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Dead Children Make For Bad Laws: The Case Against “Caylee’s Law”

The negative public reaction to the verdict in the Casey Anthony trial has led, inevitably, to calls for new laws to address a supposed problem:

Lawmakers outraged over Casey Anthony’s acquittal have responded by proposing so-called Caylee’s laws that would allow prosecutors to bring felony charges against parents who do not quickly report missing children.

The new measures were triggered, at least in part, by an online petition that had more than 700,000 signatures Friday. Some questioned whether a new law would do any good because the circumstances of the Anthony case were so rare, but lawmakers in at least 16 states have already floated proposals reacting to the verdict.

“Casey Anthony broke new ground in brazenness,” said Florida state Rep. Scott Plakon, who is sponsoring the proposal in his state. “It’s very sad that we even need a law like this, but Casey Anthony just proved that we do as unfortunate as that is.

(….)

Florida’s proposal would make it a felony for a parent or other caregiver to not report a child under the age of 12 missing after 48 hours. It also makes it a felony to not report a child’s death or “location of a child’s corpse” to police within two hours of the death.

Had Florida’s measure been in place and Anthony been convicted, she could have faced another 15 years behind bars.

Other states are considering similar measures and the online petition at Change.org, started by an Oklahoma woman, calls for a federal law.

(…)

In Alabama, a bill would make it a felony for a parent, legal guardian or caretaker not to notify law enforcement authorities within an hour after the death of a child and also require parents to report a missing child within 24 hours. In Kentucky, the proposal would make failing to report a child under 12 who has been missing for 12 hours or more punishable by one to five years in prison.

Other states where lawmakers are considering such measures include Georgia, Kansas, Louisiana, New Jersey, New York, North Carolina, Ohio, Oklahoma, Pennsylvania, South Carolina, Texas and West Virginia, according to news reports.

This isn’t a new phenomenon, of course. Every time there’s been a horrible crime involving a child that gets a lot of media attention, someone  somewhere decides there outta be a law. It’s an understandable reaction on some level because it grows out of revulsion toward a horrible crime, sympathy toward a child, and, in the Anthony case, the idea that someone got away with something. The first and most well-known of these laws is “Megans Law,” which has led to the adoption of some form of sex offender registration  by every state in the country. The unintended consequence of such registries, however, has been that even relatively minor offenses committed by people under 18 end up becoming the modern equivalent of a Scarlet Letter, branding someone as a sex offender for life and essentially forcing them into a life under ground. Now some form of notification that a violent sex offender lives nearby may be a good idea. However, more often than not these laws drafted in the heat of passion and outrage end up being far too harsh and don’t recognize the fact that not every crime deserves to be treated the same way:

[H]arsh laws often do little to protect the innocent. The police complain that having so many petty sex offenders on registries makes it hard to keep track of the truly dangerous ones. Cash that might be spent on treating sex offenders—which sometimes works—is spent on huge indiscriminate registries. Public registers drive serious offenders underground, which makes them harder to track and more likely to reoffend. And registers give parents a false sense of security: most sex offenders are never even reported, let alone convicted.

The problems with the proposed “Caylee’s Law” idea are even more apparent than the problems we’ve discovered with Megan’s Law, though. As John Stossel points out in a blog post, a law like this has the potential to create a nightmare world for parents:

The potential unintended consequences are endless. What if the child has a history of getting mad and running away for a day? Or a week? What if the kid sleeps over at a friend’s place?

Moreover, as Josh Blackman points out, its rather obvious that this proposed law would do absolutely nothing to deter criminal activity:

So let me be really cynical here. How would this keep a case like Caylee’s out of the courts. If a parent actually killed her daughter, do you think she would tell the police so as not to violate some random federal statute. The purpose of this law, much like laws requiring that people notify the police about lost guns, is to allow the police to easily arrest someone, without sufficient cause to show they committed the underlying offense-whether it is a gun crime, or murder.

Of course, it’s already rather apparent that many of the people pushing for this new law aren’t really concerned about deterring crime, they just want to give prosecutors another arrow to put in their quiver:

Oklahoma Rep. Paul Wesselhoft said that the petition, created by Michelle Crowder of Durant, Okla., caught his eye and the eyes of his constituents.

“Yesterday, I got a lot of emails from my constituents who are very outraged by the trial and the verdict,” Wesselhoft told ABCNews.com. “We’re all outraged that Caylee did not receive justice. There’s no question about that.”

