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Hot Car Deaths: Why Do Parents Still Face Prison for a ‘Normal’ Memory Lapse?

baby in car seat

Photo by Henry Rose Photography courtesy

In late June, 38-year-old Nicole Engler unintentionally left her only child to die of hyperthermia in a hot car. Hours later, tearing her hair out and begging police to let her commit suicide, she was in the county jail, facing second-degree manslaughter charges. Her attorney picked up the phone and called neuroscientist David Diamond in Florida to ask for his help—and for the 19th time in his career, Diamond agreed to tell a court why parents and caretakers lose awareness of children in the back seat of a car.

Of the average 37 cases of child hyperthermia deaths each year, the majority result from what are called “prospective memory” failures, rather than willful neglect or negligence, according to Diamond. Other scientists and child safety advocates say that widespread ignorance of how our memory system works has thwarted prevention efforts, and kept avoidable tragedies under the sole purview of criminal courts. Diamond claims the explanation he’s developed amounts to “textbook science.” He once called it “forgotten baby syndrome,” but now says this is a misnomer. “It’s no more a syndrome than ‘forgotten cell phone’ is a syndrome,” he said in an interview with The Crime Report. “It is a normal but tragic form of forgetting.” The phenomenon attracted national attention in 2009, when Gene Weingarten of the Washington Post detailed the brutal aftermath of similar cases of children who died in hot cars in a story called Fatal Distraction: Forgetting a Child in the Backseat of a Car is a Horrifying Mistake. Is it a Crime? Weingarten won a Pulitzer for his story, which he had hoped would save babiesMy goal,” he explained later, “was to convince people that these cases are accidents, terrible accidents, to let it be known that these parents aren’t monsters, and to raise awareness so it happens less often.” But in the nine years since Fatal Distraction appeared, another 204 children have died under similar circumstances, raising the total number of these accidental deaths since 1990 to over 460, according to data shared with TCR by the Kansas-based nonprofit Kids and Cars. Ironically, the phenomenon emerged following recommendations aimed at protecting children in cars. In the early 1990s, the introduction of passenger side airbags made it unsafe to put small children in the front seat, and several states passed laws requiring children to ride in the back.

air bags and the crime report
Table courtesy

Since that time, far more children have died of heatstroke in cars than were ever killed or injured due to overpowered airbags. Twenty-one states have passed legislation making it illegal to leave children unattended in a car, but these laws haven’t made a dent in accidental fatality rates. It has, however, made it easier to convict someone who left their child behind accidentally. Since 1990, at least 146 parents and caretakers have been convicted on charges ranging from murder to negligence in heat stroke fatalities after apparently forgetting their child was in the vehicle, according to Kids and Cars. In the nine cases where he’s provided testimony, Diamond’s arguments have been persuasive: only two trials have resulted in a guilty verdict, and neither parent wound up serving time in prison. Yet there has been little meaningful response from policymakers, according to Janette Fennell, founder of Kids and Cars, an organization that tracks how often children are injured, abducted, disabled, and killed because they were left unattended in or around a vehicle. Although child hyperthermia deaths are relatively rare, Fennell argues one reason they are treated far more severely under the law than other, more common, accidental injuries may be due to the moral outrage and public cries for justice in response to the perception of the “visceral” suffering of a child trapped inside a hot car. “If you look at drownings compared to some of these cases, they’re not prosecuted at the same rate,” she said in an interview “And it’s the same thing. In one instant you can forget to take [your child] out of a car, and if you turn your back one instant they can end up in the pool.” Fennell also believes that parents are demonized as a kind of defense mechanism. “You’re so repulsed by what’s happened that if you make a monster out of that person, then you know you’re not like that. They’re a monster because they forgot their child— ‘I’m a good parent, I’m not a monster, so it can’t happen to me,’ ” she told TCR. TCR interviewed six neuroscientists and cognitive psychologists who say widespread misconceptions about memory prevent parents from taking appropriate precautions. They say most parents are not aware of the real risk that they might forget to drop their child off at daycare on the way to work, and suggested simple measures parents can take to help prevent these tragic memory lapses. “My sense is that many simply don’t think that taking your child to daycare is vulnerable to forgetting,” said Gil Einstein, a psychologist at Furman University who has dedicated his career to studying how we remember—and forget—things we intend to do in the future. “The importance of it lulls them into not engaging in behaviors that will ensure remembering.” “You can’t expect people to know this unless they’re educated,” adds Mark McDaniel, professor of Psychological and Brain Sciences at Washington University. McDaniel and Einstein are credited as being two of the most influential researchers in the field of prospective memory studies, which focuses on our ability to carry out things we intend to do in the future. “Most people would think— no, I would never forget that. But in fact, memory theory says yes, you could forget that.” In the meantime, criminal law appears to hold people to a standard of care that could be possible, given the right public health and policy response—but that currently doesn’t exist.

