Not That Different

I've been having trouble writing a post this week and I finally realized that it's because this has been on my mind a lot. I guess this is a break from my personal/life/mommy posts, but it hits me right in my heart.

It's big news here in our average city with a small town attitude. MOTHER CHARGED. Prosecutors announced that they will charge a local woman (EJ) with vehicular homicide. EJ's three-month-old daughter sustained traumatic brain injuries when the car EJ was driving hit another vehicle. The child was restrained in an improperly installed rear-facing infant car seat placed on the front seat of EJ's vehicle. The baby died ten months after the accident as a result of her injuries, caused when the front passenger seat air bag employed during impact.

This is the first case of this kind brought in Washington State. The Washington statute states that a driver commits vehicular homicide if he or she 1) drives under the influence of alcohol or drugs OR drives recklessly OR drives without regard for the safety of others; and 2) a person is killed or succumbs to their injuries within three years of a resulting accident.

The Deputy Spokane County Prosecutor says that the death of EJ's daughter "fits the criteria" for the charge under the statute.

If I phrase my reservations in lawyer-speak, trying to be objective, I'd say that homicide without an intent element bothers me on some level. The crime often referred to as murder one or first degree murder requires, as an element of the crime to be proved before conviction, that the accused intended their victim to die. Regardless of the actual facts of the case, for at least a second of time, there has to form in the mind of the accused the intent to kill the victim.

Negligent homicide is far murkier. The intent to kill is absent completely, even the intent to harm disappears. A driver hits and kills a child on a residential street while over the legal limit. That's classic vehicular homicide, the scenario most of us accept as chargeable under vehicular homicide statutes. The intent is to drive while impaired. In Washington, as in most states, that's specifically set forth in the statute as "reckless enough." Most of us accept these homicide charges as deserved.

What about hitting a child on a residential street while talking on a cell phone? The driver is going the legal speed limit, but is at fault. Talking on a cell phone while operating a motor vehicle is illegal in the jurisdiction. Vehicular homicide? Is this "recklessly driving" or "driving without regard for the safety of others?"

How about this one. A mother of three young children is in an accident on a major interstate. She's at fault for failure to keep a safe following distance. Her youngest child, a four-month-old boy, is killed when his head strikes the dashboard on impact. He was in a properly installed infant car seat, but she had neglected to buckle him into the restraints. It is illegal to transport an improperly restrained child in a motor vehicle in the jurisdiction. She and her two properly secured two-year-olds survived. Reckless enough? Vehicular homicide?

What if I told you that mother was me? What if I told you that it was a bright sunny morning and I took my toddlers and four-month-old Quinn to a Jump and Bounce party 45 minutes from our house. The baby sat, properly buckled into his infant seat throughout the activity, but I had to nurse him just before we left. Saige and Garrett got restless and hungry. They threw fits as we tried to leave. Matt called on my cell as I was getting everyone into the car. I properly secured the baby's seat back onto the base, buckled the other two into their seats and drove to Arby's. We ate on the interstate ride home. A truck in front of me slammed on its brakes and, scarfing my sandwich, I almost missed it, but I stopped in time.

When we got home and I unloaded the car, I realized that I had never strapped the baby back into his buckles under his blanket in the car seat. Then I cried, for like an hour.

If I had rear-ended the truck on I-90 and my precious baby boy had died, would I have committed vehicular homicide? Driving recklessly or without regard for the safety of others, resulting in a death within three years of the accident. It "fits the criteria" as the prosecutor stated in EJ's case. Doesn't it? When do carelessness, distractedness, the mistakes that we all make in life, cross over the line into criminal negligence? No one who knows me would ever, I truly believe, think for a second that I could intentionally hurt my son, or even recklessly endanger his life by intentionally leaving him unrestrained while driving. But, is failing to check the buckles reckless? Would a careful parent check every single time?

I'm a lawyer. Of course I can understand that there are levels of negligence and negligent intent. I can understand that at some point, negligence becomes criminal, even murder, but where? Where exactly? It's the job of the system to make the determination, and the people within it. Prosecutorial discretion. Juries. Judges. Appeals. There are protections built into the process. I know that.

If I were in the prosecutor's office, I could probably even make a solid argument for prosecuting this woman, distinguishing her case from mine on facts. The infant seat was improperly installed in the front seat. That might imply a pattern of carelessness rising to reckless if she allowed the child to ride like that for some time. Perhaps her actual driving that day was reckless. Perhaps she was often careless in restraining her children. She did, however, care. Her baby was in an infant seat. Her intent was clearly not to harm her child.

My brain can wrap itself around the possibility that to some, to this prosecutor, her actions feel incredibly reckless, reckless enough to constitute a crime called vehicular homicide.

But my heart. My heart sees the mother of a dead child. A child she killed. Through her own negligence. Not intent. Not murder. Carelessness. Grievous carelessness, perhaps even reckless carelessness. But how many of us can say we've never fallen below that red line? Ever. What accident in the history of the world wasn't the result of some level of carelessness by someone?

Are we are judging criminal intent here, or are we once again judging parenting, holding it up against some shiny example of perfection that doesn't allow for human error?

I'm not sure I understand the goal in charging this mother with homicide. Is it because she deserves to be punished and the child's life should be avenged? Certainly, that baby can't speak for herself, and the State has a role, but I can't imagine a worse punishment than the one this woman is already enduring. It's a life sentence. Is it deterrence? Do we want to make a point to other parents? To tell them that society is serious about the car seat laws and that failure to obey them is punishable in this way? Because, honestly, I'm deterred. You had me at "her baby died of traumatic head injuries."

I've heard many arguments on the other side of this case. Many people believe that putting such a small child in the front seat of a car without disengaging the airbag is outrageously reckless. That no parent could fail to know how dangerous this is. Unforgivable. Beyond sympathy or empathy. Criminal.

I see that. I still feel...sympathy and empathy.

In the end, my objection is simple and it's not objective or based on rational legal arguments. It's just this. I can see the difference between myself and someone with criminal intent. Intent to kill. Intent to rob. Intent to harm. Intent to drive while impaired. My finger pulling the trigger. My hand striking the blow. My drunk ass getting in a car.

All I really see between myself and this woman, this mother of a dead child charged with murder, is luck. And I have to wonder if that's enough.

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So what do you think? Truly. I'm open to both sides of the argument. Just remember, there are two sides. True discussion requires respect for that fact.