10 May 2009

When baby is left in the car

The human brain . . . is a magnificent but jury-rigged device in which newer and more sophisticated structures sit atop a junk heap of prototype brains still used by lower species. At the top of the device are the smartest and most nimble parts: the prefrontal cortex, which thinks and analyzes, and the hippocampus, which makes and holds on to our immediate memories. At the bottom is the basal ganglia, nearly identical to the brains of lizards, controlling voluntary but barely conscious actions.

[I]n situations involving familiar, routine motor skills, the human animal presses the basal ganglia into service as a sort of auxiliary autopilot. When our prefrontal cortex and hippocampus are planning our day on the way to work, the ignorant but efficient basal ganglia is operating the car; that's why you'll sometimes find yourself having driven from point A to point B without a clear recollection of the route you took, the turns you made or the scenery you saw.
And that's why an otherwise loving, doting, responsible, and conscientious parent may accidentally leave her child in the car all day, to die of hyperthermia. It's also why such a parent should not be charged with a crime when that happens: what's happening in your brain is no different from a day when your morning routine is interrupted, and so you forget to grab your cell phone.

Of course, the consequences are different. But since even the risk of that unspeakable consequence can't make your brain remember to take the baby out of the car, we shouldn't waste police and judicial resources prosecuting a parent who's had this horrible thing happen to them. It's physiologically unintentional.

The most plausible explanation I've heard is that, since cars are made with front airbags now (as opposed to the olden days, when kids rode on a mattress laid over the backseat for the 13-hour drive to Grandma's), kids are supposed to be put in the back. Carseats and boosters seats, too. Worse, babies are supposed to be put facing backwards. You can't even see the top of baby's head in the rear-view mirror when you've put baby back there in the safest position possible. Think of it as a malevolent alignment of the planets when your morning routine has been interrupted, and then baby falls asleep during the ride, and you've unknowingly flipped the bit in your brain that says "baby is at daycare" to "on."

I couldn't have written about these kinds of cases just a few years ago. When this topic came up during our Crim Law class when I was a 1L, I almost had to leave the lecture hall.


John said...

I think I agree with the sentiment, but the unshakable flipside that I see is that without the prospect of punishment, this would be an easy way to kill ones child without penalty.

Of course, and I'm no expert, but the cases of filicide caused by postpartum depression that I'm aware of didn't involved the mother even trying to cover up the crimes. Also, the severe suffering involved with hyperthermia isn't typical of filicide, I would imagine.

It's a very difficult situation, but I think you're right, criminal charges probably aren't warranted. Is this a situation where prosecutorial discretion doesn't apply?

Glomarization said...

Hey, John,

The article points out that all these cases have commonalities to them: a "perfect storm" of changes to the parent or caregiver's routine, and then a total break-down freak-out when the parent or caregiver realizes what they've done. You don't see that in post-partum psychosis child-killing, I don't think. Another difference is that hyperthermia cases aren't preceded by maternal psychological problems.

As for prosecutorial discretion, I think that always applies. The final decision whether to bring charges is the D.A.'s, and the courts have historically not interfered -- to the consternation of those who would say that the courts have abdicated their responsibility in that area to check the executive branch.