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The ?Rollover? Conundrum: To Charge or Not to Charge?

By Ashby Jones

What to do about “rollover” deaths?

That question is plaguing some prosecutors around the country, who don’t exactly know best how to handle situations in which a slumbering adult accidentally “rolls over” and suffocates to death a sleeping infant. Is it manslaughter? Criminal negligence? Or is it simply an accident that shouldn’t be punished?

The WSJ’s Chris Herring tackles the issue in the Journal’s weekly Law Journal column. He opens with the following pair of cases:

In March, a slumbering Indiana father accidentally suffocated his six-month-old son to death while both were sleeping on a sofa. Law-enforcement officials later determined that the man had used methamphetamine and smoked marijuana before falling asleep that night.

A month later, in Milwaukee, a one-month-old infant died while in bed with his parents and brother, possibly due to suffocation. Before coming home to sleep that night, the baby’s mother had had three drinks at a nearby bar.

The tragedies are similar, but the way law-enforcement officials handled them is not. In the pending Indiana case, the father, Darik Morell, was charged with neglect of a dependent resulting in death, a felony that carries a 20- to 50-year prison sentence. . . .

No charges, in contrast, were filed in the Milwaukee case, or in two other bed-sharing deaths in the area since March.

The main question, writes Herring: At what point does carelessness, absent malicious intent, become punishable by criminal law?

Experts say that often, there is no right answer. “Prosecutors have enormous discretion in these sorts of things,” says Dan Blinka, a criminal-law professor at Marquette University. “They can choose to see these as simply tragic accidents, or they can see them as homicides.”

Prosecutors are divided on how to apply the standard to bed-sharing cases or other accidental deaths, such as those that stem from auto accidents caused by fatigued drivers. (Click here, for instance, for a recent Washington Post story on a similar issue: What to do to the parents when a child dies in the backseat of a hot, parked car?)

Mike Dugan, a district attorney in Oregon’s Deschutes County who charged two parents with criminally negligent homicide, has drawn a fairly hard line on bed-sharing death cases: He will prosecute them when they involve alcohol or drugs. “I’m not telling people not to sleep with their kids,” he says. “But I am telling them that if you do it while you’re drunk or high and it results in a death, chances are we’re going to charge you.”

LB readers, this is an interesting one. Do you think prosecutors should go after all of these cases? None of them? Should they draw the line, as Dugan has, when drugs or alcohol are involved?

Photo: iStockPhoto

Full post as published by Law Blog - WSJ.com on July 30, 2009 (boomark / email).