Prosecuting Dad when Mommy kills

I couldn't disagree more with columnist Jacquielynn Floyd at the Dallas News, who finds praiseworthy a 10-year sentence for a father whose wife killed her child in an episode of postpartum psychosis. She thinks:

there's a moral equilibrium, a sort of righting of the ship, that comes with judicial recognition that a father who leaves his child with a psychotically sick wife is guilty of more than just bad luck.

The sad case of baby Alex marks what may be the first-ever successful prosecution of a dad after a mentally ill mother kills her child. Maxon's wife, Valeria, drowned the 1-year-old in a backyard hot tub at the family's Mansfield house in 2006. Maxon had left to run household errands.

"You left a defenseless child alone with your wife," state District Judge Wayne Salvant told the defendant, who was clearly stunned by the 10-year sentence.

"You express no regret for the offense, and you do not fully understand what your actions had to do with the death of your son."

Nobody at that precise moment said "Rusty Yates." Nobody had to.

But defense lawyer Jack Strickland (no down-and-out public defender, by the way, but one of the most able attorneys in the state) suggested that the case against his client was unfair payback for public animus against Mr. Yates.

You know, of course, that he's the Houston man whose desperately, wretchedly crazy wife, Andrea Yates, drowned their five kids in the bathtub while he was at work.

Andrea, as you'll recall, remains in a mental hospital. Rusty got a divorce and a new wife and went on with his life.

"There was a great outcry after Yates," Strickland said, in trying to persuade the judge to give Mr. Maxon probation. "Maybe to a degree those chickens have come home to roost."

If they have, they're overdue.

Analogizing the situation to "leaving a toddler alone with a loaded gun," Floyd says that "Profound derangement made Valeria Maxon as dangerous to her child as a loaded gun. Doctors had told her husband so in plain English."

So essentially Mr. Maxon is going to prison because tragedy befell when he failed to strictly follow a doctor's orders. That seems wrongheaded. Will we apply the same standard when antibiotic resistant infections arise because people don't finish taking their prescription?

It also sets a bad precedent IMO to prosecute the families of the mentally ill for the actions of their relatives. That could have the unintended consequence of causing family members to refuse to help the mentally ill for fear if something goes wrong they'll suffer criminal liability.

But most of all, I think Floyd's stance and the prosecution's case ignore the realities of postpartum psychosis. I don't think the husbands should be prosecuted in these tragedies, and we're better served by getting the women mental health treatment, preferably up front, than locking them up the rest of their lives. Criminal prosecution won't prevent similar tragedies from happening in the future. There is no deterrent value for women in the throes of psychosis, and past the short-term, there's zero value from "incapacitation," since in most cases the psychosis will ultimately go away whether or not someone's incarcerated.

Honestly the money to incarcerate this guy would be better spent on medical research aimed at understanding the problem and developing medical treatments and coping strategies. We're talking about a particularly poorly understood phenomenon.

Only one or two women out of 1,000 develop postpartum psychosis, and in most cases they don't kill their children; they're more likely to kill themselves. It's just not true that the threat of mothers killing their children is something common that every parent has to deal with. The argument that a child's mother should be feared like a loaded gun can only ever be made with the benefit of 20/20 hindsight, and only from a distance. (OTOH, not every mother who kill her child suffers from postpartum psychosis; I don't mean by these arguments to excuse intentional criminal behavior.)

In reality, Maxon suffered from a serious mental illness that most people (quite thankfully) know little about and find bizarre and shocking when they encounter it. Her doctor told the father not to leave her alone with the child, Floyd reports, but Katherine Stone at Postpartum Progress wonders why she wasn't hospitalized?

In any event, the doctor's advice flies in the face of all our assumptions about motherhood, much less a husband's assumptions about the wife he loves and trusts. Most folks are ignorant and naive about mental illness unless they have personal experience with a family member, and in cases of postpartum psychosis there's not that familial history of dealing with the situation because the mother was sane and rational just months before. Katherine Stone describes her own husband's (much more constructive) reaction to her experience with postpartum depression:

I imagine he resented how hard he had to work to take care of me and my son while at the same time holding down a full-time job. In the end, though, we both learned a lot about what was happening with me and he supported my treatment and encouraged my recovery. I believe his initial confusion and frustration came out of a complete lack of knowledge about what was happening.

