DAVID SCHULTZ: Let me start by pointing out and saying that we’ve got pretty good science regarding how the pandemic is being spread and we have pretty good information regarding things that can be done to mitigate the spread. You know, mask wearing, social distancing, vaccinations and so forth. And that’s sort of the frame for the piece that I have here — is that we are letting elected officials off the criminal hook. You know, we think that what Donald Trump or De Santis or Abbott are just making political decisions where at the end of the day, the voters get to decide whether they support their choices or not.
And the point that I was making is that we shouldn’t be letting them off the hook. If we applied the same standards of criminal liability to let’s say here — governors — that we would apply to the rest of us in our private life, we could probably charge several of these governors with second degree manslaughter or other forms of unintentional, or maybe even intentional murder or manslaughter. So that’s the basic argument that we too often let elected officials — and I’m even going to say, if I wanted to push it further — we let CEOs of corporations similarly off the hook and don’t hold them criminally and personally responsible for their actions. And that’s the frame for the article that I wrote in Counterpunch a couple of weeks ago.
SCOTT HARRIS: In your recent article, professor Schultz, you talk about Florida law, particular a provision of Florida law that could be the jumping off point for accountability for Ron DeSantis and possibly other governors who are defying public health guidance and likely costing people’s lives.
DAVID SCHULTZ: You’re exactly correct. So let me just, again, set up a little bit of law here. Most of us understand that if I intentionally do something to hurt somebody — such as kill them, I could be held criminally responsible. So I pick up a gun because I want to shoot and kill somebody. We all understand that if I make an intentional decision to do it, but our law also has a whole framework of other situations where I don’t have to prove premeditation in order to hold somebody criminally responsible if somebody dies. We’ve got a framework of law, like gross negligence, negligence. For example, I can’t get in a car drunk, drive, kill somebody and then claim that I was too drunk to know what I was doing and therefore I can’t be prosecuted for murder. What the law says is that you are negligent in your behavior that you knew or should have known that what you were doing was wrong.
And we have other laws that hold people similarly criminally responsible if their actions — or in some cases, their omissions lead to the death of somebody else, and by omissions — negligence. So I key in, in Florida under second degree manslaughter law that basically says that in your actions, if you are grossly negligent, if you have failed to take an action that you should have taken that results in the life of somebody dying, you can be prosecuted and convicted of second degree manslaughter.
In our private lives, if you and I basically run through a bunch of examples to put in my piece — if I leave my child in the backseat of a car during the day and dies, I can’t say, “Oh, I forgot. I’m sorry.” No, the law is going to prosecute you. Again, there’s a whole bunch of other situations. For example, I can’t play Russian roulette with a gun, put it to a friend’s head, kill him and say, “Oh, we were just playing a game.”
None of this counts. So here, why do we let governors off the hook when their own Departments of Health or the CDC indicates to them, what’s causing the transmission? What could be done? What actions could be taken? And in this case, not only are they let’s say — negligent in not taking precautions — but they’re now taking the next step: Actively preventing schools or local governments from taking actions to protect people’s lives. My reading of Florida law, suggests that what DeSantis is doing right now would qualify as second degree manslaughter under Florida law.