Wesselhoft, a Republican, plans to propose a law at the start of Oklahoma’s legislative session in 2012 that would make it a felony for a parent of guardian not to notify authorities within 24 hours of a child’s death. He also plans to propose a requirement for parents to notify runaways under the age of 12 in a timely manner, although he admits having a time table for that is “more difficult because you don’t know when the clock starts,” he said.

It probably won’t be a deterrent to crime, but at least it’s something the prosecutors can charge someone with who’s violated the law,” he said. “If this law was in Florida, Casey would have some more jail time to stand.”

So what we’re talking about here isn’t really drafting a law to address a serious criminal offense, it’s about giving prosecutors another weapon they can use to punish someone even if they cannot prove in a court of law that they did anything wrong. It’s no surprise to see politicians jumping on this bandwagon so quickly, of course. Cracking down on pedophiles, or the Casey Anthony’s of the world, wins votes and makes a politician seem like they are “tough on crime.” Of course, being “tough” means that the new laws must be more severe than laws that are already in place, which themselves were proposed by “tough on crime” politicians. There’s very little incentive to vote against such laws, and no politician would dare vote against them because, if they do, the inevitable attack ads will be easy to foresee. Heck, even the Florida ACLU has said it would be unlikely to fight a law like this.

It seems likely that a Federal “Caylee’s Law” would be an unconstitutional exercise of Federal authority, however even a state-based “Caylee’s Law” poses serious Constitutional problems. Let’s say there’s a hypothetical parent out there who has in fact murdered their child and hidden the body. The police are now engaged in a missing persons search and asking the parents questions. Rather than telling the truth, they say nothing. Under the law, you have a Fifth Amendment right to remain silent. What “Caylee’s Law” says is that you can be punished criminally for exercising your Fifth Amendment rights.. Do we really want to start drafting legislation like that in response to a unique tragedy? I don’t think so.

Shepard Smith had a very good discussion about this issue late last week, and his skepticism is well-taken:

There’s an old saying in the law that bad cases make bad law, and that’s true of no case more than the Casey Anthony case. Whatever really happened in June and July of 2008 was an outgrowth of an exceedingly odd family situation, a mother who seemed more concerned with the good life in Florida than her child, and grandparents who are just, quite honestly, odd people. Trying to make law out of such a case will just result in a bad law that is more likely to ensare the innocent and enhance the power of prosecutors of police than it is to avert another tragedy. It’s sad that Caylee Anthony never got the chance to live the life she was meant for, but using her memory and her name to draft stupid laws is an insult to her and to the law.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. Chad S says:

    Not reporting a missing child is one thing, but the defense’s assertion was that Casey Anthony didn’t report her daughter’s death. There’s no reason not to have laws that you have to report a death.

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  2. Ben Wolf says:

    It seems certain people really really wanted to punish that woman and, outraged they missed their chance, are determined to ensure they don’t lose out on another feel good opportunity. Because you’re right, this won’t stop people from killing their children. It just creates new opportunities for jailing people we don’t much like.

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  3. Ben Wolf says:

    Not reporting a missing child is one thing, but the defense’s assertion was that Casey Anthony didn’t report her daughter’s death.

    Pardon me for being blunt but if the kid was already dead, and the mother didn’t do it, then what difference would it make? There are already laws on the books to deal with parents who’s carelessness kills their children. Manslaughter and criminally negligent homicide come to mind, though I’m not a lawyer so maybe Doug could address that.

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  4. Chad S says:

    @Ben Wolf: Let me turn the question around on you: if a mother comes home and finds her daughter dead, why would she not want to know what happened? Why would she just walk away from the situation or bury the child out in the swamp without telling anyone? And it doesn’t even have to be a relation: if you came home and found a body in your house/backyard that you didn’t know at all, would you just ignore it or bury it out in the woods?

    The only reason you wouldn’t report a body or hide it is because you had something to do with the cause of death.

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  5. John Burgess says:

    @Chad S: Alternatively, one could not report because one feared the conclusions others might leap to. Not that those conclusions are necessarily sound, of course.

    One with a bad record of behavior will not invite police scrutiny under the assumption that s/he will not be believed.

    Or, the one finding a dead child may freak out in a way that you might not. Unless you’ve got a special mind reading machine, you may not actually have a good read on what’s going through a person’s mind, particularly a person in an exceptional circumstance.

    Prosecutors frequently try to make their cases by pointing out how X’s behavior was ‘unusual’ or ‘abnormal’, but that’s not scientifically sound. People react differently to different stimuli and it’s less than just to assume that because they did not behave in a particular manner it must mean they’re guilty.

