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40 Wayne L. Rev. 201 (1993-1994)
Negligent Homicide Prosecutions Stemming from Child Passenger Restraint Infractions: A Limit to Prosecutorial Discretion

handle is hein.journals/waynlr40 and id is 213 raw text is: NEGLIGENT HOMICIDE PROSECUTIONS STEMMING FROM CHILD PASSENGER RESTRAINT INFRACTIONS: A LIMIT TO PROSECUTORIAL DISCRETION I. INTRODUCTION During the past decade, prosecutors across the country have repeatedly attempted to sustain criminal charges against drivers, usually parents, whose failure to secure children in an automobile child restraint system mandated by law has contributed to the death of a child. To date, the majority of these charges have been dismissed, pleaded down or pleaded out. Those which have been fully tried have ended in acquittal. Still, media reports suggest that not only will such charges continue to be brought, but also that there is strong belief among many prosecutors that these charges are both proper and winnable.' Some critics, on the other hand, submit that these indictments are the misguided efforts of well meaning but over zealous prosecutors. More belligerent critics hint that the charges are the products of sanctimonious crusaders or racist, publicity-hungry politicians who abuse both prosecutorial discretion and the legislative intent of the child restraint laws.2 It is a basic tenet of criminal law that a prosecutor has broad discretion in deciding whether to initiate a prosecution and, if so, what charges to file.3 This discretion is not, however, without limits.4 For instance, when two statutes, one a felony and the other a misdemeanor, cover the same subject matter, charges must be brought under the more specific enactment.5 However, when 1. Rosalind Resnick, Car-Seat Trial Ends, Leaving a Legal Void, NAT'L L.J., May 20, 1991, at 8. 2. Id.; see also Rick Bragg & Susan Benesch, A Question of Guilt, ST. PETERSBURG TxmS, Apr. 28, 1991, at IA; Misplaced Zeal, NAT'L L.J., May 20, 1991, at 16. 3. People v. O'Shea, 385 N.W.2d 768, 771 (Mich. Ct. App. 1986); see also 63A AM. JUR. 2D Prosecuting Attorneys § 24 (1984). 4. People ex rel. Leonard v. Papp, 194 N.W.2d 693, 698 (Mich. 1972). 5. People v. Shaw, 183 N.W.2d 390, 391 (Mich. Ct. App. 1970), leave to appeal denied, 385 Mich. 760 (1971).