That emotional mix to me sums up what likely motivated Mr. Maxon's ill-fated decision that day: Confusion, frustration and ignorance, but not malice. The father's role was tragic, but IMO not criminal. His ten-year sentence, and Floyd's column, confuse vengeance with justice.

For more background on postpartum psychosis, see these excellent recent posts from Postpartum Progress:

• The symptoms of postpartum psychosis (in plain Mama English)

• Postpartum psychosis and the lack of insight

• Three short videos help illuminate postpartum psychosis

• A rare, enlightened look at the infanticide defense

See also prior, related Grits posts:

• Should postpartum psychosis be a legal defense when Moms kill kids?

• Romeo and Juliet, Abraham and Isaac, who to criminalize?

Romeo and Juliet, Abraham and Isaac: Who to criminalize?

While waiting yesterday in the House Criminal Jurisprudence Committee hearing for a late bill on which I was testifying, Rep. Garnet Coleman brought forward two very interesting pieces of legislation worthy of note:

HB 3564: Relating to the prosecution of certain conduct constituting the offense of indecency with a child.

HB 2973: Relating to the insanity defense in a criminal case.

HB 3564 would expand the "Romeo and Juliet" defense (consensual sexual partners are within three years of one another's age) to indecency with a child to include gay relationships, or as Rep. Debbie Riddle put it, adding a "Romeo and Romeo" exception.

Throughout all the discussion of the "Romeo and Juliet" exception to the so-called "Jessica's Law" in 2007, that oversight certainly never occurred to me, and I watched the process pretty closely. Good catch.

Coleman's second bill, HB 2973, focuses on a topic discussed here recently on Grits in the context of Andre Thomas, the schizophrenic death row inmate who murdered his family then plucked out both his eyes and ate one: Whether the test for legal insanity should be simply whether the defendant "knows the difference between right and wrong." NAMI-Texas said the current definition is so narrow as to be "meaningless."

Under Coleman's proposed redefinition, it would be an affirmative defense to prosecution if an actor with a severe mental illness or defect "was unable to appreciate the nature and quality of the actor's conduct" or did not "appreciate that the actor's conduct was legally or morally wrong."

Rep. Miklos raised the objection that saying someone's conduct was "morally wrong" was a subjective standard, that everyone's definition of morality may be different. Chairman Gallego added that everyone on the dais likely had a different moral view of abortion, which could make "morally wrong" a moving target.

But George Parnham, a criminal defense lawyer testifying for the bill, did a good job of explaining the standard. He compared the subjective nature of the standard to defendants claiming "self defense" as an affirmative defense in a murder case. When assessing "self defense," juries are asked to consider the relative danger of a situation from the perspective of the shooter. Similarly, if a severely mentally ill person hears voices they believe to be God commanding them to do something, for example, since disobedience to God is wrong in the moral construct of the mentally ill individual, a killer following such "divine" instructions would qualify for the affirmative defense.

The discussion centered mostly around the Andrea Yates case - the mother who drowned her five children in a fit of postpartum psychosis believing it would save their immortal souls.

Somehow, as the discussion went on, I found myself thinking of the story of Abraham in the Bible, ordered by God to take his son Isaac to the top of the mountain and sacrifice his life. Abraham dutifully took Isaac to the appointed spot and tearfully raised his blade, ready and willing to plunge it into the body of his only progeny, when Divine Intervention stayed his hand. Abraham serendipitously found a goat whose horns were stuck in the brambles and sacrificed it instead.

No one else was there with Abraham to verify this story on the mountaintop, but from a modern perspective, we would not be surprised to discover Abraham was a schizophrenic hearing voices he believed to be God. Perhaps it's only by chance of fate that he didn't end his filial line at that moment rather than siring the Jewish people. I found myself wondering how the story about nearly killing Isaac would be viewed if Abraham were evaluated today by a mental health professional? It's as though Andrea Yates had decided at the last minute not to drown her children and instead founded a religion.

Such theological matters aside, Coleman's proposed definition reflects a medical understanding of mental illness rather than taking a black and white, "right and wrong" approach to mental-illness driven tragedies. He referred to current law as the "Hinckley Standard," reflecting changes made to various state laws in the '80s as a backlash after John Hinckley tried to assassinate President Ronald Reagan and was found not guilty by reason of insanity.

Andrea Yates' story, said Coleman, brought that reactionary standard back into focus and inspired this bill. Yates' defense lawyer was one of the witnesses testifying. Another gentleman related a heartwrenching tale of his step-daughter's struggle with schizophrenia and the religious delusions that led her to attack her father with a bow and arrow before she was shot by her father's officeworkers and police. A terrible story. I felt awful for the poor guy and his family.

