dissenting.
I respectfully dissent. The indictment charging Boyer with reckless conduct in violation of OCGA § 16-5-60 (b) alleged that she:
Knowingly and intentionally endanger [ed] the life of another, to wit: [ ] by consciously disregarding a substantial and unjustifiable risk that [her] act would cause harm or endanger the safety of another; said act being: roughly handling [the] victim.
As noted in the majority opinion, because this matter is reviewed following the trial court’s denial of Boyer’s motion to quash, the underlying facts are not developed. However, the State has represented to this Court that it expects the evidence to show that Boyer, a day care center employee, was supervising a room of twelve-montholds during their nap period; that one of the children would not sleep and kept “popping up”;2 that Boyer lifted the child and “plopped her on her belly” and dragged the child’s sleeping mat a short distance; and that when the child “kind of popped up again . . . Boyer pushed her down by the back.” There is no allegation that the child appeared to have been injured or even upset by Boyer’s actions. In fact, the *706child did not cry or make any sounds of protest. Nor is it alleged that Boyer’s actions caused any marks or discoloration to appear on the child’s skin, or otherwise harmed the child.
1. The majority is, of course, correct that Boyer’s vagueness challenge to OCGA § 16-5-60 (b) must be evaluated on the facts of this case.3 However, the statute’s prohibition against “consciously disregarding a substantial and unjustifiable risk [of harm] or endanger[ing] the safety of [another] ... in gross deviation from the standard of care which a reasonable person would exercise in the situation,”4 does not provide fair notice that it prohibits the type of conduct engaged in by Boyer. “[T]he principle that due process requires . . . criminal statutes [to] give sufficient warning to enable [individuals] to conform their conduct to avoid that which is forbidden is one of the great bulwarks of constitutional liberty.”5 This Court and the United States Supreme Court have consistently equated the “sufficient warning” of prohibited conduct required of criminal statutes to the provision of “fair notice” that by engaging in such conduct, one will be held criminally responsible.6 Of course, every mere uncertainty as to a statute’s applicability will not render it void for vagueness.7 However, it is beyond question that the Due Process Clause requires that the law give a person of ordinary intelligence fair warning that her specific conduct is forbidden, so that she may conduct herself accordingly.8 “ All persons are entitled to be informed as to what the State commands or forbids.’ ”9
Bearing these principles in mind, I believe it is obvious that the Reckless Conduct Statute did not provide Boyer with fair notice that she could be held criminally responsible for her actions at the day care center. Neither ordinary intelligence nor common sense dictate that a statute forbidding the conscious disregard of a substantial risk in gross deviation of an acceptable standard of care encompasses a prohibition against “plopping” a 12-month-old down on its stomach, and, when the child “popped” up again, “pushing it [back] down” — with force that does not even hurt the child or cause the child to *707become upset. In fact, it would appear that section 16-5-60 (b) “forbids no specific or definite act,” and fails to “fix ... an ascertainable standard of guilt,”10 thereby indicating that it is impermissibly vague. 11
If, as the majority holds, the Reckless Conduct Statute did provide Boyer with fair notice that her conduct was prohibited by criminal statute, it bears noting a few of the myriad other situations to which the Statute’s prohibitions will apply. Because the Reckless Conduct Statute is most often applied to women who care for children,12 it is meaningful to look at its scope in the context of child rearing. If Boyer’s “plopping” and “pushing” are criminal actions under the Reckless Conduct Statute, then the same must be true for moderate corporal punishment, even where administered by a parent or custodian. After all, despite the existence of effective psychological methods of disciplining children, physical punishment and restraint remain common methods of control used by many parents. Parents’ use of physical discipline is influenced, in some instances, by family custom, religious beliefs, social class, and resources. Should such parents risk criminal penalties if they paddle their child, or “pop” their child on the back of the head with an open hand? Some would characterize such means of discipline as far too severe, while others would simply label them “no-nonsense.” To some in the former group, these means of physical discipline create “unjustifiable risks of harm” and “endanger a child’s safety” — acts that are expressly criminalized by the Reckless Conduct Statute. To some in the latter group, that idea is preposterous. However, after reading the Statute, neither group can be certain whether, by physically disciplining a child in a firm but non-abusive manner, they have subjected themselves to the possibility of prosecution under the Statute. As explained above, fundamental notions of due process forbid such ambiguity in a criminal statute.13
2. As applied to Boyer’s case, the Reckless Conduct Statute also is unconstitutionally vague for a second, equally compelling reason. The Statute also violates the prohibition against vague laws because it fails to provide explicit standards for those who would apply it, and *708is susceptible to arbitrary and selective enforcement.14 Criminal statutes must set forth sufficiently definite standards for those responsible for their enforcement “so that basic policy matters are not impermissibly delegated ‘to policemen, judges, and juries for resolution on an ad hoc and subjective basis [ ].’ ”15 The Due Process Clause prohibits statutes that, by avoiding the requisite definite standards, “ ‘allow the net to be cast at large, to allow [persons] to be caught who are vaguely undesirable in the eyes of police and prosecution.’ ”16
The Reckless Conduct Statute, as applied in this case, suffers from these very infirmities. The Statute lacked definite and explicit standards to guide its enforcement against Boyer. This is shown quite obviously by the facts of this case — Boyer’s “plopping” and “pushing” at the day care center were recorded on videotape. After authorities were notified of her purported “rough handling” of the child, several police officers were called to the scene, where they reviewed the videotape and examined the child. No arrest was made and Boyer was told she could continue her work at the day care center on that day. It was over three months after the incident occurred, after countless viewings of the videotape by law enforcement officers, that a decision was made to indict Boyer.