The Study of Forgetting

Fourteen years ago, a reporter called Diamond out of the blue asking him to explain how parents can forget their children in the back seat. He remembers saying: “You can forget a lot of things in life; you just don’t forget a baby in a car.” At the time, Diamond was a highly regarded neuroscientist at the University of South Florida, who had spent much of the previous two decades engaged in government-supported research into the effects of Post-Traumatic Stress Disorder (PTSD) on the brain and memory. One of his areas of expertise was forgetting, he said; but he was nonplussed by the reporter’s question, and “reacted more as a parent than as a scientist.” Nevertheless, he found the question intriguing enough to investigate further, eventually dedicating a large part of his research efforts to studying this phenomenon. One of the biggest obstacles to preventing such tragedies, he believes, is the reluctance of many parents to believe it could happen to them. “Because we are in denial that we would ever forget a child, we don’t take any measures to remind ourselves,” Diamond said. “We almost feel like we would be negligent to have to remind ourselves.” It comes down to the fragility of our prospective memory system, he explained—that part of our memory responsible for the things we intend to do in the future, as opposed to retrospective memory (recall of past events). According to Diamond, prospective memory is processed by two brain structures: the hippocampus, which stores all new information; and the prefrontal cortex, which is “essential to making plans for the future.”

David Diamond

David Diamond/ University of South Florida

Cognitive psychologists Mark McDaniel and Gil Einstein agree that this type of memory is both misunderstood and highly susceptible to failure; and that it can happen to the most loving and attentive parents. An overview of fatal incidents shows that fathers and mothers are equally prone to this kind of lapse. While the facts of each case are different, Diamond, who has interviewed parents and studied police reports, says he’s noticed two circumstances that always exist in cases where parents forget their children. First, there is some interruption in the parent’s usual routine—some deviation, however slight, that overlaps with his or her habitual driving route. “Kids are never, and I mean never, in my experience, forgotten when the driver follows a route that always includes taking the child to daycare,” he said. Even the act of switching from one lane to another can be enough to activate the “habit brain system,” Diamond explains, centered around the basal ganglia, which then “shuts down the conscious awareness of the child” and automatically takes the driver to work instead.

