13 May 2009

Overkill In Denver Child Abuse Case?

A Denver father has been charged with child abuse resulting in death after his 7-month old son drowned in a bathtub.

Thomas Ashley, 48, answered the phone and took out the trash while his son, Isaac, was unattended in the bath on April 28, prosecutors said today.

From the Denver Post.

In cases where a death results, Colorado's criminal punishments are as follows:

With criminally negligent intent: Stranger: 1-3 years in prison. Parent of juvenile: 8-24 years in prison.

With recklessness: Stranger: 2-6 years in prison. Parent of juvenile: 16-48 years in prison.

Leaving your infant son in a bathtub while attending to household chores is surely negligent. Perhaps it is even criminal negligence, or reckless. But, the criminal penalty in Colorado is overkill for the offense -- from which a parent or caretaker will typically already feel horrible guilt and loss, even in the absence of any criminal punishment.

Punishments For Comparable Crimes

Let's review.

In the case of an adult stranger (where guilt and grief would typically be less than in the case of the unintentional loss of one's own child for whom one is caring), criminally negligent homicide is a class 5 felony (punishable by one to three years in prison), and reckless homicide is a class 4 felony (punishable by two to six years in prison).

In contrast, in Colorado, child abuse resulting in death that is criminally negligent is a class 3 felony punishable by eight to twenty-four years in prison, while child abuse resulting in death that is reckless is a class 2 felony punishable by sixteen to forty-eight years in prison. Abuse is defined under the child abuse resulting in death statute to include what ordinary language would call neglect or even mere negligence, rather than active abusive conduct.

Colorado also has a crime that is a class 1 felony punishable by death or life imprisonment, but that must involve a knowing killing of a child under twelve by a person in a position of trust.

Loss of parental rights to other children, restraining orders, and civil suits by other next of kin of a child are also available as non-criminal remedies in these cases under current law.

Other Crimes With Similar Punishments

Parents who don't tend their children with awful consequences have done something wrong. Some criminal punishment may seem appropriate even to them. But, this is offense is not nearly as culpable as other class 2 or class 3 felonies that are crimes of violence and hence carry the same punishments.

Class 2 felonies that are crimes of violence include murder committed knowingly and not in the heat of passion; kidnapping with an intent to collect ransom or other concessions; kidnapping in connection with a rape or robbery; forcible gang rape; rape causing seriously bodily injury; rape committed with a deadly weapon.

Class 3 felonies that are crimes of violence include murder committed knowingly but in the heat of passion; assault causing serious bodily injury or committed with a deadly weapon in the course of another serious felony; assault with intent to do serious bodily injury or disfigurement that does so; extortion with weapons or weapons of mass destruction; armed kidnapping; forcible rape; forcible child molestation; arson; armed burglary; and armed robbery.


The criminal justice system legitimately imposes serious punishments for serious crimes, but punishments should be proportionate to the culpability of the crime committed. All other crimes punished with the sentences applicable to child abuse causing death are knowing or intentional crimes typically committed by hardened criminals, usually with weapons, not acts of omission, involving no weapon or active abuse attributable to poor parenting.

Protecting The Public

Poor parents are also rarely a threat to the general public, which is the main reason that people need to be kept in prison for long periods of time for committing serious crimes. It may be appropriate in many case of parental neglect of their children to terminate their parental rights with respect to all of their children, or with their children until they reach an age where they can protect themselves better. It may also be appropriate in these cases to impose an extended period of probation in which no caretaking for any children is permitted. And, relatively short prison terms may make sense so that the gravity of the harm is recognized and punished.

Public Expense

Long imprisonment of these parents is a gross waste of public funds and a waste of the defendant's potential to contribute to society productively. In pure dollars and cents, it costs the State of Colorado about $150,000 of corrections costs and well over $15,000 of lost tax revenue, plus a significant sum for welfare and other social services for dependents of defendants, to imprison someone for eight years (the minimum for child abuse resulting in death from criminal negligence) as opposed to three years (the maximum for criminally negligent homicide). Even accounting for good time that reduces the sentences involved, this law costs the public something in excess of $100,000 per convinction to treat parents more harshly than people who negligently kill strangers. This also omits the harm caused by loss of livelihood and years of additional socialization with hardened criminals turning previously law abiding people into criminals that long prison sentences can cause. The costs to the state of Colorado associated with mid-range sentences for each offense is even greater.

There are currently about 400 people serving prison sentences in Colorado for some form of child abuse, although I don't have an exact breakout of these cases by sub-offense easily at hand.

No one needs to be reminded that Colorado's prison populations are soaring, mostly due to changes in statutory criminal sentences like the child abuse resulting in death statute, while the state's budget is strapped.

The Prosecutor's Case For Tough Statutory Punishments

I understand perfectly well why prosecutors bring the most serious criminal charge plausibly available to them in every case. At worst, from their perspective, the pre-trial and trial process will produce a conviction on a lesser charge, and more often, the defendant will plea bargain to avoid such severe penalties, avoiding the expense and uncertainty of a trial. But, the fact that an approach makes tactical sense for prosecutors doesn't mean that it is a good law. The law should not unduly pressure people who aren't guilty of an offense to waive their constitutional rights to due process in order to plea guilty to committing something.

Prosecutors also have to bear considerable responsibility for bringing charges that produce long sentences when less serious charges would have been sufficient. And, those who are most cooperative to law enforcement are most prone to receiving the longest sentences, as the cases against them are easiest to prove, and hence provide the least room for plea bargaining.

History has shown, as this case does, that prosecutors will not exercise discretion in some cases, and abuse of prosecutorial discretion is essentially beyond any form of judicial review (other than the Governor's very rarely used clemency power). When sentences for crimes are lengthened prosecutors in Colorado have sought and obtained them.


The easiest way to reform the law would be to simply treat deaths from child abuse or neglect like any other murder. This already removes common law privileges that remove any criminal or civil liability for harm to one's own family members, but does not punish harms to family members more seriously than similarly culpable harms to members of the general public.

No comments: