth highlighting a particular blind spot among those who consider themselves progressive.

    Best,
    Evan

    1. SHG Post author

      I agree, on both counts, and that it’s unfortunately necessary to raise the point you made for the sake of persuading progressives. But it is.

  6. Skink

    “Even though it may, in this instance, have broad visceral appeal because this crime was so awful and these parents so cavalier, do we want to hold people culpable for the conduct of others that may or may not occur based upon a post-hoc determination of what indicia may have existed that they should have, could have, seen and prevented it?”

    This is exactly the correct issue. For the lawyers among us, I suggest you spend your public time in the next few days asking this question to non-lawyers. They will answer in the affirmative and tell you it’s because the parents are shit, so they must be held accountable.

    Then you will explain, because you are a lawyer, that the law has broad implications. If it’s appropriate to charge this couple in this instance, then it must follow that parents can and must be criminally liable for other crimes that can be said to have occurred because they failed to raise their children to act within the law. You will explain that it must apply equally to misdemeanors, other felonies and murder. They will resist. They will say the law should only apply to murderers and bad parents of murderers. You will explain, again, that law can’t work that way and that criminal culpability must be based on clearly defined bad acts, not on the conduct of another. You might include a conversation about why vicarious criminal culpability ain’t such a great idea, especially given the three-felony rule.

    Lawyerin’ doesn’t stop in the office or courthouse.

      1. David Landers

        As a restaurant manager I care. If the law is not applied generally only based on its principles then how am I to act in the right and not act in the wrong in the most strenuous conditions, the most unforseen challenging of environments.

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