July 19, 2011
Crime and Punishment Department
Never Rely on Prosecutors For Mercy
Defenders of Caylee's Law have been arguing in my comments and elsewhere that even though the rush to legislate will result in a poorly-written law, my fear that it will punish innocent parents and babysitters far more than it helps any child is unfounded, because prosecutors will use their discretion wisely and mercifully.
In most cases, I'm sure they're right, but why rely on it? Why not just take the time to write a good law? It's not like there aren't grandstanding prosecutors out there who will punish people just to make themselves look tough, and it doesn't take more than a few handfuls of them to ruin a lot of lives.
Last April, Nelson was crossing a street with her three children when her 4-year-old was struck and killed by a car. She was crossing at an intersection, but was apparently not in a designated crosswalk. The driver who killed her had been drinking, taking painkillers, and was blind in one eye. He also has two prior hit-and-run convictions. Nelson and her daughter were also struck and injured. Residents of Nelson's apartment building have complained to the city about the intersection. The nearest crosswalk is a half mile away.
In other words, she jaywalked, and she had very, very bad luck. Here's what the wise and merciful prosecutor did:
Nelson was charged with second-degree vehicular homicide. Which is insane. She was convicted last week. When she's sentenced later this month, she could spend more time in jail than the man who struck and killed her son. The prosecutor will say he was just enforcing the law. The jury will say they were just applying it. Both are excuses to duck responsibility (prosecutors can decline to bring charges, juries can nullify). But if both are true, then the time to prevent the unjust application of well-intentioned laws is to anticipate those applications while the laws are being written and proposed.
Which is the whole point I've been trying to make all along.
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