Wide disparity exists in sentences for leaving kids to die in hot cars

From USAToday

Wide disparity exists in sentences for leaving kids to die in hot cars
By Allen G. Breed, Associated Press
July 29, 2007

MANASSAS, Va. — Kevin Kelly is a law-abiding citizen who, much distracted, left his beloved 21-month-old daughter in a sweltering van for seven hours.

Frances Kelly had probably been dead for more than four hours by the time a neighbor noticed her strapped in her car seat; when rescue personnel removed the girl from the vehicle, her skin was red and blistered, her fine, carrot-colored hair matted with sweat. Two hours later, her body temperature was still nearly 106 degrees.

What is the appropriate punishment for a doting parent responsible for his child's death? A judge eventually spared Kelly a lengthy term in prison. Still, it is a question that is asked dozens of times each year.

Since the mid-1990s, the number of children who died of heat exhaustion while trapped inside vehicles has risen dramatically, totaling around 340 in the past 10 years. Ironically, one reason was a change parent-drivers made to protect their kids after juvenile air-bag deaths peaked in 1995 — they put them in the back seat, where they are more easily forgotten.

An Associated Press analysis of more than 310 fatal incidents in the past 10 years found that prosecutions and penalties vary widely, depending in many cases on where the death occurred and who left the child to die — parent or caregiver, mother or father:

• Mothers are treated much more harshly than fathers. While mothers and fathers are charged and convicted at about the same rates, moms are 26% more likely to do time. And their median sentence is two years longer than the terms received by dads.

• Day care workers and other paid baby sitters are more likely than parents to be charged and convicted. But they are jailed less frequently than parents, and for less than half the time.

• Charges are filed in half of all cases — even when a child was left unintentionally.

In all, the AP analyzed 339 fatalities involving more than 350 responsible parties. July is by far the deadliest month, accounting for nearly a quarter of the total.

A relatively small number of cases — about 7% — involved drugs or alcohol. In a few instances, the responsible parties had a history of abusing or neglecting children. Still others were single parents unable to find or afford day care.

Many cases involved what might be called community pillars: dentists and nurses; ministers and college professors; a concert violinist; a member of a county social services board; a NASA engineer. And it is undisputed that none — or almost none — intended to harm these children.

"When you look at overall who this is happening to, it's some very, very, very good parents — might I say, doting parents," says Janette Fennell, founder and president of Kids and Cars, a non-profit group that tracks child deaths and injuries in and around automobiles.

"But no one thinks it's going to happen to them. I think people are lying if they say that there wasn't one situation in raising their child that, 'There but for the grace of God go I."'

The AP's analysis was based largely on a database of fatal hyperthermia cases compiled by Fennell's organization. The AP contacted medical examiner's offices in several states where this most often occurs, and the group's numbers coincided almost exactly with recorded hyperthermia deaths.

Some of these children crawled into cars or trunks on their own, but most were left to die by a caregiver. Most often, it was a parent who simply forgot the child was inside.

Texas leads the nation with at least 41 deaths, followed by Florida with 37, California with 32, North Carolina and Arizona with 14 apiece, and Tennessee with 13

. There were deaths recorded in 44 states — most in the Sun Belt, but many in places not known for hot weather.

The correlation between the rise in these deaths and the 1990s move to put children in the back seat is striking.

"Up to that time, the average number of children dying of hyperthermia in the United States was about 11 a year," says Jan Null, an adjunct professor of meteorology at San Francisco State University who has studied this trend. "Then we put them in the back, turned the car seats around. And from '98 to 2006, that number is 36 a year."

Few understand just how quickly a car can heat up, even on a moderate day.

According to one study, the temperature inside a vehicle can rise more than 40 degrees in the span of an hour, with 80% of that increase occurring during the first half hour. And researchers found that cracking the windows did little to help.

Children, often too young to escape, are particularly vulnerable because their immature respiratory and circulatory systems do not manage heat as efficiently as adults'. After a short time, the skin grows red and dry, the body becomes unable to produce sweat, and heat stroke kills the child.

Already this year, at least 16 children have died in hot vehicles from Hawaii to Virginia — including a 4-year-old New Orleans boy who died on Father's Day.

Since 1998, charges were filed in 49% of cases. In those that have been decided, 81% resulted in convictions or guilty pleas, and half of those brought jail sentences — the median sentence being two years. Parents were only slightly less likely to be charged and convicted than others, but the median sentence was much higher — 54 months.