A ‘Classic’ Case

The case of Nicole Engler, said Diamond, is “absolutely classic.” Nicole’s husband Peter usually brought his daughter to the Cobb Street Children’s Learning Center in Roseburg, Ore., each morning. But one morning this June, Nicole saw her husband asleep after his night shift as an Emergency Medical Technician, and wanted to give him a break. She gathered Remi, put her into her car seat, and headed out to drop her at daycare on her way to work. Nicole drove across town following the same route she took six days a week, and automatically began thinking about her job as a pediatric nurse, according to her attorney. “She normally didn’t bring her child to daycare, her habit system took over, she lost awareness of the child, she exited the car, went to work. I mean, there’s no complication to her case. It’s absolutely straightforward,” said Diamond, who interviewed her at length. “It’s that quick that the habit memory system takes over and imposes its will to take the person on a well-traveled (childless) route.” At 4:30 pm, after a full day of treating patients, Nicole walked out to her car and found Remi, lifeless. Over the years, Diamond also discovered that people who forgot their children—including those who had near-misses—felt sure they had brought their child to daycare. “I’ve talked to so many parents,” he told The Crime Report. “They say, ‘Well I’m sure I must have taken my child to daycare. Because where else can my child be?’ The brain takes that logic statement, and then creates a certainty.” TCRfound over half a dozen fatal cases in which the same parent who forgot their child in the back seat went to pick them from daycare at the end of the day. The same devastating scene unfolds in each story: In Mississippi, a mother went to the Little Footprints Learning Center to pick up her two-year-old girl, only to be told she had never been dropped off. The mother found her child strapped into her car seat, dead of heatstroke. In Texas, a mother went to pick up her one-year-old son from the Kreative Kids Learning Center, but the daycare workers said she had never dropped him off. She ran back to the car, and found the boy dead in his rear-facing car seat. Similar incidents have occurred in North DakotaVirginiaMissouriMontreal, and Negev, Israel. “This is actually studied in a laboratory,” Diamond said, referring to what’s known as the Deese-Roediger-McDermott (DRM) paradigm, a method of experimentation developed by cognitive psychologists in 1995 that allows researchers to create false short-term memories in test subjects. These are not the artificially created “repressed memories” of childhood sexual abuse that have a checkered history in the courts, he clarifies. “What we’re talking about here [is] when someone makes an assumption that something happened, that assumption becomes a memory.” Like other parents—some of whom were charged with a crime, others not—Nicole was sure that Remi was exactly where she was supposed to be. At lunch time, stopping at a drive-through coffee shack, she chatted with baristas who asked about her daughter. Nicole told them Remi was at daycare. Two hours after discovering her tragic mistake, Nicole was in the Douglas County jail, begging to take her own life. Her attorney, David Terry, was unable to discuss the charges against her at their first meeting. “She was alternating between quiet sobbing, hysterical weeping, and putting both hands deep into her hair and violently ripping hair out of her scalp,” He told TCR. Nicole was on placed on suicide watch until her arraignment. A grand jury hearing has been scheduled for October. In some cases, after interviewing a defendant, Diamond has presented his theory directly to prosecutors, he told TCR, adding that “there are quite a few cases in which the DA has dropped charges as a result of my involvement.” Douglas County prosecutors declined to comment on Nicole’s case; but according to her attorney, second-degree manslaughter charges still stand. Diamond will testify before the grand jury after her next court date in October. As memory researchers, McDaniel and Einstein have a similar explanation as to how responsible, caring people forget children in cars. The problem is not bad parenting, they say. “I think it’s a matter of education. It’s a matter of understanding that the prospective memories are fallible, and that there are certain things that can be done to avoid these [failures], McDaniel told TCR. “I wouldn’t say that the general public knows these things.” “So I don’t see how anyone’s culpable,” he added. “They’re only culpable in that they have a fallible metamemory, which we all do.” Unlike Diamond, Einstein and McDaniel have not presented their findings in court cases. Rather, they’ve tried to use the media to raise public awareness. “What we’ve advocated is you try to put your briefcase in the back seat so you’ve got to open the back seat and then you’ll see the kid,” said McDaniel. “Or, you try to put the diaper bag in the front seat, because then that will be a cue to remind you— ‘oh yeah, the baby’s back there.’” According to Uri Maoz, who also studies the interface of law and neuroscience, “attention, as far as we know it, doesn’t split. You can pay attention to one thing at a time.” “When you’re driving you’re supposed to be aware of the child in the back,” Maoz continued. “You’re supposed to be aware of the traffic around you, you’re supposed to be aware of the passenger next to you—you cannot be aware of everything. “I think that’s just a false expectation of parents of themselves, and potentially of society from parents.”

