It’s an issue that has polarized the American public—particularly parents—this summer: leaving kids in the car on a hot summer day.

Of course, it’s never advisable to leave a child in a hot car for any length of time. SaferCar.gov reports that cars heat up quickly—up to 20 degrees Fahrenheit in 10 minutes—and that a child’s body temperature rises much more rapidly—five times faster—than an adult’s. Under these conditions, heatstroke can easily occur, and a child could die.

But while it’s absolutely not a good idea, is it a crime? 

That is the question dividing the American public as several high-profile cases of children dying in hot cars have occurred this summer. Parents have accidentally left their children in their cars, where they perished from heatstroke.

No parent believes that this could happen to them. “How could any responsible parent forget their own child?” they say.

But a 2009 article from The Washington Post suggests that it can—and does—happen to any parent. It’s happened to the poor and to the wealthy, to the young and to the old, to mothers and to fathers. These otherwise seemingly loving, doting, attentive parents somehow forgot their children in the car.

According to the article, there are a few very important factors that contribute to this phenomena, which was unheard of twenty years ago.

First, in the early 1990s child seats were moved from the front passenger seat to the back of the car. This was after car-safety experts found that front airbags could kill children. Baby car seats were also turned to face the rear of the car.

Unfortunately, moving the child from the front to the back of the car literally made them “out of sight, out of mind.”

With this change, parents were relying entirely on their memory to determine whether or not they’d dropped their children off at daycare.

And the memory, it turns out, can be a very faulty thing.

David Diamond, a professor of molecular physiology at the University of South Florida and an expert on memory, explains in the article: “Memory is a machine and it is not flawless. Our conscious mind prioritizes things by importance, but on a cellular level, our memory does not. If you’re capable of forgetting your cellphone, you are potentially capable of forgetting your child.”

In situations involving familiar, routine motor skills—like driving—the memory can switch to autopilot. It’s why, for example, you may have driven home one day—only to realize once you’d reached your driveway that you had no memory of getting there.

When a person is stressed, sleep-deprived, or experiencing a change in routine, he or she is particularly vulnerable to lapses in memory.

Lawmakers are as divided as the public. In 19 states, it is illegal to leave a child unattended in a vehicle, according to the non-profit Kids and Cars. These states’ laws vary by the age of the child, the amount of time he or she may be left, and the punishment for the offense. In Colorado, there are currently no laws on the books specific to leaving a child unattended in the car, though there may be in the future.

If this horrible tragedy can happen to anyone—and it’s the result of failed memory, not bad parenting—how should the justice system treat the parents of children who have died?

The criminal defense lawyers at our firm would like to know what you think.