Penalty vary as kids die in hot cars

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WORLD / America

Penalty vary as kids die in hot cars

(AP)
Updated: 2007-07-29 09:17

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.

This undated photo of Leon T. Jewell was released by the Kentucky Dept.
of Corrections. Jewell, of Lexington, Ky., said he was drunk when he left
his 9-month-old son, Daniel, in a car in August 2005. He pleaded guilty
to second-degree manslaughter, but a merciful judge sentenced him to
seven years' probation and ordered him into rehab. After becoming drunk
on what would have been Daniel's second birthday, the distraught Jewell
was kicked out of rehab. He is now serving out his sentence in a Kentucky
prison. [AP]

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
percent 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 percent 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 nonprofit 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 percent 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 percent of cases. In those that have
been decided, 81 percent 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 percent were charged, with 96
percent 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 percent of the time, compared to 47 percent 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 percent 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 percent 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, Tenn., 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 5 1/2
years longer.

In 2004, Tara Maynor was sentenced to 12 1/2 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; Jewel 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."

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