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Sunday, February 01, 2009

Ind. Law - "2 Indiana legislators want longer sentence for killing fetus"

Jon Murray has this story today in the Indianapolis Star. Some quotes:

An Indianapolis bank shooting that resulted in the deaths of a teller's unborn twins has sparked legislation that would lead to harsher penalties for such crimes.

Two separate proposals would increase the sentences for killing fetuses, while carefully trying to avoid igniting an abortion debate.

The measures would add up to 55 years to the prison sentence of a person convicted of a crime against the mother, depending on the offense, no matter the fetus' stage of development or whether the suspect knew the woman was pregnant.

Such a change would fill what supporters see as a gap in Indiana law. The knowing or intentional killing of a fetus that has attained the ability to live outside the womb, commonly recognized as about seven months by state courts, already qualifies as murder.

But short of viability -- as with the twins of Indianapolis bank teller Katherin Shuffield, who was five or six months pregnant when she was shot -- the most severe charge available is feticide. The Class C felony carries a potential penalty of two to eight years in prison.

"I don't think two to eight years is sufficient for the taking of a human life," said Marion County Prosecutor Carl Brizzi, who worked with the two Indianapolis lawmakers who authored the bills.

Abortion-rights advocates have argued that giving fetuses separate legal status could jeopardize women's reproductive rights or put pregnant women at risk of prosecution for harmful behavior. At the same time, anti-abortion activists have held such laws up as a toehold in the fight to outlaw abortion.

Those are debates Brizzi hopes the bills avoid. "This has nothing to do with reproductive rights," he said. * * *

A legal expert voiced support for Merritt's bill because of its narrower scope. But he cited several potential problems in both proposals, including inconsistent penalties depending on the crime against the mother.

"That sort of bothers me," said Henry Karlson, a retired law professor at the Indiana University School of Law-Indianapolis. "Why should the life of a fetus be worth 10 years in one circumstance and 45 years in another?"

Last year, Karlson suggested that lawmakers increase the feticide charge to a Class A felony, which carries 20 to 50 years in prison.

But Merritt and Brizzi said the sentence enhancement option provides a heavy penalty without making the unborn child's death a separate charge, a route they figured was safer politically by avoiding the debate over when life begins.

"This seems to be the middle of the road," Merritt said.

Indiana is among 36 states with some form of fetal homicide law. If either pending bill becomes law, the state would join at least 19 others with statutes covering the earliest stages of pregnancy. * * *

The Shuffields have run into legal hurdles in a wrongful-death lawsuit accusing Huntington National Bank of ignoring a history of robberies and providing too little security at the branch, which since has closed. Because the Indiana Supreme Court has interpreted the Child Wrongful Death Act to apply only to "children born alive," their best hope to try such a claim is for the daughter who survived for a few hours after birth.

Their attorney, Kathy Farinas, said the couple planned to attend a Senate committee hearing Tuesday morning in support of another proposal, Senate Bill 341. It would expand the civil statute to cover viable fetuses but would apply only to new cases.

Here is the side-bar labeled "The Feticide Bills" prepared by reporter Murray:
State legislators from Indianapolis have authored bills that would create a sentence enhancement for the death of an unborn child at any stage of development. The penalty -- added to a sentence when prosecutors prove the defendant caused the unborn child's death while committing a crime -- would be equal to the crime's "statutory advisory sentence." The advisory sentence is that laid out in Indiana law before any mitigating or aggravating factors are considered that could shorten or lengthen a prison term.

In a murder case where the mother was the victim, the enhancement would add up to 55 years to the prison sentence.

» Senate Bill 236: [Sentence enhancement for feticide.] Applies to murder or felony murder cases. The sponsor, Sen. James W. Merritt Jr., R-Indianapolis, also plans to add attempted murder. Senate Judiciary Committee Chairman Richard Bray, R-Martinsville, said the bill will get a hearing as soon as next week.

» House Bill 1698: Similar to the Senate bill, but the proposal by Rep. Mike Murphy, R-Indianapolis, also covers a wide array of crimes. The bill, co-authored by David Yarde, R-Garrett, has not been set for a hearing in the House Judiciary Committee.

Some background. This ILB entry from April 30, 2008, is headed "Interesting juxtaposition of legal views this week." This ILB entry from June 30, 2008, is headed "Tragic cases often spur fetal homicide laws" The entry includes several useful links, including one to the National Conference of State Legislatures resource on "Fetal Homicde," last updated Nov. 2008.

More background. Senate Bill 341, referenced at the end of today's story, applies to wrongful death or injury of a child, not to the crime of feticide. It specifies that the law concerning the wrongful death or injury of a child: (1) does not apply to a legally performed abortion; and (2) applies to a fetus that has attained viability. Authored by Senators Becker and Steele.

The bill would redefine "Child" in the civil statute, IC 34-23-2-1, to include "a fetus that has attained viability (as defined in IC 16-18-2-365)."

If this rings some bells for readers, it may be because this week, in the case of In Savannah Linley Ann Nelson Ramirez, by her father, Stephen Ramirez v. James A. Wilson and Suzy-Q Trucking (see ILB 1/29/08 summary here, 5th case), plaintiff unsuccessfuly contended that "that S.R., a full-term and viable fetus, should be considered a “child” pursuant to IC 34-23-2-1."

The COA, in a divided opinion, said "no," citing the Supreme Court's 2002 ruling in Bolin v. Wingert, where, based upon the language of the statute, the Supreme Court ultimately concluded that "the legislature intended that only children born alive fall under Indiana's Child Wrongful Death Statue."

Posted by Marcia Oddi on February 1, 2009 08:55 AM
Posted to Indiana Decisions | Indiana Law