Denver Post Misleading On Child Abuse Sentencing

A Denver Post story today on the sentences and prosecution practices found in child abuse and neglect cases notes that, on average, the sentences for these offenses and treatment of offenders in these cases is more lenient than it is for other felonies of the same grade (class 2 and class 3 felonies respectively).

The story fails to see the forest for the trees in this area of Colorado's criminal justice system, and gets the bottom line on this important issue in Colorado almost completely backward.

The Denver Post Is Not Making Apples To Apples Comparisons.

What the story completely neglects to mention, is that the sentences in child abuse and neglect cases in Colorado are more severe than they would have been if the same offense had been committed against anyone other than a dependent child.

* The class 2 felony "Child abuse resulting in death", CRS 18-6-401(7)(I), is the same crime as the class 4 felony of manslaughter, CRS 18-3-104, had it been committed against anyone other than a child (and generally speaking the offense is only applied to children who are in the care of the offender).

For example, if your reckless conduct causes the death of a child in your care, you are guilty of a class 2 child abuse felony (for which the average sentence is 29.9 years in Coloraod according to the Denver Post). If your reckless conduct caused the death of anyone else, you would be guilty of a class 4 manslaughter felony with an enhahnced sentence punishable by four to twelve years in prison.

The sentence actually imposed is about four times longer (about 22 years longer) than it would be for a case not involving a child.

* The class 3 felony "Child abuse negligently causing death", CRS 18-6-401(7)(a)(II), is the same crime as the class 5 felony of negligent homicide, CRS 18-3-105, had it been committed against anyone other than a child (and generally speaking the offense is only applied to children who are in the care of the offender).

For example, if you drive a car in a criminally negligent manner causing the death of your child who is a passenger, and also an adult stranger in another car, you are guilty of a class 3 child abuse felony (for which the average sentence is 13.6 years in Colorado according to the Denver Post), and you are also guilty of a class 5 negligent homicide felony with an enhanced sentence, which is punishable by eighteen months to six years years in prison.

The sentence actually imposed is about four times longer (about ten years longer) than it would be for a case not involving a child.

Even if you accept the legislature's judgment that a death from child abuse should be punished more severely than the homicide of a stranger involving comparable levels of intent, it does not follow that the additional punishment should be four times as long.

By way of comparison, in Colorado, a similar sentencing enhancement (three time the maximum sentence for the offense of conviction) is applied to offenders with two separate prior felony convictions within the last ten years. CRS 18-1.3-801(1.5). A four fold maximum sentence requires four prior felony convictions (but without within the last ten years limitation). CRS 18-1.3-801(2).

Is it really appropriate to enhance the sentence of a first time child abuse causing death offender by the same amount by which we enhance the sentence of someone with three or four prior felony convictions who has been convicted of a new felony?

The fact that judges and prosecutors exercise some very modest leniency in these cases, as demonstrated by the Denver Post's analysis, is entirely appropriate and reflects the widespread understanding of those who are involved in Colorado's criminal justice system, that Colorado's statutes punish child abuse much more severely than other crimes of comparable culpability in the state.

It is also important to recognize that a significant subset of child abuse causing death cases in the state involve prosecutions of seriously troubled young women who give birth alone, for example, in public bathroooms at a prom, who caused the death of their just born infant (often premature) while in the throes of having just given birth after having struggled with even acknowledging that they were pregnant.  Our society in not better off when these women are locked away in prison for fourteen to thirty years.  Leniency in cases like these alone is enough to reduce the average punishments metted out for child abuse offenses.

Losing A Child (And Other Children) Is A Punishment For Most Child Abuse Offenders

When you recklessly or negligently kill a stranger, the stranger's death, per se, usually isn't something that personally causes the offender to suffer (other than facing criminal punmishments and some generalized guilt).

Most child abuse causing death offenders are parents or guardians of a child who due to reckless or negligent conduct cause the death of their own child.

While there are some offenders who intentionally cause the death of their own child and don't regret having done so (who could have been punished for first or second degree murder in any case), the vast majority of child abuse offenders did care about and love their child, even though they did something seriously wrong that caused that child's death.

Losing a beloved child, even if it is a result of your own personal failings and is your fault, is a devistating loss to most child abuse causing death offenders. So, considering that point, some leniency relevant to someone who committed the same offense towards a stranger is justified.

