June 9, 2002 Sunday

HEADLINE: A Tragedy, Not a Crime

BODY:

By all accounts, Kevin Kelly is a loving father who works hard to support his large family in Manassas. The father of 13 children, Kelly was doing sole duty last week when his youngest, a 19-month-old girl, was accidentally left in the family van. She later died.

When most families would be attempting to cope with such a horrific loss, the Kelly family was hit this week with another unimaginable blow. Commonwealth Attorney Paul B. Ebert has announced that he intends to charge Kelly with involuntary manslaughter, a charge that could send him to prison for 15 years. Ebert stated that he wanted to send a message to all parents. Indeed he did. Kelly’s prosecution sends a chilling message of prosecutorial over-reach and abuse. Unfortunately, it is not unique. Increasingly, prosecutors appear to be expressing their outrage over parental negligence through criminal charges, leaving terrible consequences in their wake.

The disaster that struck the family occurred last week when Kelly was watching the children while his wife and one daughter were taking a vacation in Ireland. When the family returned home in their 15-seat van, Kelly enlisted his oldest teenagers to help get all 12 kids into the house. One of the teenagers removed the family’s 3-year-old daughter but forgot the youngest in the van. Kelly assumed that everyone was in the house as he did chores and got pizza for dinner (in another family car). Seven hours later, the child was found dead in the closed van.

This was not the first time that Kelly has lost track of one of his kids. Previously, he left one of his sons at a video store and did not realize that the boy was missing until the store contacted him hours later. But no one has suggested that Kelly knowingly left his daughter in the van, and both parents are described as deeply religious and supportive. This is a case of negligence but not a crime. Criminal cases have long been confined to parents who knowingly put their children at obvious risk, physically abused their children, engaged in drug or criminal activities or showed a history of child neglect.

Ebert does not allege such criminal elements. Nevertheless, Ebert insists that “this case is bigger than Mr. Kelly.” Ebert says that a prosecution of the father is necessary so that “other people will get the message that gross negligence . . . is something that can be prosecuted.” To that end, Ebert stated that he has not decided whether to also criminally charge the teenage daughter as part of his “family learning through prosecution” policy.

Criminal justice is generally based on one of two objectives: retribution or deterrence. Neither objective will be achieved by prosecuting this grieving father. In terms of retribution, no penalty can possibly extract the costs of losing a child due to personal negligence. As for deterrence, Ebert’s belief that prosecution will “send a message” is bizarre. Ebert’s lingering threat is not going to cause parents to be more attentive or less forgetful. You send a message to criminals who act deliberately. Parents are not going to begin to put fail-safe protections into effect because, in addition to losing the most valuable thing in their lives, they risk being served with Ebert’s own brand of punishment.

Ebert is not the first prosecutor to use criminal law to punish parental negligence. In 2000, Paul Wayment was charged criminally after he left his sleeping son in his truck while he hunted. The boy wandered away and was later found dead in the forest. Even the prosecutors admitted that Wayment was not simply a good father but a father totally engrossed in his son. He took his son everywhere and was devastated by the loss. The prosecutors decided to charge but specifically asked the judge not to send the man to jail. However, Utah’s Judge Robert Hilder decided that he had not suffered enough. Hilder told Wayment that he would be sent to jail to consider what he had done. Wayment left the court, went to the spot in the mountains where his son was found and committed suicide. I remain convinced that it was not the prospect of jail but the suggestion that he lacked remorse that proved too much for him. Neither a judge nor a prosecutor was needed to get Wayment to consider what he had done. It would be the defining moment of his life, an agony that only a parent can appreciate. Wayment was certainly guilty of a thoughtless, if not moronic, act in leaving that child in his truck. However, in doing so, he imposed a sentence on himself that was absolute and unappealable.

Our society seems incapable of expressing its most fundamental values without a criminal charge. Prosecution has become a type of exclamation point for social judgments. However, in the Wayment and the Kelly cases, such prosecutions only victimize the grieving to satisfy the vengeful. It is the prosecutorial version of ambulance chasing. Faced with a high-profile death, prosecutors yield to a temptation to express their own views of the parental negligence, as if such a view was in doubt or needed.

Ebert clearly believes that if he hoists a wretch, he can improve child care in Virginia. There is something to this logic that reminds one of the Vietnam War technique of destroying a village to save it. Here, the state will respond to the tragic loss of this child by destroying the family. It will first drain what little funds are available to this large family and then, if successful, it will send the family’s only breadwinner to jail. Ebert insists that “this is bigger than Mr. Kelly.” Not to his family, Mr. Ebert. Before the state victimizes this family in our name, the public needs to send its own message to those who cannot distinguish between true justice and gratuitous punishment.