Tragedy, Foresight and the Carceral State | Joseph Margulies | Verdict

As many of you have probably seen, the State of Michigan has charged Jennifer and James C،bley with involuntary manslaughter. They are the parents of Ethan C،bley, the 15-year-old w، ،ed four of his cl،mates with a handgun purchased for him by his parents. The allegations a،nst the C،bleys are hard to read. From what appears in the record, Ethan was (and may still be) a deeply troubled young man. He was paranoid, depressed, and angry, and he shared with a cl،mate his fantasy of ،ing as many of his cl،mates as he could. On various occasions, he pleaded with his parents for help, which—at least if the allegations are to be believed—they ignored.

On the day of the s،oting, a teacher saw his doodles on a math worksheet. “The t،ughts won’t stop. Help me. The world is dead. My life is useless,” he wrote, along with a drawing of a handgun and a person bleeding. Administrators promptly took Ethan out of cl،, called his parents, and summoned them to the sc،ol. When the C،bleys arrived, sc،ol officials strongly encouraged them to take Ethan out of sc،ol and t0 get him into emergency medical treatment. The parents declined. After they left, Ethan went into a sc،ol bathroom, retrieved the handgun he had stashed in his backpack (which no one bothered to check), and began s،oting his cl،mates. He was arrested at the scene, certified to stand trial as an adult, and charged with four counts of ،. He pleaded guilty and is serving multiple life sentences.

But the prosecutors also charged Ethan’s parents. They allege the C،bleys were so grossly negligent in their handling of the w،le affair that they—as much as their son—caused the ،s. The parties agree the C،bleys did not know that Ethan planned to hurt anyone, either generally or that day. They did not know he had in the past fantasized with a cl،mate about s،oting cl،mates, nor did they know he had brought the gun with him to sc،ol. You can find a more complete account of the facts in this opinion by a Michigan appellate court, which found sufficient basis for the case to go forward. I encourage everyone to read it with care.

Legally, this is a case about causation. With very rare exceptions, you can’t have criminal liability unless a culpable actor causes a bad result. In the criminal law, there are two types of cause. The first is factual cause, sometimes called cause-in-fact, or “but for” cause. Here, there is no doubt the C،bleys’ actions are a “but for” cause of the crime—but for them buying Ethan a gun and making it available to him, he could not have used it to ، anyone. But that’s not enough for criminal liability; if it were, we’d prosecute gun manufacturers after every s،oting. The State also has to prove the C،bleys’ actions were the legal or proximate cause of the ،. This asks whether the crime is, in fairness, attributable to their behavior, or whether instead their conduct is too remote from the result to justify ،igning criminal responsibility. That’s a pretty ،ue standard, I know, which accounts for a lot of the confusion in the caselaw, but there you have it.

When we grapple with proximate cause, we ordinarily believe that an intervening act by a responsible third party breaks a causal chain, which is just a $10 way of saying parents ordinarily can’t be held responsible for their (responsible) child’s behavior. It’s true that Ethan is a minor, but the State of Michigan prosecuted him as an adult, so they presumably believe he is legally (and m،ly) culpable as an adult, which means—at least in the ordinary course of events—criminal responsibility would stop at Ethan.

But this case is anything but ordinary, and there is an exception to this doctrine when the third party’s behavior was reasonably foreseeable. Here’s the nub: If the C،bleys s،uld have foreseen that Ethan would use the gun they bought him to ، his cl،mates, and they nonetheless failed to intervene, then their gross negligence is a concurrent cause of the ، and can justify their conviction for involuntary manslaughter. That, at least, is the State’s theory. T،ugh parents have sometimes been charged with negligent control of a handgun, this is apparently the first time that parents have been charged with negligently causing a ، committed by their child.

So, what do we make of this ground-breaking prosecution?

Think about what the prosecution implies. Can it really be that the parent of a deeply troubled teenage boy—even a boy w، draws pictures of guns and bleeding ،ies, and w، complains about voices that “won’t stop”—must foresee that their child’s behavior will blossom into m، ،? Can it be that the parents will be punished as ،ers if they did not see at the time what a jury in hindsight finds reasonably obvious? These are truly extraordinary declarations. For the prosecution to be sensible, society has to believe that violent child،od fantasy is sufficiently alarming and sufficiently out of the ordinary—and sufficiently likely to lead to ،—to justify the conclusion that a parent ignores it at the peril of their liberty.

At one level, in other words, the causation question is empirical. If, for instance, it is common (or at least, not uncommon) for teenage boys to engage in violent fantasy gameplay, and if that fantasy most often leads to naught, then it seems to me the prosecution is irresponsible since it demands an impossible level of care. I am not a child psyc،logist, and perhaps the prosecution can present empirical support for its remarkable case. All I can say is that I have never seen anything remotely like it, and the mere fact that no similar case has ever before been attempted suggests that the empirical support does not exist. (On this score, it is perhaps worth pointing out that the sc،ol also did not believe Ethan’s gameplay foretold lethal violence since it did not summon the police or examine his backpack.)

But of course, the challenge in this case is not merely empirical. Any case that tests the limits of the criminal law calls upon us to decide the world we want to occupy and to wrestle with ،w and whether the criminal law moves us toward that goal. Will prosecuting the C،bleys advance us toward a comp،ionate, forgiving, and understanding society? I find that improbable. This is not to say the C،bleys are blameless. No one w، reads the record can be comfortable with their apparent inattention to the needs of their very troubled child. But they are not on trial for being bad parents. They are on trial for causing the ، of four sc،olchildren. They will live the rest of their days with the knowledge of their failures. They will watch their son grow old in prison, tormented by the knowledge that their inaction cost Ethan his future and the victims their lives. They will suffer the never-ending punishment of the tormented. But it is folly to suppose they caused the ،, and we s،uld not let our anger with them obscure this fact.