Jailing Parents After Tragedy Tough Call
FW baby's death in hot car illumniates divide: Prosecute or not?
By Curtis Howell for The Dallas Morning News
Originally published in The Dallas Morning News, July 11, 2002
A child dies alone in a hot, closed car. Is a forgetful parent a criminal, or another victim of a horribly tragic lapse?
On cases like that of the Fort Worth woman whose 9–month–old son died in a closed car Tuesday, the nation's legal community is divided.
Many prosecutors say parents should be held accountable for what they call inexcusable negligence. Let juries decide, they say.
Other legal scholars say society gains nothing by punishing parents who clearly didn't mean for their children to die and who pose no threat to society.
What is clear, prosecutors say, is that these cases are among the most difficult in determining whether prosecution serves the interest of justice.
"Good prosecutors have to weigh the need to hold them responsible when they have already suffered the most difficult loss, the loss of a child," said James Backstrom, a Minnesota prosecutor and former vice president of the National District Attorneys' Association. "There has to be some level of accountability, but it's a very difficult situation to deal with —probably the most difficult."
Police said a warrant would be issued Thursday for Jessica Estrada Rueda, whose 9–month–old died Tuesday in a hot car. In Fort Worth, police said a warrant would be issued Thursday for the arrest of Jessica Estrada Rueda, 27, charging her with criminally negligent homicide in the death of 9–month–old Lorenzo Rueda.
Ms. Rueda, who was questioned at length by police, said she thought she had left the child at day care but later discovered him dead in the car when she went to lunch.
Four area cases last year—each handled differently—demonstrate the difficulty that prosecutors say they face.
In two of those cases, children died after climbing into parked cars, and no charges were filed. In a third case, Dallas County grand jurors declined to indict a mother charged with reckless injury to a child after leaving her child in a hot car while she worked.
In the fourth case, a Dallas couple who left their toddler son in a closed car was indicted. They are awaiting trial on charges of reckless injury to a child.
Every case different
David Montague, senior staff attorney with the Tarrant County district attorney's office, said he could not comment on Tuesday's death. But in deciding whether to file charges in such a case, he said, several factors have to be considered, and there is no set list that covers every situation.
"You have to look at the relationship. Was it a parent? A baby sitter? Why was the child left in the car?" he said. "Did they know [they were leaving a child in the car] and went to do something else? Or was it just forgetting, which is a little hard to understand."
A child crawling into a car while the parents were distracted could be just a tragic accident, he said. But if there is a history of abuse or neglect, it could be a different matter.
"It's like going down the highway with a kid not buckled up, and he is thrown into the windshield and dies. How was the parent driving? What were they doing? When does it become criminal? It is a different situation," Mr. Montague said, "but it raises the same questions. It's always tough with kids and families."
While acknowledging that many cases "shock the conscience," law professor Jonathan Turley said few should be treated as crimes.
"Sometimes justice requires an element of restraint in expressing its anger over the behavior of a parent," he said. "Criminal prosecution becomes a form of social judgment—a way to express social outrage. I think the best prosecutors resist the temptation to use prosecution as a form of social condemnation.
When it's negligence
Collin County First Assistant District Attorney Bill Schultz, however, said it is a rare instance when it makes sense that someone leaves a child in a car. Often, he said, the negligence is so obvious that it overshadows intent.
"The DWI didn't mean to get drunk and kill a family, but in this society we are warned again and again, there are all kinds of things you know you don't do," he said. "I don't think anyone has the right to endanger a child.
"You have a choice; children don't."
Diana Beckham, senior staff council for the Texas District and County Attorneys Association, agreed.
"The risk you run if you don't prosecute is you are taking that decision out of the hands of the community. The good in prosecution is you are going to let a jury decide," she said.
Charges in Texas can range from a fine–only misdemeanor of leaving a child in a vehicle, through several levels of felonies with sentences ranging from six months to 99 years.
Victor Vieth, a former prosecutor and now director of the National Center for Prosecution of Child Abuse in Alexandria, Va., said that though authorities have discretion in whether to file charges in such cases, there are big differences in how the cases are viewed by most Americans.
He points to a pending case in nearby Manassas, Va., where a father has been charged with manslaughter because a toddler died after being left in the family van for seven hours.
"In seven hours, that child should have been fed, had a diaper changed; those factors point to gross negligence," he said, yet the community was outraged when the charges were filed.
"Go to a coffee shop and ask 10 people what should be done when someone leaves a dog in a hot car and it dies. Nine of them will say prosecute. But if it's a child, they'll be evenly split," Mr. Vieth said. "I think there is a good chunk of this country that is more protective of dogs than kids."
Some of that may be because people believe it could happen to them.
"Absolutely," Mr. Vieth said, "people know that their kids have slipped away or that they have lost their temper and know how irritating a child can be. They say, 'What if I left a child for 30 minutes and something happened? What if it happened to me?'"
Common sense
But when a child dies in a hot car, he said, people have to use common sense: "Not many people in the world are going to leave a child in a car for hours."
But it does happen—more than 180 times nationwide since 1995, said Anara Guard, information director at Boston University School of Public Health.
Ms. Guard is preparing to publish statistics that she said she began gathering five years ago because no one was keeping track of children dying in closed cars.
About a third of the cases involve toddlers who get in an unlocked car and can't get out, she said.
"People have to treat their cars like swimming pools," she said. "Lock the doors."
In the rest, an adult was responsible.
But that doesn't necessarily make them criminals, said Mr. Turley, a law professor at George Washington University in Washington, D.C.
"The core of criminal law is that acts are done with intent. Negligence has been confined to the civil docket," he said. "Allowing prosecutors to pursue acts of negligence radically increases their power and their ability to abuse it."
He does not disagree in cases where there has been a pattern of abuse or negligence and where the state has been involved, but a memory lapse is another matter.
The problem with the man in Virginia whose child died in the van, Mr. Turley said, was that he had 13 children, his wife was in Ireland, and he had to depend on his teenage daughters as baby sitters.
"To prosecute him will completely destroy that family. It will drain their finances, and possibly put the only breadwinner in jail," he said. "There is no punishment the state can mete out that comes close to loss of a child by a loving parent."