The committee had an interesting and informative discussion on the subject of people who, as Judge Cathy Cochran wrote recently about Andre Thomas, are "clearly 'crazy,' but ... also 'sane' under Texas law."

I liked both bills. You can watch the video here, beginning at the 4:17:45 mark.

Should postpartum psychosis be a legal defense when Moms kill kids?

The Dallas News reports on legislation (HB 3318) by Texas state Reps Jessica Farrar and Garnet Coleman that would make postpartum disorder a legal defense for women who kill their children, allowing jurors to hear testimony at the sentencing phase about the medical issues surrounding postpartum psychosis, potentially sentencing the offense as a state jail felony if they believe that's what spawned the tragic event ("Proposed bill would recognize postpartum psychosis as defense for Moms who kill infants," March 23):

If lawmakers approve the measure, Texas would be the first state to have an infanticide law, said George Parnham, the Houston attorney who defended [Andrea] Yates.
"It's something every civilized country has on its books," said Parnham, a strong proponent of the legislation. "The only thing that will change public attitude is education about postpartum issues."
The bill, introduced earlier this month by Rep. Jessica Farrar, D-Houston, applies to women who commit the crime within 12 months of giving birth. If jurors find a defendant guilty of murder, they can take testimony about postpartum issues into consideration during the trial's punishment phase.
If jurors believe that the woman's judgment was impaired as a result of childbirth or lactation, they can find her guilty of infanticide – a state jail felony that would carry a maximum punishment of two years in jail. ...
Postpartum depression is recognized as a legal defense in at least 29 nations, including Britain, which has had an infanticide law on the books since 1922.
"These countries have accepted the reality of postpartum mood disorders," said Susan Dowd Stone, chair of the President's Advisory Council for Postpartum Support International, a California-based advocacy group. ...

Only one or two in 1,000 women develop postpartum psychosis that has been cited in high-profile cases like those of Schlosser, the Plano mother who killed her baby in 2004 by cutting off her arms, and Yates, the Houston mother who drowned her five children in 2001. Both women were found not guilty by reason of insanity and placed in mental-health treatment centers.
For every woman who receives treatment, there are 10 who are imprisoned for the crime, Stone said.
"These are not intentional acts," she said. "That's so hard for the public to grasp."
Postpartum psychosis is a rare condition that generally affects women with extreme sensitivity to hormonal fluctuations and a history of mental illness, Stone said.

Dr. Lucy Puryear, who was a defense expert in Andrea Yates' murder case, has written on this subject over at Women in Crime Ink. I'd be interested to hear her take on the bill. See more background on the subject from Postpartum Support International.
MORE (3/24): From Postpartum Progress, and the Houston Press' Hairballs blog. And since I'd asked for Dr. Puryear's opinion, let me highlight these views she expressed in Grits' comments:

I don't know exactly what the bill says that has been proposed but I'm not sure I'm in favor of conducting a trial and then hearing evidence about postpartum issues that would mitigate the sentance. I AM in favor of what England has, which is when a mother kills a child less than one year of age, the mother is FIRST evaluated by mental health professionals and if found to be suffering from postpartum illness then she is given appropriate treatment. It IS a waste of time, talent, and money to put an otherwise well functioning woman through a lengthy and expensive court process when the issue is medical, not criminal. It would be akin to what is being proposed in Houston, a "mental health court" where persons with mental illness are treated and tried by those who understand the nature of mental illness and it's effect on behavior.

No, I am NOT saying that if you are mentally ill then you should never be held responsible for your behavior. I am saying that if you do not have "control" over your behavior due to your mental illness than your circumstances are different. It is like having a seizure. No one can stop a seizure from happening: the behavior is avolitional, including shaking, eye rolling, wetting your pants, and being confused for a time afterwards. And yes there is medication for seizures, and guess what? People who seizure also stop taking their medication, as do people with diabetes, or heart disease, or any other medical disorder that requires someone to be compliant and tolerate side effects.

I am ranting I realize.

Very few women who suffer from postpartum illness kill their children. Most kill themselves. And of those who do committ infanticide, most kill themselves when released from jail or the hospital. When they are well they can't live with the horror of their actions.

Well, I have to go help some more people with mental illness, otherwise you'd hear more from me. Thanks for listening.