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  6. Ben Wolf says:

    @Chad S: If I found a body on my property I can guarantee I wouldn’t report it immediately. I’d take whatever time is necessary to make sure I had an alilbi and had secured legal representation before making that call. But then I don’t trust the police or our justice system.

    Some people won’t call at all because they are afraid of the consequences. Some people won’t call because they’d rather deal with it themselves. It’s easy for us (and I include myself) to think we can usually reason out what’s in the other peesons head, but the reality is that a lot of people just don’t think the way we do. They can process the same information and arrive at a wildly different conclusion, often not making sense but occassionally the product of a bizarre kind of logic.

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  7. Chad S says:

    @John Burgess: If I found my child dead in a swimming pool with my father saying “it was an accident!”–which is what the Anthony defense claimed-I, you and anyone would call the cops. Yes, there are people who are insane, but insane people wouldn’t have purposefully mislead and stalled the cops for weeks after the event.

    @Ben Wolf: Bullcrap. Innocent people don’t think about their alibi immediately–especially if, in a parallel with the Anthony case-they found their daughter in a swimming pool with their father claiming that it was “an accident.”

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  8. Eric Florack says:

    As I stated elsewhere:

    This is exactly the kind of thing one would expect from someone… or several someones… who think that government is the answer to everything, that creating a law solves problems, and that that unintended consequences never happen from laws and government.

    Allow me to suggest that the Anthony case down there in Orlando is an object lesson in the differences between law and justice. As I suggested the other day, if we were expecting the jury to render justice, we need to remember that they were first bound not to justice, but to the law… and rightly so. They couldn’t convict based on the evidence presented. The government didn’t prove it’s case.

    The same thing applies to the DSK case, as we also discussed recently. Given the quality of the witness, the government’s case has fallen apart. Was this justice? No, not really. As I suggested, DSK is a despicable excuse for a human being, and the woman involved knew it, and so played him as such. That doesn’t make DSK guilty of rape, in the legal sense, but it does demonstrate a pattern we generally dislike in society, unless one is Larry Flynt or some similar microscopic stature, (Flynt, who runs an “adult entertainment” empire, for the record, is another despicable excuse for a human being.)

    (As an aside: There have been many in the sphere who have questioned the practice of trusting the word of the accuser in a sexual assult case, incidental to the DSK case, that alternately held their silence, else brandished the tar and feathers, back in the day of the Justice Thomas show trial…. errr… confirmation.I think the question needs be asked, would someone who wasn’t a socialist, have gotten so many on the left to question the way sexual assault cases have been handled for so long? You KNOW it wouldn’t go down that way. DSK gets support from the left over his sexual accuser, and gets to question the validity of the accusations in a way that, say, Justice Thomas never got to do Anita Hill, simply because he’s a leftst. We both know the left, and particularly the feminist left, would never allow such credibility questions to surface under any other condition. That aside, aside….)

    Casey Anthony, meanwhile, is a despicable excuse for a human being as well for different reasons, but the similarity is that being such does not make one in a legal sense, guilty of anything. Sorry, it just doesn’t.

    There is a major and thankfully insurmountable gap between what is legal and what is just. Here it is, gang… these are matters which cannot be dealt with by means of law and the judiciary. Justice, I’m afraid, does not come from law. I strongly suggest it’s time we disabused ourselves of that fantasy. This statement is in the same vein as “Government is not thee answer… government is the problem.” Oh, certainly… The law can serve the cause of justice and often does, but often enough it does not. As in these cases. Therefore, adding more law is kinda like adding junk food. It might taste good, but it really doesn’t serve the real need. Am I suggesting vigilante justice? No, hardly. But let’s keep these things in perspective, OK?

    I mean, let’s learn the lesson these cases teach and stop assuming government can fix any ill, and right every wrong. Passing a law may make you feel good, but in the end it does very little to the stated end…

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  9. WR says:

    @Chad S: Then convict her for the death.

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  10. And it doesn’t even have to be a relation: if you came home and found a body in your house/backyard that you didn’t know at all, would you just ignore it or bury it out in the woods?

    Actually, if I came home and found the body of a complete stranger dead in my house, I would be concerned about calling the police, mostly because I realize I’m the most obvious suspect and someone is apparently trying to frame me. I would probably call a lawyer before I called the police.

    Like or Dislike: Thumb up 2 Thumb down 2

  11. Chad S says:

    @Stormy Dragon: But you would still call the police. Thanks for proving my point.

    @WR: It should be a crime to not call the police or to dispose of a body without informing the authorities about the death.

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  12. @Chad S:

    That depends on what the lawyer tells me to do.

