The first step is the Provability
evaluation. Can a charge be filed? Florida law defines child neglect as:
A caregiver’s failure or omission to provide a child
with the care, supervision, and services necessary to maintain the child’s
physical and mental health, including, but not limited to, food, nutrition,
clothing, shelter, supervision, medicine, and medical services that a prudent
person would consider essential for the well-being of the child. …
In most situations mere negligence
is not enough to warrant criminal liability. Florida law calls this sort of
negligence “culpable negligence.” Florida’s child abuse statute requires that
there must be culpable negligence before the parent is criminally liable. When
culpable negligence is an element of the crime, juries receive the following
instruction:
Each of us has a duty to act reasonably toward
others. If there is a violation of that
duty, without any conscious intention to harm, that violation is
negligence. But culpable negligence is
more than a failure to use ordinary care toward others. In order for negligence to be culpable, it
must be gross and flagrant. Culpable
negligence is a course of conduct showing reckless disregard of human life, or
of the safety of persons exposed to its dangerous effects, or such an entire
want of care as to raise a presumption of a conscious indifference to
consequences, or which shows wantonness or recklessness, or a grossly careless
disregard for the safety and welfare of the public, or such an indifference to
the rights of others as is equivalent to an intentional violation of such
rights.
The negligent act or omission must have been committed
with an utter disregard for the safety of others. Culpable negligence is consciously doing an
act or following a course of conduct that the defendant must have known, or
reasonably should have known, was likely to cause death or great bodily injury.
When a parent is neglectful, does it
rise to the level of culpable negligence? If not, there is no criminal liability.
If so, then the next question is did the neglect cause any harm? In most cases
of neglect, the law follows a sort of “no harm, no foul” philosophy—but not in
cases of child neglect. If no harm was done, then the parent is merely guilty
of a third degree felony punishable by up to five years imprisonment. If the
child suffered great bodily harm, permanent disability, or permanent
disfigurement the parent is guilty of a second degree felony punishable by up
to fifteen years imprisonment. If the
child dies as a result of culpable negligence, then the crime is manslaughter
of a child, it is a first degree felony, and the penalty can be up to thirty
years imprisonment. Fla.Stat. 782.07(3).
Where the decision gets difficult
is trying to decide how much negligence is culpable negligence. Here are some hypothetical
cases:
(1) A father with a
borderline IQ is giving his child a dose of medicine. The child is very sick,
and the father reasons “If the prescribed dose is good, then double the
prescribed dose must be twice as good, and triple the does must be three times
as good.” He gives the child a whopping dose of the medicine and kills it.
(2) A mother loves to sleep
with her newborn infant. She has been warned not to do this because she is such
a sound sleeper. She does it anyway. She rolls over onto the child and smothers
it.
(3) A mother driving on a
busy street sees her ex-husband and decides to give him the one-finger salute. She
holds her arm out the driver’s window for maximum visibility, yells at him, and
looks intently in his direction to see if he notices. While her attention is
distracted, she rear-ends a log truck and her child, who is not restrained, is
killed.
Are these situations where the
neglect rises to culpable negligence? Would an unbiased jury which properly
follows the law return a verdict of guilty against the parent? If so, you move
to the next step in the charging decision, the Propriety evaluation. Do not
under any circumstances, however, make a snap decision. Think about the facts,
research the law, review all the evidence, determine what evidence is going to
be admissible, determine what evidence is going to be inadmissible, and then
you’ll be in a position to make an informed decision.
In some cases, even though a crime
has technically been committed, and even though a jury would find the defendant
guilty, the ends of justice are better served by not prosecuting. My favorite illustration
of this point comes from a case I tried over 40 years ago when all traffic
offenses were crimes. I defended a man who didn’t stop at a railroad crossing
and got run over by a train. His offense? Failure to yield right-of-way to a
train. In my book, failure to yield right-of-way to a train is a self-punishing
offense, but just as soon as my client got out of the hospital, he was
arrested. Justice was done in the end, however, when the jury returned one of
the fastest not guilty verdicts I ever saw.
I always had mixed feelings about
prosecuting parents who negligently injured or killed their children. Surely
they had broken the law, but if they were conscientious parents they were just
as surely suffering a punishment far worse than any the law could mete out. I
want to “go outside the crime scene tape” when investigating a crime and making
a charging decision. What are the surrounding circumstances and how do they
impact the case? In the case of criminal child neglect, I wanted to know more
than just what happened when the crime occurred. Sometimes it only takes a split
second, and your life is irrevocably changed. I wanted to know more about the
parent than what he or she did in a single interlude of inattentiveness. I
wanted to know the family history. If the negligence was an aberration, that might
call for one decision. If it was part of a general pattern of neglect, that
would call for another.
In the third stage of the charging
decision, the Prudence stage, you ask two questions: What sort of a disposition
does justice require? What is the best charge I can file to insure that I’m
going to get that just disposition?
I’ve discussed these three
decisions (Provability, Propriety, & Prudence) sequentially because they are
easier to discuss one at a time, but they are like the Twelve Steps of AA. Just
as the Twelve Steps can be worked on out of sequence, the three charging
decisions can be (and usually are) worked on out of sequence. And you don’t have
to consider the decisions one at a time; you can work on all three of them
simultaneously.
Making the charging decision is
the most distinctive part of a prosecutor’s job. And if you’re conscientious,
it’s the most difficult part of the job. Sometimes I’ve been able to make an
immediate decision to file or not file. Other times I’ve agonized over what
decision to make. And after the case was over, I’ve agonized about whether I
made the right decision. I suspect that some of those decisions will bother me for the rest of my life.
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