This is an extraordinary prosecutorial response. No parent has ever been convicted of a homicide offense in connection with their child’s mass shooting. Convicting the parents would break new ground.
But such a conviction could have unintended consequences during an era of unprecedented rates of imprisonment in the United States. Any time criminal law expands, it may be used to target Black Americans, already disproportionately represented in the growing U.S. prison population. Given common negative stereotypes about Black criminality and parental irresponsibility, holding parents responsible for their children’s felonies could easily lead to still more racially disparate prosecutions.
The Michigan prosecutor’s case against the parents
The prosecutor’s case against the shooter’s parents, James and Jennifer Crumbley, relies on the legal concept of “gross negligence.” Under Michigan law, to prove that a person committed involuntary manslaughter, the prosecution must show that the person’s gross negligence caused the death of another. In the 2018 case of People v. Head, the Michigan Court of Appeals wrote, “To prove gross negligence, a prosecutor must show: (1) Knowledge of a situation requiring the exercise of ordinary care and diligence to avert injury to another. (2) Ability to avoid the resulting harm by ordinary care and diligence … . (3) The omission to use such care and diligence to avert the threatened danger.”
The defendant in Head stored a short-barreled shotgun in a room where he allowed his children to play unsupervised; playing with the shotgun, his 10-year-old daughter shot and killed his nine-year-old son. The court upheld his conviction for involuntary manslaughter, reasoning that the danger of a loaded shotgun to young children was obvious and the tragedy could easily have been averted.
The prosecution’s case against the Crumbleys is based on more than just the alleged parental failure to lock a gun safely away. The charges mention a number of moments when the pair neglected opportunities to intervene and prevent their son Ethan from committing murder, attempted murder, terrorism and other crimes with which Ethan is being charged as an adult.
How might such an expansion of parental criminal responsibility — regardless of whether Michigan courts uphold this — be put to use in cases involving defendants who, unlike the Crumbleys, are racial minorities?
Mass incarceration and the criminalization of Black parents and children
Americans live an era of mass incarceration, with rates of imprisonment that are unique in the history of the United States and set it apart from other nations. Michelle Alexander’s influential book The New Jim Crow brought mass incarceration into popular consciousness. Alexander reported on racial disparities within the rising U.S. prison population and contended that these result from laws and institutions designed to subjugate people of color. Ethnic studies scholar Dylan Rodriguez has suggested that “targeted incarceration” might be a more apt description.
As law professors Dorothy Roberts, Michele Goodwin, Kristin Henning and others have documented, among those targeted are Black children and parents. Poor Black women are disproportionately prosecuted for drug and alcohol use during pregnancy. White and Black women use drugs at roughly the same rate, but Black women are more likely to be reported to child protective services.
Black children are more likely to be perceived as older than they are and to be charged with crimes as adults. So-called “sagging” ordinances target Black youth fashions, with at least one jurisdiction holding parents criminally liable if they “willfully allow” their child to appear in public with underwear visible. Curfew laws proliferated in the 1990s because of stereotypes about Black youth violence; many of these also branded parents as criminals if they failed to keep their children off the streets after hours.
Prosecutors could use this newfound approach to target Black children and their parents
If the Crumbley prosecution expands law enforcement’s power to charge parents for their children’s crimes, law enforcement officials who share widely held implicit biases against Black children and parents could easily choose to use that power disproportionately against racial minorities. Racial minorities are more at risk for gang involvement, and gang initiation often involves acts of violence. Prosecutors might target Black parents who fail to identify warning signs in advance and don’t intervene before someone gets hurt or killed.
Oakland County prosecutor Karen McDonald’s motivations for bringing charges against the Crumbleys may have nothing to do with race. But historically, law enforcement officials disproportionately use criminal law to break up Black families, whether by incarcerating parents or channeling Black children into the juvenile justice system, which, like the adult prison system, disproportionately incarcerates and supervises children from racial and ethnic minorities. If officials want to avoid contributing to this problem, they may wish to consider alternatives.
There are alternative policy responses to this tragic shooting
So what are the alternatives to charging the Crumbleys with involuntary manslaughter? If convicted, Ethan Crumbley may spend the rest of his life in prison. Even if his parents aren’t convicted under Michigan criminal law, they may be held civilly liable for negligent supervision.
Further, last spring, the Michigan legislature considered joining 30 other states and the District of Columbia in enacting a safe-storage law that would penalize parents for failing to secure weapons that are later used by children to commit crimes. A Michigan legislator has called for reconsideration of the safe-storage law, and Michigan Attorney General Dana Nessel supports it.
Safe-storage laws are narrowly focused on parents who fail to secure weapons that are later used in a child’s crime. That specificity may make them less likely to be used for racially targeted prosecution; they’re just not broad enough to prosecute parents for the crimes of their children more generally. As a result, they may help prevent mass shootings without handing prosecutors power that can be deployed against marginalized people long after national attention has shifted from Oxford High.
Evan Bernick (@evanbernick) is an assistant professor of law at the Northern Illinois University College of Law, where he teaches criminal law and procedure.