Wednesday, December 28, 2011
You probably heard about the terrible fire here in Stamford where a couple and their three grandchildren died on Christmas morning. The children’s mother, who owned the home, and her friend escaped the blaze only to watch the tragedy helplessly. The home was not very close to where I live. That neighborhood is right on Long Island Sound, on a peninsula which juts out from the coastline. It is a very expensive neighborhood, I believe. The home which burned was sold a year or so ago for a reported $1.7 million.
The house was still under construction apparently, undergoing extensive renovations. According to the news reports there had been no certificate of occupancy issued, and no one should have been living in the home. The fire department said they had reason to believe there were no working smoke detectors in the home because they believed the fire burned for more than an hour apparently before anyone took notice.
The homeowner, a high-powered advertising executive in New York lost her three small children and her parents; an unspeakable tragedy. However, I can’t help but revert to the thinking of my former employment. If she placed her three children in a home which was not fit for occupancy and which had no working smoke detectors, and she built a fire, and did not make sure it was completely put out, would she be guilty of Connecticut’s version of child abuse? If so, should she be prosecuted?
I was never in the crimes against children unit, but through my career I was occasionally part of these kinds of discussions. What should be the government response when a parent kills their own child unintentionally, but criminally?
The first question, of course, is did the parent break the law. Without examining the Connecticut law, which is different than Colorado’s, I could not really say. So for the sake of discussion I will apply Colorado law.
If no one should have been living in that house, in part because it had no working smoke detectors but did have a working fireplace, and the parent chose to make a fire, and then to dispose of the embers in such a way that fire results, would that, in the words of the Colorado statute, “unreasonably place the child in a situation which created a risk of injury to the child’s life or health?” I am no expert in crimes against children (and, in fact, I tried hard not to handle those cases and if you have seen me around children you know why), but I think there might be a pretty good argument the answer is “yes.”
How many circumstances does it take before the parent has failed to protect their own child? At some point, putting a child into a home without proper safeguards is child abuse. In 2011 it may not be reasonable to let these children sleep in this home, which should have been empty, without standard fire protection, when you plan to build a fire.
In this case, I assume the parent thought it was safe. Was her failure to foresee the risks done with negligence? Criminal negligence in Colorado has a technical legal definition but which can be summarized as the “fucking stupid standard.” Did the person do something which when you look at it you would say “that was fucking stupid.” In other words more than just normally stupid like forgetting where you parked your car or losing a piece of paper with your name, address, phone number, date of birth, and social security number. To be fucking stupid it has to be something where you think, “who would do that?” For example, neglecting to make sure your parachute was loaded properly or leaving your baby in the bathtub while you go on Facebook for an hour.
In this circumstance arguments can be made both ways. Let’s not forget these kids slept on the third floor. There were no fire escapes. Once they knew there was a fire they tried to get out and couldn’t make it. How could they?
Cases like these, though, never can be resolved solely on legal analysis. The question is always asked whether prosecution is appropriate or has the parent “suffered enough.” We confronted this problem many times in my career. Not always parents killing children, people sometimes hurt and kill other family members by accident. A boy kills his brother, or an adult child neglects an elderly parent. Resolving this kind of issue is pure judgment call. Which is exactly the kind of call I never liked to make. I was a technician. I had less problem sizing up the facts and making a call on whether the behavior fit the crime, than I did on the fuzzy determination of whether a crime should or should not be prosecuted.
The “suffered enough” standard was way too difficult for me to apply. First of all, I don’t know how much the defendant has suffered. People always apply their own responses as a gauge to the defendant’s reaction. Of course, anyone who loses their children and parents in one horrendous accident would suffer immensely, I would expect. But I can never really know.
More difficult to me is to decide how much is enough. I am not an arbiter of suffering. Our criminal laws set out different punishments for different behavior so that intentionally killing your child carries an extreme penalty while negligently doing so allows for a much lighter sentence. That is a reflection of punishment fitting the crime. But suffering to fit the crime is a much more difficult standard to apply. Assuming this mother has some criminal liability, would criminal prosecution achieve anything? I don’t know. I can’t know. I would have no desire to send her to prison, necessarily, but I don’t think it is outrageous to institute criminal proceedings, if her conduct (hypothetically because I don’t know the facts) violated the law. For one thing, there is another parent here who lost his children. He is suffering too, should his victimization be ignored? (Of course, we have no idea how he feels about prosecution, and certainly a prosecutor would want to consult with him.)
How about deterrence? Obviously parents are going to be deterred from this kind of behavior for fear of losing their children in a fire, but should the criminal justice system add a layer of deterrence on top? Remember, filing charges is only the first step. I would often say all these “suffer enough” considerations are appropriate for plea negotiations and sentencing, but filing is about whether the law was violated.
