Several states have so-called CAP (child-access prevention) laws that make it a crime for adults to allow children to have unsupervised access to firearms. Such laws have repeatedly been proposed in Michigan, but the legislature has opted not to enact them. Moreover, while prosecutors insisted, in announcing their involuntary-manslaughter charges, that the pistol should have been locked away, with a safety mechanism clipped in place and the ammunition kept separate, there is no such mandate in state law. And, the passion of anti-gun advocates notwithstanding, if such a law were enacted it would face stiff constitutional challenges.
Now, with the legislature having refused to criminalize the conduct in which the Crumbley parents engaged, the prosecutors — whose actual job is to enforce the legislature’s laws — are attempting in the heat of the moment to criminalize the conduct themselves.
It is one thing to say that the parents were egregiously derelict — just as, for example, store owners are egregiously derelict when they sell to suspicious characters substances (including explosive powders) that can be used to make bombs. But that does not make the parents’ conduct a criminal violation, much less make them responsible for homicide — a much more serious crime, even in the form of involuntary manslaughter, than the CAP crime that Michigan has refused to codify.
The Crumbley parents may be looking at significant civil liability, and deservedly so. But we are not supposed to make criminal law by having prosecutors concoct it on the fly. We should particularly resist prosecutorial creativity in the immediate aftermath of an emotionally charged tragedy such as this one. And when legislatures do codify a crime, it should be calibrated to the wrong actually done by the action or omission, not to the horrific downstream consequences. What happened at Oxford High School may have been foreseeable in some abstract sense, but it was certainly not foreseen in concrete reality.
There is already enough tragedy here. Distorting the law to make it fit our sense of outrage can only make matters immeasurably worse in the long run.
In the face of public outrage, prosecutors are seeking to write the law rather than enforcing it. Their overreach serves no one’s long-term interests.
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