The Public Policy Dilemma

Considering the amount of public attention to the phenomenon, why has so little of the research into prospective memory been brought to bear on these cases? One reason, scientists told TCR, is a reluctance to testify. Einstein said if he were asked, “I’d probably say no, because of how brutal lawyers can be with the cross-examination.” Diamond said another issue is the lack of funding for further research. “I once presented the science of children forgotten in cars at a major neuroscience meeting, with over 40,000 scientists in attendance,” he told The Crime Report. “Almost no one showed up.” “Children forgotten in cars is not a ‘hot topic’ in funded research. It didn’t surprise them, and it didn’t raise new issues in the study of brain and memory.” Moreover, public opinion can make such cases difficult to defend. Nicole Engler’s family and colleagues turned out to support her after Remi’s death. They came to the courthouse, and also hung ribbons around town in remembrance of the little girl. But there were also those who immediately called for punitive justice. As ribbons went up, some people went around taking them down. Such reactions have made it difficult to develop the kind of comprehensive public awareness campaigns or legislative measures that advocates believe are necessary. Intuitively, it seems that we would be less likely to lose awareness of a beloved child than to forget our keys, or drive off with a cup of coffee on the roof of the car. “The problem is the brain at times doesn’t distinguish between a child and other things in life,” Diamond explained. This misperception could be the very reason children still die in hot cars at the same rate they did a decade ago. Multiple county-level campaigns remind the public of the danger, with messages such as “don’t leave me behind; don’t forget, double check.” But these don’t teach parents appropriate measures to prevent memory lapse, according to experts. “The campaigns should focus on doing things that will force you to look in the backseat,” Washington University memory researcher Harry Roediger (one of the creators of the DRM paradigm) told The Crime Report, “(Things) like put your keys under the child seat. Or your cell phone. Or your briefcase… or all three.” The National Highway Transportation Safety Authority does have an annual heatstroke awareness campaign called Where’s Baby? Look Before You Lock. The full promotional materials include some prompts recommended above, but don’t communicate how and why every parent is at risk of forgetting. Having worked closely with Diamond, Kids and Cars has distributed over one million fliers over the past few years to hospital birthing centers, parent education classes, obstetricians’ offices, and even car seat technicians, said Amber Rollins, the organization’s director and volunteer manager. Recently, they’ve begun contacting local public health departments one by one. As a small nonprofit, she told TCR, they are just “scratching the surface.” “It needs to be an effort like Safe to Sleep,” Rollins added, referring to the multi-agency public information campaign about Sudden Infant Death Syndrome (SIDS) that launched in the mid-1990s. “They won’t let you leave the hospital without being educated about how your baby needs to be sleeping in a safe environment—on their backs, not on their tummies.” Since the start of the campaign, SIDS deaths have decreased by 50 percent, according to the National Institutes of Health. “We need to reach parents at the very beginning of their child’s life, or even in the pregnancy stage because that’s when their most receptive to safety information,” said Rollins. “After they’re born, you’re in the chaotic stage where you’re not sleeping—everything is so focused on taking care of the baby and trying to keep up.” The auto industry knows we are human—and therefore prone to forgetting, Fennell said, pointing out that our cars are filled with reminders to turn off the lights or take the keys out of the ignition. The moment laws were passed requiring children to ride in the back, new technology should have been added to vehicles, she told TCR. “I almost cried the other day,” she added. “I got gas, I’m ready to pull off, and I got a reminder that the fuel door was left open.” The Hot Cars Act, first introduced by Rep. Tim Ryan (D-Ohio) in 2016, would require all new vehicles to come with a child safety alert system similar to seat belt reminders, “with flashing symbols and warning sounds in the driver’s line of sight by the speedometer.” But the bill was never brought to a vote, following objections from the Alliance of Automobile Manufacturers, which claimed that it would be a costly measure, and argued that only 13 percent of new car buyers have children under six. The bill was reintroduced in 2017, but wound up tied to another bill on driverless cars (the Self Drive Act). Kids and Cars isn’t pushing the combined bill, citing widespread safety concerns over the driverless car legislation. While the stand-alone bill still exists, said Rollins, no one wants to sign onto it when it could be moving through the Self Drive Act. Recently, Nissan announced it will have a new rear door alarm in all of its vehicles by 2022; and GM introduced a similar feature in a majority of its 2018 models. If the back door was opened during a trip, but not reopened when the car is parked and ignition turned off, the horn will go off. Hyundai redesigned its 2019 Santa Fe SUV with technology that goes one step further, with rear seat motion detectors in addition to a door alarm. But in the absence of widespread public understanding that anyone can experience a catastrophic memory failure, there is every reason to expect these deaths to continue at the same rate. Why buy an expensive new car, or any other technology, if only criminally negligent parents can forget a child? As a scientist, Diamond acknowledges being ill-prepared for the courts. In order to develop a legal theory as to why each person forgot a child, he needs to interview each parent and caretakers, “and have them relive the events of the day in which the child died.” “Each interview is a gut-wrenching experience for me,” he told TCR. "[It’s] something for which I have no training. The interviews are often interrupted by long periods in which the parents hysterically cry, with such a deep, painful, agonizing suffering, that I can’t help but cry along with them.”

Victoria Mckenzie

Victoria Mckenzie

He wants them to know how normal, loving and attentive parents and caretakers can forget their children in a car. And, he wants to keep them from being incarcerated. “My feeling is they will live in their own personal prison for the rest of their lives.”

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