I have no idea how to answer these questions. I expect that unless a great deal more was wrong here that no one will be prosecuted. But these types of cases are some of a prosecutor’s most difficult to deal with. I have no doubt this poor mother (and daughter, of course, her parents died too) has suffered extensively and will continue to do so. And I am sure in hindsight she wishes she had followed the law and not allowed her family to stay in that house.
The house was still under construction apparently, undergoing extensive renovations. According to the news reports there had been no certificate of occupancy issued, and no one should have been living in the home. The fire department said they had reason to believe there were no working smoke detectors in the home because they believed the fire burned for more than an hour apparently before anyone took notice.
The homeowner, a high-powered advertising executive in New York lost her three small children and her parents; an unspeakable tragedy. However, I can’t help but revert to the thinking of my former employment. If she placed her three children in a home which was not fit for occupancy and which had no working smoke detectors, and she built a fire, and did not make sure it was completely put out, would she be guilty of Connecticut’s version of child abuse? If so, should she be prosecuted?
I was never in the crimes against children unit, but through my career I was occasionally part of these kinds of discussions. What should be the government response when a parent kills their own child unintentionally, but criminally?
The first question, of course, is did the parent break the law. Without examining the Connecticut law, which is different than Colorado’s, I could not really say. So for the sake of discussion I will apply Colorado law.
If no one should have been living in that house, in part because it had no working smoke detectors but did have a working fireplace, and the parent chose to make a fire, and then to dispose of the embers in such a way that fire results, would that, in the words of the Colorado statute, “unreasonably place the child in a situation which created a risk of injury to the child’s life or health?” I am no expert in crimes against children (and, in fact, I tried hard not to handle those cases and if you have seen me around children you know why), but I think there might be a pretty good argument the answer is “yes.”
How many circumstances does it take before the parent has failed to protect their own child? At some point, putting a child into a home without proper safeguards is child abuse. In 2011 it may not be reasonable to let these children sleep in this home, which should have been empty, without standard fire protection, when you plan to build a fire.
In this case, I assume the parent thought it was safe. Was her failure to foresee the risks done with negligence? Criminal negligence in Colorado has a technical legal definition but which can be summarized as the “fucking stupid standard.” Did the person do something which when you look at it you would say “that was fucking stupid.” In other words more than just normally stupid like forgetting where you parked your car or losing a piece of paper with your name, address, phone number, date of birth, and social security number. To be fucking stupid it has to be something where you think, “who would do that?” For example, neglecting to make sure your parachute was loaded properly or leaving your baby in the bathtub while you go on Facebook for an hour.
In this circumstance arguments can be made both ways. Let’s not forget these kids slept on the third floor. There were no fire escapes. Once they knew there was a fire they tried to get out and couldn’t make it. How could they?
Cases like these, though, never can be resolved solely on legal analysis. The question is always asked whether prosecution is appropriate or has the parent “suffered enough.” We confronted this problem many times in my career. Not always parents killing children, people sometimes hurt and kill other family members by accident. A boy kills his brother, or an adult child neglects an elderly parent. Resolving this kind of issue is pure judgment call. Which is exactly the kind of call I never liked to make. I was a technician. I had less problem sizing up the facts and making a call on whether the behavior fit the crime, than I did on the fuzzy determination of whether a crime should or should not be prosecuted.
The “suffered enough” standard was way too difficult for me to apply. First of all, I don’t know how much the defendant has suffered. People always apply their own responses as a gauge to the defendant’s reaction. Of course, anyone who loses their children and parents in one horrendous accident would suffer immensely, I would expect. But I can never really know.
More difficult to me is to decide how much is enough. I am not an arbiter of suffering. Our criminal laws set out different punishments for different behavior so that intentionally killing your child carries an extreme penalty while negligently doing so allows for a much lighter sentence. That is a reflection of punishment fitting the crime. But suffering to fit the crime is a much more difficult standard to apply. Assuming this mother has some criminal liability, would criminal prosecution achieve anything? I don’t know. I can’t know. I would have no desire to send her to prison, necessarily, but I don’t think it is outrageous to institute criminal proceedings, if her conduct (hypothetically because I don’t know the facts) violated the law. For one thing, there is another parent here who lost his children. He is suffering too, should his victimization be ignored? (Of course, we have no idea how he feels about prosecution, and certainly a prosecutor would want to consult with him.)
How about deterrence? Obviously parents are going to be deterred from this kind of behavior for fear of losing their children in a fire, but should the criminal justice system add a layer of deterrence on top? Remember, filing charges is only the first step. I would often say all these “suffer enough” considerations are appropriate for plea negotiations and sentencing, but filing is about whether the law was violated.
I have no idea how to answer these questions. I expect that unless a great deal more was wrong here that no one will be prosecuted. But these types of cases are some of a prosecutor’s most difficult to deal with. I have no doubt this poor mother (and daughter, of course, her parents died too) has suffered extensively and will continue to do so. And I am sure in hindsight she wishes she had followed the law and not allowed her family to stay in that house.
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