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  13. To expand on that point, my working assumption at that point is that the police and prosecuters would from that second on, be primarily focussed on proving I was guilty of murder rather than locating alternative suspects. Thus my primariy concern is how to defend myself, and not how I can assist them. Now I’m fortunate enough that I think I could, between my own assets and help from family, afford a decent defense attorney so I likely would end up contacting the police, although I would want a third party there when they arrive to avoid any chance of them creatively misremembering what happened at a later .

    However, I can imagine someone with no hope of being able to afford a decent defense deciding the best course was to dispose of the body and pretending nothing had happened.

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  14. OzarkHillbilly says:

    Innocent people don’t think about their alibi immediately–

    Spoken like some one who has never had a bad experience with cops or DA’s

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  15. Steve Verdon says:

    Bullcrap. Innocent people don’t think about their alibi immediately–especially if, in a parallel with the Anthony case-they found their daughter in a swimming pool with their father claiming that it was “an accident.”

    I would and so should you. Most murders are committed by people who know the victim. As such, you will be suspect number one until the police are satisfied you aren’t the killer. Police and prosecutors are not about discovering the truth.

    Actually, if I came home and found the body of a complete stranger dead in my house, I would be concerned about calling the police, mostly because I realize I’m the most obvious suspect and someone is apparently trying to frame me. I would probably call a lawyer before I called the police.

    Me too. I don’t trust the police or our legal system at all. I’ve read too many cases of innocents being prosecuted and sent to prison.

    But you would still call the police. Thanks for proving my point.

    If I didn’t have a solid alibi I’d be quite hesitant.

    To expand on that point, my working assumption at that point is that the police and prosecuters would from that second on, be primarily focussed on proving I was guilty of murder rather than locating alternative suspects.

    Exactly. Police and prosecutors do not approach a case with the view point that is completely objective. They have previous experience and they’ll use that for coming to a viewpoint about who is the most likely suspect. Now, if it was a complete stranger and I had no alibi the police would still look at me as the primary suspect.

    Thus my primariy concern is how to defend myself, and not how I can assist them.

    A corollary to this is that the police are not your friends. And they will lie to you. As such you’d be insane, to quote Chad, to trust them on anything, IMO.

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  16. Wayne says:

    Or more importantly a bad experience with the LSM. How many innocent lives have been destroyed by the LSM convicting people in the media? Ramseys, the Atlanta security guard, and several others come to mind.

    Emotionally made laws usually results in irrational laws that do more harm to society than help. Unintended consequences are a bitch.

    I person comes home sit down and watches TV. for hours. Unknowingly a neighbor kids drown in their pool about the time they got home. The prosecutors will of course throw the new charges in as well. Because the law is written poorly they get convicted for not reporting a death within an hour. Or perhaps an accident happens on a climbing trip and they weren’t able to report it within an hour.

    I know many will say that those exceptions will be allowed. However the way laws are written and the way judges are allowed to instruct\lead juries anymore that is not at all certain. Now days they try to make it a jury by amateur lawyers instead of jury of one piers.

    I understand what our court system is attempting to do but think they have gone overboard on it.

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  17. Wayne says:

    I am actually agreeing with Steve. Oh No:) :)

    Not only that but the way the use the obstruction of justice and lying to cops laws anymore, I would be weary of saying anything to them. People have been prosecuted for lying to them for something that doesn’t even pertain to a crime.

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  18. matt says:

    Well considering I live in state that executed an innocent man recently (Texas) I sure as hell would be taking the stormy approach.

    EDIT : What is a LSM?

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  19. @matt:

    I think it’s “Lame Stream Media” a wordplay used frequently on talk radio the last year or two. It wasn’t particularly witty the first time it was used, and hasn’t become more so with thousands of repetions.

    Like or Dislike: Thumb up 2 Thumb down 1

  20. Steve Verdon says:

    IDK Stormy Nancy Grace is pretty damn lame….Hell I’ll even up the pot to downright Evil (yes, with a capital ‘E’). But yeah, not that funny a phrase, IMO.

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  21. Calcifer says:

    we don’t need more laws, we need prosecutors that are more interested in the truth than getting reelected. Because when you rush to catch the ‘bad guy” before the truth is discovered, you risk losing everything.

    I really hope this law doesn’t pass, it’s just another tool of bureaucracy that will be misused. I’m not an anti government nut, but when you do things out of fear or rage, it never works out for the best.

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  22. good points thanks says:

    I am so happy to see that someone knows the law and know of stupid this one is. Caylee law insult intelligence, as I learned in pre-school to call 911 when I need help.

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