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The Latest Black Swan: Caylee's Law

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Tags Legal System

08/03/2011Wendy McElroy

Black-swan law: a law created in response to a highly unrepresentative situation or legal case, which is typically rushed into effect and then used to regulate everyone's daily life.

Never trust a law named after a person. It is most likely a politician's act of self-aggrandizement or the result of public frenzy. Caylee's law is the latter. Caylee's law is the generic term used to describe bills being considered by at least 16 states by which a parent or legal guardian's failure to report a missing or dead child to the police in a timely manner would become a felony.

Caylee's law and its surrounding circumstances are a political circus with unfortunate effects: it distracts people from political and economic crisis, it piles up redundant legislation, and it promotes the illusion that government solves injustice.

The frenzy of public backlash began on July 5th, when a Florida jury found Casey Anthony not guilty of murdering her young daughter, Caylee. At first, the public was stunned. For weeks, instead of economic or political news, the mainstream media broadcasted live coverage of Anthony's trial along with in-studio analysis that always seemed to converge on her guilt.

Then the shock receded; the public began to cry for blood with a rage that had been stoked by the media's obsessive coverage of Anthony's depravity as a human and as a mother. Now the depraved Anthony seemed to be "getting away with murder."

No hard evidence connected Anthony to her daughter's death; witnesses contradicted each other; stories shifted with time; the prosecution's case amounted to character assassination. In short, a fair jury could not have viewed Anthony to be guilty beyond a reasonable doubt. But none of this mattered to public opinion.

It was as though people had gone through the mandatory "Hate Week" described in Orwell's novel 1984, which is distinct from the daily 2-minute hate sessions. The Orwellian Hate Week consists of lectures and parades, displays and songs, all designed to create such rage within people that they became willing to literally tear an "enemy" to shreds. The creation of rage serves political purposes in the novel. It directs anger away from Oceania — the domestic totalitarian state — toward a faux enemy of that state's making. And it establishes Big Brother as the protector against a shared enemy.

In the wake of Anthony's trial, people immediately began appealing to the government for protection through new laws. They focused on one aspect of Casey Anthony's "crime." Caylee had been missing for a month before her grandmother, not her mother, called 911 to report the disappearance. When finally questioned by the police, Anthony provided false information that hindered their investigation.

Online petitions for estabilishing Caylee's laws on both the federal and state level went viral. The petition at Change.org currently (August 2) boasts 1,284,908 signatures requesting a federal Caylee's law. (Note: such criminal matters are generally the bailiwick of states.) State-level e-petitions have also exerted pressure on lawmakers, many of whom seem eager to promote a popular law that will "protect children."

The laws being drafted from Florida to California vary in their specifics. For example, some laws demand that a parent or guardian notify the authorities of a child's death within one hour; others allow two hours. The proposed bill in Florida, which is ground zero for Caylee's law, can be viewed as a model.

Under the proposed bill, HB37,

A caregiver who willfully or by culpable negligence fails to make contact with or otherwise verify the whereabouts and safety of a child in his or her care who is 12 years of age or younger for a period of 48 hours and to immediately report the child as missing to law enforcement after this 48-hour period expires without contact commits: (1) A felony of the second degree if the child suffers great bodily harm, permanent disability, or permanent disfigurement while missing; or (2) A felony of the third degree in any other circumstance.Download PDF

According to Florida statutes, a second-degree felony is punishable by a $10,000 fine and 15 years imprisonment; a third degree felony is punishable by a $5,000 fine and 5 years imprisonment. Similar penalties befall those who make false statements to the police or do not report a child's death within two hours. (There are some exceptions, such as deaths occurring in a hospital.)

Florida's proposed law presents immense problems:

First, although the law is promoted as a way to prevent "another Caylee," there is no reason to believe it would have saved her life. Nor is it credible to believe a parent who would kill a child would be dissuaded from doing so by a government time limit on reporting the act. Attorney Josh Blackman commented,

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 police about the notification of lost guns, is to allow the police to easily arrest someone, without sufficient cause to show they committed the underlying offense.

Second, requiring a parent to report an act or situation for which they have criminal liability may be unconstitutional. Specifically, it may violate the Fifth Amendment protection against self-incrimination. It is akin to telling a thief that, if he does not turn himself in within 48 hours of the theft, he will be breaking the law. Moreover, as the Constitutional Law Prof Blog explained of the drive for a federal law,

The petition does not state a constitutional ground for Congress to exercise the power of enacting a general law. As Constitutional Law students know, Congress must have a specific and enumerated power in order to enact legislation. Generally, criminal laws are within the province of the states.

Nevertheless Congress has enacted "many criminal laws under the commerce clause power of the Constitution, Article I, section 8, clause 3."

Third, as FOX contributor Judge Napolitano commented, Caylee's law is a slippery slope. It asserts an "affirmative obligation" for people to provide information to the government, with criminal penalties for remaining silent. This is a dangerous road.

Fourth, passing intrusive and far-reaching laws in response to a child's death is becoming common practice. There was Megan's law at the federal (1994) and state levels, which created sex-offender registries. This was supplemented by the Adam Walsh Act (2006), which "created new substantive crimes, expanded federal jurisdiction over existing crimes, and increased statutory minimum and/or maximum sentences."

And then there's Dru's law, Jessica's law, and even Amber's (Alert) law. As Salon's Peter Finocchiaro commented, "When tragedies like Caylee Anthony's spur populist, outrage-fueled laws, the resulting legislation often draws criticism for being purely reactive, overly indiscriminating and even counterproductive." Long after the outrage that propelled the legislation dies down, people are encumbered with its unintended and unforeseen consequences. As Finocchiaro observed,

The Economist published a scathing indictment of American sex-crime laws in August 2009 that delved into the issue of "named" legislation. At the time of the writing, 674,000 Americans were registered sex-offenders, but an alarming percentage of them were low-risk violators, for whom the punishment didn't seem to match the crime.

Fifth, as libertarian commentator Radley Balko observed,

It isn't difficult to come up with other scenarios where innocent people may get ensnared in Caylee's Law.… You're camping with your family when your son goes missing. One of your other children says she last saw him swimming in a lake. You spend several hours frantically looking for him before discovering that, tragically, he has drowned. You call the police. Under Caylee's Law, is this a "missing child" case, or a "dead child" case? Do you get charged with a felony for not notifying authorities within an hour of your son's drowning, or are you afforded the 24-hour window from the time you noticed he went missing?

Caylee's law is a black-swan law writ large. It seeks to legislate daily life based on a set of extraordinary circumstances — rather like insisting everyone take medicine for an exotic, rare disease.

Nevertheless, the laws are gaining traction, especially in state legislatures. A drive for vengeance that mistakes itself for justice is providing powerful emotional fuel. Added to this is how attractive a career path lawmakers find such high-profile measures to "protect the children."

Caylee's law has the unfortunate allure of making people feel better about themselves for backing it. People feel as though they are finding justice for Caylee. They aren't; they are simply making themselves feel better. Caylee is dead, and her legacy should not be to have her name attached to a bad law.

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