“Caylee’s Law” Gaining Steam in State Legislatures

If you haven’t been living under a rock for the last several months, you’re probably aware that Casey Anthony was just acquitted of all charges (except a few relatively minor ones related to lying to the police) in the death of her two-year-old daughter, Caylee. Of course, she was convicted in the court of public opinion long ago. Many people passionately believe that Casey Anthony got away with murder.

Personally, if I were forced to make a guess, I’d say that she probably had something to do with her daughter’s death. However, proving that “she probably had something to do with Calyee’s death” is a far cry from proving beyond a reasonable doubt that she killed her daughter. Therefore, given the evidence that the prosecutor was able to produce, the jury was right to find her not guilty, even if they strongly suspect that she was guilty. We have a high standard of proof in criminal cases for the specific reason of making convictions difficult to obtain. This is supposed to make it highly unlikely that an innocent person will be convicted. Of course, it necessarily means that some guilty people go free. But most people agree that it’s far better for a guilty person to go free than for an innocent person to be punished (Ben Franklin said “It is better one hundred guilty persons should escape than one innocent person should suffer.”).

Anyway, not letting a good public outcry go to waste, state legislatures are scrambling to pass legislation that they’re referring to as “Caylee’s Law.” Most of the proposals are in response to the fact that Casey Anthony waited over a month after her daughter’s disappearance before reporting her missing. These laws would make it a crime for parents or legal guardians to fail to report the disappearance or death of a child within a certain period of time. For example, one proposal would require parents to report the death of their child within 1 hour of the death being discovered, and the disappearance of a child within 24 hours.

These all seem like things that the vast majority of parents would do anyway, if they were faced with the tragedy of a dead or missing child. It’s not likely that laws like this would prevent parents who are inclined to harm their children from doing so. Though, I suppose that if such a law existed at the time of Caylee Anthony’s disappearance, Casey Anthony could, if nothing else, have been convicted under it, even if she were still acquitted of murder. That might have been some comfort to the armchair pundits who are still screaming for blood, but meeting the expectations of the masses with respect to a high-profile case is not exactly the primary goal of the criminal justice system.

Furthermore, the article linked above mentions a petition to pass a federal version of this law. Besides being just as ineffective as similar state laws are likely to be, there’s another problem with the federal law: it’s almost certainly unconstitutional.

There’s simply no way that the Constitution gives the federal government the power to regulate such basic, personal conduct. Remember, the constitution created a federal government of enumerated powers. This means that the government cannot do anything which the Constitution does not explicitly grant it to do.

Now, if Congress were to pass such a law, it would have to rely on the Commerce Clause of the Constitution to support it. The Constitution gives Congress the power to regulate interstate commerce. Over the last several decades, the Supreme Court has interpreted this provision to regulate virtually any economic activity that has an impact on interstate commerce. This has given the federal government the broad regulatory power it enjoys today. This allows the federal government to regulate individual economic acts which, by themselves, do not affect interstate commerce, but which can have a significant impact in the aggregate.

However, the Supreme Court has drawn the line at non-economic activity. It is much harder for the federal government to regulate non-economic activity under the Commerce Clause. Generally, to regulate non-economic activity under the Commerce Clause, single instances of the activity must have an impact on interstate commerce. Aggregate effects of non-economic activity cannot be considered. Obviously, the “act” (really, it’s an omission) of not reporting a missing child is a non-economic activity, and it’s highly unlikely that a single instance would have any impact whatsoever on interstate commerce.

Of course, the writers of the petition probably didn’t consider the constitutional implications of the law they’re proposing. Also, they probably also didn’t consider the fact that it would likely be much easier to get individual states to pass these laws, rather than the federal government.

Even though they wouldn’t raise any constitutional issues, passing these laws at the state level seems ill-advised. As I mentioned earlier, they aren’t likely to deter somebody who is already inclined to harm their children. Likewise, enforcing them would be difficult, and could lead to some unfair results.

While such situations are rare, what would happen if a child is kidnapped for ransom, and the kidnapper tells the parents that he’ll kill the child if the parents notify the police? Suppose the parents panic, and wait longer than the maximum period of time before going to the police. Would they be held criminally liable? While most agree that, if someone is kidnapped, calling the police is the first thing you should do, no matter what the kidnapper says, could you really blame the parents for panicking in such a situation?

Really, this just goes to show, once again, that people need to think before legislating. The entire Caylee Anthony ordeal is extremely tragic. And the ensuing media circus did nothing in the service of that girl’s memory. Let’s not do her a further disservice by naming asinine laws after her.

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