In cases involving paid caregivers, 84% were charged, with 96% of those convicted. But while they are jailed at about the same rate as parents, the median sentence in those cases was just 12 months.

Women were jailed more often and for longer periods than men. But when the AP compared mothers and fathers, the sentencing gap was even wider.

Mothers were jailed 59% of the time, compared to 47% for fathers. And the median sentence was three years for dads, but five for moms.

"I think we generally hold mothers to a higher standard in the criminal justice context than in just family life generally," says Jennifer M. Collins, a professor at the Wake Forest University School of Law who has studied negligence involving parents and such hyperthermia cases. A large segment of society, she says, thinks "fathers are baby-sitting, and mothers are doing God's work."

In 27% of the cases the AP studied, the children got into the vehicles on their own. Those cases are much less likely to be prosecuted, though sometimes parents are punished for negligence — particularly where substance abuse is involved.

The AP identified more than 220 cases in which the caregiver admitted leaving the child behind. More than three-quarters of those people claim they simply forgot.

It's easy to forget your keys or that cup of coffee on the roof. But a child? How is that possible?

The awful truth, experts say, is that the stressed-out brain can bury a thought — something as trite as a coffee cup or crucial as a baby — and go on autopilot. While researchers once thought the different parts of the brain worked in conjunction with each other, they now realize that different portions dominate at different times.

"The value of the item is not only not relevant in these competing memory systems," says memory expert David Diamond, an associate psychology professor at the University of South Florida who also works at a Veterans Affairs hospital. "But, in fact, we can be more complacent because we tell ourselves, 'There's no way I would forget my child."'

Harvard University professor Daniel Shachter, a leading brain researcher, says memory is very "cue dependent."

"And in these cases, the cue is often missing," he says. "When we go on automatic, it's very possible for us to ignore or forget about seemingly important things."

Like a baby.

Nationwide, about 60% of cases where the child was left unintentionally result in charges. But policies vary wildly from one jurisdiction to the next.

At least nine children in Las Vegas have died in hot vehicles since 1998, but charges were filed in only two of those cases. For several years, it has been the policy of the Clark County prosecutor's office not to file charges unless there is proof of "some general criminal intent ... to put the child in harm's way," says chief deputy DA Tom Carroll.

But in Memphis, District Attorney General William L. Gibbons scoffs at the notion that he wouldn't charge someone — especially a parent — who claims to have simply forgotten a child.

"It frankly boggles my mind that a parent can forget that a child is in a vehicle for two hours," says Gibbons, whose office has prosecuted five cases involving nine parents and day-care workers since 1998.

Earlier this year, the state Supreme Court ordered Gibbons to grant pretrial diversion to youth minister Stephen McKim. McKim was late for a church meeting and forgot his 7-month-old daughter Mia in the back seat — even though the day care center was at the church.

Under diversion, the charge would be dismissed after two years if McKim successfully fulfills certain court requirements. Gibbons thinks that's getting off too easy.

"We're not talking in most cases about sending anyone to prison," he says. "We are talking about placing someone on probation, maybe requiring them to go to some parenting classes or something like that, and giving them a felony record as a result of what happened. And I think that's reasonable."

Not surprisingly, the harshest treatment is reserved for those who intentionally left their children. According to the AP's analysis, those people are nearly twice as likely to serve time than people who simply forgot the child. And on average, they received sentences that were 5½ years longer.

In 2004, Tara Maynor was sentenced to 12½ to 60 years in prison on two counts of second-degree murder after leaving her two children in a car for four hours outside a suburban Detroit beauty parlor while she got a massage and hairdo. She told police she was "too stupid to know they would die."

Just last month, Karla Edwards pleaded guilty in Aiken, S.C., to homicide by child abuse for leaving her 15-month-old son, Zachary Frison, in a car for nine hours in April 2006 while she worked at a home-improvement store. When Edwards was unable — or unwilling — to explain her actions, the judge sentenced her to 20 years.

But in many cases, police, prosecutors and judges must wrestle with whether to charge, try and punish an already grieving parent.

In Lexington, Ky., Fayette Circuit Judge James Ishmael said the question of what to do with Leon Jewell was perhaps the toughest of his career.

According to police, Jewell admitted buying beer and vodka at a liquor store on Aug. 1, 2005, and drinking in his SUV on the way home. When his wife returned home from work later that day, she found 9-month-old Daniel, the couple's only child, still strapped in his car seat.

Jewell pleaded guilty to second-degree manslaughter. Despite the prosecutor's recommendation of seven years, Ishmael placed the clearly remorseful and devastated Jewell on probation and ordered alcohol treatment.

