Megan McArdle, the quondam "Jane Galt" of Asymmetrical Information, writes of a particularly hand and heart-wringing case:
Justin Peters, who runs Slate's crime blog, has been on a crusade against people who leave guns where kids can find them. I am all for promoting gun safety, but Peters takes it a bit farther: he wants family members punished if their kids get their hands on a gun and shoot someone. Even he, however, is taken aback at the news that Louisiana is preparing to try a woman for murder because her child found a gun and shot herself.I’m glad Smith is being held accountable for her daughter’s death. Parents who allow guns into their homes need to bear responsibility for what their children do with those guns. While initial reports made it seem like the gun belonged to Smith, it now appears that the gun may have belonged to a family friend who was temporarily storing it at Smith’s house. Either way, it doesn’t matter. Smith allowed the gun into her house. She’s responsible for what happened with it.But “bearing responsibility” doesn’t mean “lock her up and throw away the key.”
Here I must disagree. I don't see that any purpose is served by punishing this woman. She has already had the worst possible thing happen to her. In what sense can the government "hold her accountable" in any way that is not dwarfed by her own conscience, and memory?
When it comes to punishment, we should embrace a concept that has gotten lost in American justice in recent decades: enough. Punishment should be enough to deter, to punish, and in the case of incorrigibles, to rehabilitate. But beyond that point, there's no reason to lard on extra damage. Overpunishment is both costly and cruel.
A bad thing has happened: someone died. It was brought about by negligence rather than either premeditation or momentary intent. What shall we do?
Not many folks would shrug and say "Nothing." Surely "we" (whoever that is) would prefer that such things never happen. One traditional approach to events we'd prefer not to happen is deterrence through punishment. Yet in this case, the "perpetrator" is dead and the "accessory" has already suffered a huge, reaving loss. What now?
Quite a three-pipe problem, Watson.
If we continue to view such an occurrence through a crime-and-punishment paradigm, the most relevant bit of high law would be the Eighth Amendment to the Constitution:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
This first attempt at circumscribing penal injustice was somewhat less than specific. Yet its use of the words excessive and cruel and unusual marked a striking departure from European practice, wherein punishments for an offense were essentially unbounded.
The idea, albeit dimly grasped even then, is that there is a binding relationship between a crime and the just punishment.
Megan says "Punishment should be enough to deter, to punish," which is an inexact standard. We measure deterrence in highly subjective ways; this is as it must be, because future offenders are, well, in the future and uncounted at the time of sentencing. As for "punishment," there is no inherent metric for how much suffering or loss of rights an offender "should" incur for his deed. Men are not gods; courts of law cannot appeal to the Father for His opinion.
Wait: perhaps there is a standard we can apply. Perhaps the amount of damage done by the offender should be used as our measuring stick for punishment. That's fairly easy to apply to crimes of property: the fine shall be the amount stolen or destroyed, plus a penal percentage -- no greater than 100% -- for deterrence. What about crimes of violence?
Willful homicide's the easiest case: the death penalty. But what about manslaughter? What about assault and battery? What about rape? Is it possible to have "the punishment fit the crime" in some measurable way in those cases?
As for our distraught mother, whose negligence made it possible for her child to kill herself, crimes of this sort are the toughest cases of all... if, that is, we insist upon calling them crimes.
The very concept of justice implies a standard of exactitude. We might differ on what that is, but we must agree that whatever it is, to the extent the penalty imposed for a deed fails to meet that standard, it will fail to be just. This is admittedly clearer in matters where only property is involved rather than life, limb, or nonmaterial prerogatives, but nevertheless it is so in all cases.
There can be no question that Mrs. Smith was the "enabler" to her daughter's fatal misadventure. She bears at least some responsibility for the consequences. But it remains debatable whether any amount of punishment is appropriate, whether in the name of justice or in the interests of deterrence.
I'm torn on this. I can't imagine what it would feel like to lose a beloved child in such a fashion. Neither can I conceive of an appropriate penalty for the mother's role in the affair. Taking away her other children, if she has any, seems excessive and pointless...though one can certainly argue for it as a stroke against potential "recidivism." Subjecting her to a fine or imprisonment would be even worse. As for the death penalty, if you seriously believe that would be fitting, keep your hands where I can see them and make absolutely no sudden moves.
If we do insist that Mrs. Smith incur some sort of penalty, yet another question arises: What about the friend who left the gun there for "storage?" Did he leave it in a locked box, or lying on the coffee table? Did he leave it loaded, in the irrational assumption that no one would touch it, or unloaded, as would have been prudent and proper? Is it just to dismiss his role in the affair as immaterial, when there were clearly actions he could have taken to avert the sequel?
Negligence is among the most difficult of all things to punish or deter for this reason among others: the length of the chain of responsibility, once one moves from the "proximate cause" -- in this case, the dead daughter -- to the "enablers," is difficult to bound by any objective standard.
Thoughts?
I looked at the McArdle link (Daily Beast) and from there I read the Slate article. All emotional and legal blah-blah but almost no facts.
ReplyDeleteTo get a start on making a judgement in this case, one must have a clear idea (or some idea) of the degree of negligence. Was the gun loaded and left on the kitchen table? Was it unloaded and hidden under and behind stuff on a high shelf in a closet? Was it locked in a safe? The point being: How easily could a child get hold of the thing and shoot it? The mother's duty is to anticipate such things and take action to prevent them from happening. The degree of negligence is directly related to how obvious the danger was.
The only other point I would make is that the "friend who left the gun there for storage" bears no responsibility once the mother was aware that he left it in her house. If he left it loaded on the kitchen table and she knew about it, she is negligent if she doesn't move it to a safer place (and remove the bullets). On the other hand (hard to imagine), if he surrepticiously deposited a loaded gun in a desk drawer easily accessed by a child, then he is entirely to blame.
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BTW, this paucity-of-facts disease is rampant among newspapers and other publications. I often find that the most obvious fact one needs to make sense of a story is omitted.
Here's my thinking on this subject. Mrs. Smith was responsible for her daughter's safety. She also took on the additional responsibility of taking the gun in storage. Of course, she didn't want for her daughter to die as a result of having the gun in the house, she apparently couldn't even fathom this outcome. But it HAPPENED. So the first question is, was the gun stored safely, in a manner in which reasonable people would believe the daughter could not gain access to it, or was it stored irresponsibly, in a way that made it easy for the daughter to obtain. If the gun was easily accessible, then what followed was a direct result of Mrs. Smith's lack of responsibility, and she should be punished under the law for her daughter's death -- in redress for her own lapse, and as an additional deterrent to other parents, for whom the prospect of the death of their own child just doesn't hold enough sway. For responsible gun owners with reasonable expectations, there is essentially no change. As for the rightful owner of the gun who left it in Mrs. Smith's care, as long as he and Mrs. Smith were legally eligible to possess the gun, and as long as he didn't feel - in advance -- that Mrs. Smith would handle or store the gun in an irresponsible manner, I don't see how he has any legal culpability.
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