Charges Avoided, Law Still Wrong

I have said before, and continue to believe, that neo-natal death caused by the action or inaction of a mother in the throes of child birth should not constitute first degree murder. This charge is authorized by Section 18-3-102(1)(f) of the Colorado Revised Statutes, added by the legislature in 1995.

An eighteen year old Western State College woman had those charges against her dropped for lack of evidence today, because it could not be determined if certainty if a child was born alive, or was stillborn, leaving the woman facing only the first degree misdemeanor charge of concealing a death. But, these cases simply do not carry the same degree of culpability of other first degree murder offenses.

Neither the death penalty, nor life in prison without parole, the two permissible sentences in a first degree murder case, are appropriate for these mothers. In contrast, other offenses which qualify as first degree murder are: premeditated murder; murder as part of arson, robbery, burglary, kidnapping and aggravated rape; causing an execution through perjury; murder involved depraved indifference to human life; and deaths caused an overdose on illegal drugs sold to a minor.

Neo-natal homicide by a mother who has just been through child birth (almost always alone and outside a hospital) doesn't compare in culpability. Distressed isolated mothers are not in the same league as people who either set out with a plan to kill, or set out with a plan to engage in another course of action which is already a serious felony.

Manslaughter, a class 4 felony that applies to homicides caused recklessly, or criminally negligent homicide, a class 5 felony that applies to homicides caused with criminal negligence (usually considered a higher standard of negligence than that applied in civil cases), would be more appropriate, given the highly aggitated state that a woman is in at this point. This should also not be classified as a crime of violence, a classification ordinarily used for offenses that represent a great risk of violent harm to members of the general public.

The normal punishment for a class four felony that is not a crime of violence is two to six years in prison, with three years mandatory parole. The normal punishment for a class five felony that is not a crime of violence is one to three years in prison with two years of mandatory parole. Neither is a slap on the risk and each leaves the individual convicted with a felony conviction.

Anyone who has not just gone through child birth ought to face a homicide offense of second degree murder, manslaughter or criminally negligent homicide, that reflects their personal degree of culpability (knowing, reckless or negligent), but should also not face first degree murder charges, which should be reserves for hardened criminals and extremely culpable crimes, not for parents or guardians who lose control when dealing with their children or wards. Parents who go too far are not so unredeemably horrible that society needs them to never walk free again.

I am also not suggesting that infanticide should be legal. Indeed, I am suggesting that it be a serious homicide felony. But, I do not believe that a mother who has just been through child birth is capable of forming the degree of criminal intent that we normally ascribe to second degree murder defendants.