Gwinnett baby hot car death was a horrible tragedy but not a crime

Every year, reports emerge of a parent who has accidentally left a child in a hot car.

The public reaction is almost always the same: outrage, disbelief and demands that the parent be prosecuted for homicide.

Tragedy struck again here in Georgia recently when, according to police, 29-year-old Deja Coleman dropped off her two older children at daycare, drove to work at Northside Hospital Gwinnett, and – fatally – forgot that her baby remained asleep in the back seat.

She learned of her son’s death only when police came to her workplace. She has since been charged with second-degree murder and cruelty to children.

The facts are heartbreaking. They also present a profoundly difficult question: Should a parent who forgets a child in a hot car be prosecuted for homicide?

Not every harm caused by a person is a crime

Russell Covey is a professor at Georgia State University College of Law. (Courtesy)

As a law professor, I pose that question to my criminal law students every year. Like much of the public, many instinctively answer yes. A child has died. A parent caused that death. Surely someone must be held criminally responsible.

My response often surprises them.

The criminal law exists to punish culpable choices, not catastrophic failures of memory.

That principle is easy to lose sight of when the consequences are so devastating. But criminal law has never operated on that simple equation. Not every harm caused by a person is a crime. In our increasingly punitive culture, we sometimes forget that.

We also forget something else: People forget.

People forget things every day. Not just trivial things, but enormously important ones. Years ago, when airlines still issued paper tickets, I once forgot mine and missed a flight.

As a law professor, I pose that question to my criminal law students every year. Like much of the public, many instinctively answer yes. A child has died. A parent caused that death. Surely someone must be held criminally responsible.

My response often surprises them.

The criminal law exists to punish culpable choices, not catastrophic failures of memory.

That principle is easy to lose sight of when the consequences are so devastating. But criminal law has never operated on that simple equation. Not every harm caused by a person is a crime. In our increasingly punitive culture, we sometimes forget that.

We also forget something else: People forget.

People forget things every day. Not just trivial things, but enormously important ones. Years ago, when airlines still issued paper tickets, I once forgot mine and missed a flight.

People forget medical appointments (yes, I’ve done that too), medications, anniversaries or to pick up a child from school. Human memory is surprisingly fragile. Stress, exhaustion, interruptions and changes in routine can produce astonishing lapses even in conscientious people.

Sometimes those lapses cause enormous harm. Someone forgets to turn off the oven and starts a fire. Someone forgets to stop the bathtub faucet and floods a house.

Someone leaves the keys in the ignition, and the car is stolen. We ordinarily recognize these events for what they are: accidents. Terrible accidents, perhaps, but accidents nonetheless.

Forgetfulness is not a decision. It’s a failure of human memory.

Criminal law traditionally requires something more than causing harm. It requires mens rea – a guilty mind. The law generally punishes intentional wrongdoing, knowing wrongdoing, or conscious risk-taking on the theory that such conduct is blameworthy and can be deterred by the threat of punishment.

Hot car cases, which involve pure forgetfulness, don’t fit easily into that mold. Can criminal law really deter forgetting? People do not consciously choose to forget important facts.

No parent says to herself, “Today I will forget my child is in the back seat.” Punishment may deter deliberate risk-taking, but it is hard to see how it deters a cognitive failure that no one intends and no one welcomes.

Forgetfulness is not a decision. It is not even a risk someone consciously accepts. It is a failure of human memory, and one that is hard to square even with the traditional concept of criminal negligence.

Negligence ordinarily involves someone who knows the facts that create a substantial risk but is unaware of the risk itself. The speeding driver knows he is speeding but believes he can safely control the car. The gun owner knows he has left his firearms unsecured but never thinks that children might gain access to them.

The parent who forgets a child in the back seat is fundamentally different. At the critical moment, she is unaware of the very fact that creates the danger. She is operating under the sincere, but tragically mistaken, belief that the back seat is empty. The risk exists only because memory has failed.

That is why these heartbreaking cases are better understood as tragic accidents than criminal homicides.

According to the National Safety Council, more than 1,000 children have died in hot cars since 1998. This year’s Gwinnett County case was the 17th nationwide. Those numbers should compel us to improve technology, educate parents, and encourage automakers to design systems that make these tragedies less likely.

They should not tempt us to redefine tragedy as murder.

Not every terrible harm caused by a person is a crime. In an era that increasingly looks to the criminal justice system to solve every social problem, that is a principle worth defending.

For most parents, the death of a child is the deepest grief imaginable. To know that one’s own mistake, even an unintended failure of memory, caused that death is a sentence that no court could ever impose and no term of prison could ever match. Parents in these cases will replay that morning for the rest of their lives, wondering how their minds betrayed them and wishing for one more chance to bring their child inside.

The criminal law cannot restore the child. It cannot meaningfully deter a catastrophic lapse of memory. But it can deprive husbands and wives of their spouses and surviving children of their caretakers.

When a loving mother or father accidentally leaves a child in a hot car, with no awareness that the child remains in the vehicle, prosecuting that parent for homicide does not achieve justice. It mistakes an unspeakable accident for a culpable choice — and in doing so, pours acid on an open wound.