Clearly, authorities were unsure whether Boyer’s actions were in deviation of the statute, and thus were prohibited. That determination was made by law enforcement officials only after lengthy deliberation, and necessarily was based upon their own predilections and standards. Thus, the determination of whether Boyer took a “substantial and unjustified” risk was entirely dependent upon the subjective views of law enforcement officials. It is axiomatic that, because this is a nation of laws rather than individuals, criminal statutes proscribe specific conduct, not any individual’s perception of that conduct. As observed by the United States Supreme Court when declaring a federal statute unconstitutionally vague:
An attempt to enforce the [Statute] would be the exact equivalent of an effort to . . . penalize and punish all acts detrimental to the public interest when unjust or unreasonable in the estimation of the court and jury. . . . [The Statute] leaves open . . . the widest conceivable inquiry, the scope of which no one can foresee and the result of which no one can foreshadow or adequately guard against.17*709Decided February 22, 1999 — Reconsideration denied March 19,1999. Richard W. Shelton, Solicitor, for appellant. Sandra Boyer, pro se. Sheryl B. Jolly, Solicitor, Richmond County, Carmen D. Smith, Solicitor, Fulton County, Alvin G. Hollingshed, amici curiae.
As applied in this case, the Statute’s lack of definiteness about what risks are “substantial and unjustifiable” enabled law enforcement officials to “cast a wide net,”18 and ensnare an individual whose actions were deemed to be unjust and unreasonable only when viewed in retrospect, and only after considerable and subjective deliberation. This offends the constitutional prohibition against vague laws, and should not be sanctioned.
To conclude, the Reckless Conduct Statute, as applied to this case, both (1) failed to provide persons of ordinary intelligence with notice that it prohibits the type of conduct engaged in by Boyer, and (2) is vaguely worded so as to encourage arbitrary and selective enforcement by police, prosecutors, and juries, acting on an ad hoc basis. Therefore, I believe that the Statute as applied in this case offends fundamental notions of due process, and that the trial court correctly sustained Boyer’s demurrer. For these reasons, I respectfully dissent.
I am authorized to state that Presiding Justice Fletcher joins in this dissent.
A review of the record shows that by “popping” up, the indictment refers to the child’s lifting up of its head and torso while lying on its stomach.
Hall v. State, 268 Ga. 89, 91 (485 SE2d 755) 1997).
OCGA § 16-5-60 (b).
Rose v. Locke, 423 U. S. 48, 59 (96 SC 243, 46 LE2d 185) (1975) (Brennan, J., dissenting).
Hall, supra; Roemhild v. State, 251 Ga. 569, 572 (308 SE2d 154) (1983). See Rose, 423 U. S. at 49-50; Papachristu v. City of Jacksonville, 405 U. S. 156, 162 (92 SC 839, 31 LE2d 110) (1972); Grayned v. City of Rockford, 408 U. S. 104, 108 (92 SC 2294, 33 LE2d 222) (1972); Sabel v. State, 250 Ga. 640 (300 SE2d 663) (1983).
See Rose, 423 U. S. at 50.
Id.; Hubbard v. State, 256 Ga. 637, 639 (352 SE2d 383) (1987); United States v. Harris, 347 U. S. 612, 617 (74 SC 808, 98 LE 989) (1954).
Hall, 268 Ga. at 92, quoting Lametta v. New Jersey, 306 U. S. 451, 453 (59 SC 618, 83 LE 888) (1939).
United. States v. L. Cohen Grocery Store Co., 255 U. S. 81, 89 (41 SC 298, 65 LE 516) (1920).
See id.
See, e.g., Hall, supra.
Of course, this is to say nothing of the other issues raised by the application of the Statute to child discipline. For example, is it proper for the State to impose criminal penalties for widely-accepted, non-abusive means of child discipline? Because the disparate means of child discipline often correspond to cultural lines, would application of the Statute to this conduct raise equal protection concerns?
See Grayned, 408 U. S. at 108-109; Papachristu, 405 U. S. at 166-167; Roemhild, 251 Ga. at 572.
Roemhild, supra (quoting Grayned, 408 U. S. at 109).
Papachristu, 405 U. S. at 166 (quoting Winters v. New York, 333 U. S. 507 (68 SC 665, 92 LE 840) (1948)).
Cohen, 255 U. S. at 89.
Papachristu, supra.