Public opinion about Gov. Andrew Cuomo is at a low ebb—he is currently awash in two independent scandals. This article, though, is about the nursing home issue. Not the harassment spectacle (which, I personally believe, he simply won’t be able to weather). Still, even though I’m clearly not a supporter of the Governor, prosecutorial discretion—the valuable practice of prosecutors often using their discretion to decline cases—suggests that there is no “criminal” case worth pursuing regarding the nursing homes.

As important background, some tabloids argue that, despite applauding himself when the pandemic was at its height last year, Cuomo actually caused the deaths of many elderly nursing home residents. How? By directing hospitals—in order to make room for COVID-19 patients who required beds—to send infected patients, as long as they were “medically stable,” to nursing homes that, no one questions, house medically-vulnerable populations. Many believe that the decision, even though consistent with CDC policy (as Cuomo maintains), would invariably endanger the nursing home population. A Sophie’s Choice—these endangered in exchange for those! No one would want to be faced with having to make that critical decision to keep asymptomatic patients in hospitals, rather than dispatch them to nursing homes to make room for those individuals who were symptomatic and possibly on the verge of being in extremis.

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