But six months later, on what would have been Daniel's second birthday, Jewell got drunk and was kicked out of his treatment program. Ishmael sent him to prison for seven years; Jewell expressed his torment in a letter to the judge.

"When I was last before you (you) told me there are worse places than jail," he wrote. "And you are correct. Where ever I am is the worst place in the world. ... I have violated man's laws. I have violated God's laws."

Judges often attempt to craft creative penalties: An Idaho mother was ordered to make a video about her case to be used in birthing classes. In addition to spending eight months in prison, a Louisiana baby sitter was ordered to pay the dead girl's funeral expenses and to make a $500 annual donation to the hospital that treated her. Some day-care workers have been prohibited from supervising young children during their probation.

So what of Kevin Kelly? What did he deserve?

Would it influence your opinion to know that the day Frances died, May 29, 2002, the Manassas engineer was watching 12 children alone while his wife and oldest daughter were abroad visiting a cancer-stricken relative?

Does it matter that when he returned home that day, he'd asked two teenage children — both of baby-sitting age — to attend to their younger siblings while he went back to school for another daughter who was late getting out of an exam?

Or that during the next seven hours, he was accosted by an air conditioning repairman with news that he was going to have to spend several thousand dollars on a new unit? That he fixed lunch, did laundry, mended a gap in the fence that the little ones were using to escape the yard, drove to the store for parts to fix his air conditioner, took a son to soccer practice and fixed a leaking drain pipe in the basement?

Prince William County Commonwealth's Attorney Paul L. Ebert concluded that Kelly's failure to ask after Frances for seven hours rose to the level of a crime. Kelly was convicted of involuntary manslaughter and child endangerment. The jury recommended a year in prison.

But Circuit Judge Rossie D. Alston Jr. had what he thought was a more humane solution. He ordered Kelly to spend one day a year in jail for seven years and to hold an annual blood drive around the anniversary of his daughter's death.

Kelly is still a convicted felon. He cannot vote, and his job was affected because he is barred from certain government properties.

But waiting in line recently at the All Saints Catholic Church to donate blood, he said he is happy for the chance to honor his daughter by helping to save lives.

"The judge was very, very merciful," he said as his red-haired children scurried around giving snacks and stickers to donors. "And I'm very grateful for what he did in allowing me to stay with my family and support my family."

Contributing: AP researcher Monika Mathur; National Writer Martha Mendoza.

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Sidebar: TECHNOLOGICAL SOLUTIONS

Your car has a sensor that tells you when you've left the headlights on or the keys in the ignition. It probably has another reminding you and your passengers to buckle your seat belts, and still another that sounds when the door is ajar. Some cars even to tell you when the tires need inflating.

But so far, there's no standard equipment to tell you that you've left a child in the back seat.

"The issue is not the technology; the issue is getting it to market," says Jan Null, a San Francisco-area meteorologist who also tracks child hot-car deaths.

Requiring such technology would translate into tens of millions a year in added costs to carmakers. But a spokesman for the Alliance of Automobile Manufacturers in Washington, D.C., insists cost is not the issue.

"Safety is the industry's top priority, particularly when it comes to children," says Wade Newton, whose group represents BMW, Daimler-Chrysler, Ford, General Motors, Mazda, Mitsubishi, Porsche, Toyota and Volkswagen.

Newton says no one has come up with a system that is immune to false alarms. He says the industry is constantly seeking safety improvements, but adds that all of these innovations "really work hand in hand with parental supervision."

There are products out there that could prevent most of these hyperthermia deaths. Among them:

• The Child Minder system replaces the car seat's harness clip with a "smart clip" synchronized to a key ring alarm. The unit is activated when the child is buckled in. As long as the child remains in the seat, an alarm will sound if the adult walks more than 10 feet from the automobile.

• NASA is on the verge of licensing its Child Presence Sensor, which replaces the clip with a weight-sensitive pad that fits under the car seat cushion. An alarm sounds 10 warning beeps if the driver moves too far away from the vehicle, and beeps continuously if the driver doesn't return within one minute. Engineers at the agency's Langley Research Center in Virginia developed the device after a colleague left his 9-month-old son in a hot car in May 2000.

• Volvo's flagship S80 sedan includes a Personal Car Communicator that can detect a heartbeat inside the vehicle and send a warning to the driver's wireless key fob. Volvo is marketing it as a safety option for women worried about back-seat attackers, not as a way to remind the driver of a child left behind.

— Associated Press