Also, a conviction for child abuse causing death almost always results in the parent or guardian losing not only the child killed, but also having the parent-child relationship with any other children they have terminated.  This is another severe punishment for most child abuse offenders in addition to any criminal sentence imposed.

Reserving the harshest punishments for people who knowingly cause the deaths of their children (rather than merely recklessly do so), whom we may presume really haven't suffered as much from the death of their child, just as we do in the case of people who kill strangers (this is second degree murder, a class two felony) would be more appropriate.

Children Are Fragile

Many inexperienced, overwhelmed, low income parents (and this group of parents makes up a disproportionate share of child abuse causing death defendants), have not yet learned that children are more fragile than adults, and learn the hard way from the incident that caused the death.

While a child abuse causing death offender's conduct may have been reckless or negligent, it was also conduct that would often not have been fatal to an adult and that they didn't fully comprehend would be more harmful to a child. Thus, while it is often culpable and deserving of criminal punishment, on average, child abuse causing death cases often involve conduct that is less extreme and less culpable than manslaughter or negligent homicide cases.

Equally important, a far larger share of cases of child abuse causing death are cases where the question, "did the offenders conduct cause the death of the child?" is more seriously in doubt than it is in ordinary homicide cases. Given the inevitable reality that juries will sometimes make mistakes on the issue of causation, a less extreme sentence than one used in situations where the cause of death is not in the least in doubt in the typical case, is appropriate.  It is not uncommon for new medical analysis years later to determine that the death of a child for which a parent was sentenced to a long sentence of incarceration was not in fact caused by abuse as a jury concluded based on often sincere by inaccurate in hindsight expert testimony at trial.

Most Child Abuse Offenders Are Not A Great Threat To The General Public

The empirical research on criminal sentencing laws also demonstrate that even very harsh sentences for convicted offenders have minimal marginal impact in discouraging people from committing offenses in the first place. Almost all of the crime reduction benefits associated with long criminal sentences comes from immobilizing people who are at high risk of committing future crimes. Swift and reliable punishments of modest severity are far more effective at discouraging people from committing future crimes than delayed and uncertain punishments of much greater severity.

The main purpose of long sentences of imprisonment is not so much to punish the offender as it is to protect the general public from keeping the individual from horrifically reoffending and thus causing further harm.

Someone who recklessly causes the death of their own child is very often not nearly so great a threat to members of the general public as someone who knowingly kills a stranger, yet in Colorado, both offenses are class 2 felonies.

Likewise, someone who negligently causes the death of their own child is very often not nearly so great a threat to members of the general public as someone who knowningly causes seriously bodily injury to another or carries out an aggravated rape, which are also class 3 felonies.

These offenders may pose an extraordinary risk to other children in their care, if they are released.  But, there are far less costly ways of addressing this, such as a lifetime parole requirement barring child abuse causing death offenders from having children in their care that is regularly audited by state officials.

The Cost Of Incarceration Is Better Spent Elsewhere

An extra ten years in prison for a negligent child abuse causing death offender relative to a negligent homicide offender, costs the State of Colorado something on the order of $300,000. It also deprives that person and their family (quite possibly siblings or a parent of the child who died) of ten years of financial support from that person's earnings and deprives the government of ten years of taxes that the offender would have paid.

In the case of a child abuse causing death case where the offender is reckless rather than merely criminally negligent, the additional cost to the state is twice as great.

As other stories in the Denver Post series have made clear, many of the overlooked cases of child abuse that are reported and ultimately cause death in Colorado arise from a lack of funding for child protective services resources. Diverting money from longer sentences for convicted child abuse causing death offenders to child protective services funding would make a difference.

The amount of money saved by having sentencing in child abuse cases comparable to the sentences that would apply in the absence of Colorado's child abuse statute, could easily prevent at least one and often more than one additional child abuse death if spent on prevention rather than punishment. The incredible waste arising from Colorado's harsh statute makes children less safe, not more safe.

Bottom Line: Colorado's Child Abuse Sentences Are A Case Of Legislative Hysteria

In short, Colorado's legislators, seeking to look like they were taking tough action on an important and emotional social issue, child abuse, enacted laws that impose grossly disproportionate sentences for child abuse offenses relative to comparably culpable crimes committed against strangers.

The Denver Post article, by screaming out a headline that makes it look like Colorado is punishing these offenders leniently, when in fact, it is punishing them extremely harshly, irresponsibly undermines efforts to make rational reforms of these laws that currently wreck lives and fail to take the kind of constuctive actions that could really help address this serious social problem.