July 9, 2011

Caylee's Law - Do we need one?

In the wake of the acquittal of Casey Anthony on the charge that she had murdered her daughter Caylee, there has been much public outrage and a call for new laws that might have been applicable in this case, in the hopes of "preventing" something like this from happening in the future. Online petitions and Facebook groups supporting a "Caylee's Law" are abuzz with activity, but the proposals are vague and seem more to be aimed at assuaging the public's anger over the trial's outcome rather than enacting a practical code of justice.

Let us begin by looking at the fact that Casey did not get off entirely. There are already laws on the books that were and may have been applied. She served three years in jail for the four misdemeanors she was convicted of, for lying to police. A rather lengthy sentence in fact for non-felonious offenses. Child abandonment, obstruction, and perhaps even criminal facilitation might also have been charges which convictions against her might have been secured. Under Federal law she may have been charged with misprision.

§ 4. Misprision of felony

Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both.

Now another three years may not be enough to satisfy the bloodlust of an outraged public, but frankly, no law really will change that. The public feel "cheated" out of a murder conviction, despite the fact that the prosecution failed to make their case. Much reasonable doubt exists that Casey was actually the person who took her daughter's life. It seems pretty clear that she knew her daughter had been killed, took steps to cover up the crime even, but there is no proof at all that she was the actual killer. For all we know it could have been a boyfriend or acquaintance, a babysitter, another family member even, we really don't know. It is easy to assume things, but convictions are not won on assumptions and guesswork, nor should they be, lest we all find ourselves behind bars on mere accusations of wrongdoing.

Now let's go ahead and look at what exactly is being proposed. The petition letter from Change.org reads as follows:

Create Caylee's Law, Not Reporting Child's Disappearance Should Be a Felony


On July 5, 2011, at 1:15 pm CST, Casey Anthony was found not guilty of first degree murder in the death of her daughter Caylee Anthony. The only charges she now faces are four counts of falsifying police reports, each of which only carries a 1 year prison term. Since she has been in jail since August 2008, she will be out of jail ENTIRELY too soon.

I'm writing to propose that a new law be put into effect making it a felony for a parent, legal guardian, or caretaker to not notify law enforcement of the disappearance of a child within 24 hours, so proper steps can be taken to find that child before it's too late.

This way there will be no more cases like Casey Anthony's in the courts, and no more innocent children will have to go without justice.

The case of Caylee Anthony was tragic, and there is no reason for another case like this one to hit the courts. Let's do what is necessary to prevent another case like this from happening.

[Your name]

As is so often the case with these boutique laws, they seem to make sense at first glance. It seems pretty reasonable to expect a parent to report that their child has gone missing. But why, exactly, should not doing so be a felony? Why should I be of the opinion that Casey Anthony is getting out of prison  "ENTIRELY too soon?" It seems to me that the phrase was authored on the basis of emotional appeal rather than sound logic. It was written in anger, not written as a practical observation.

Keep in mind here too that low-level felonies only carry sentences of a few years themselves. Even if such a law were enacted, Casey Anthony may still be getting out of prison after serving only a few years, sentenced to time-served while awaiting trial. Especially considering the fact that misdemeanor offenses rarely are met with a sentence of incarceration at all much less 3 years in prison.

So what level of felony is actually being proposed here? Is the author suggesting that failure to report a child missing be tantamount to murder? That a parent found guilty under this proposed law face a sentence on the order of 25-to-life perhaps? The knee-jerk response that I can hear already by some readers of this article is "absolutely! Casey Anthony should do life in prison for not reporting her child missing!"

But this proposed law is not about Casey Anthony. She will never be charged under such a law. That opportunity is passed. So we are left with contemplating how such a law will be applied in the future. Now let us imagine for a moment that you are a single-mother, working two jobs, and your teenage child often goes to stay at friends houses. You come home from work to find the apartment empty, as is often the case, and after a meal and some sleep you head back out to work early the next morning. That night you come home to be greeted by police with the most terrible news a parent could ever imagine. That your child has been found dead. Oh, and by the way, the time of death has been placed at 30 hours ago, and you are now under arrest facing life in prison for failing to report that your child was missing.

We could also suppose that perhaps the child bounces back and forth between the homes of a divorced mother and father regularly. Maybe both parents live in the same area and the child goes back and forth using their bicycle or public transportation, or just takes whichever school bus they feel like taking at the end of a school day. For a short period of time, 24 even 48 hours perhaps, both working parents assume the child is with the other parent, only to find that their child has been found dead somewhere. In a case like that, who gets charged? Both parents?

And what about cases where the parent claims to have left the child with a babysitter, as Casey Anthony claimed in this case? What if it cannot be proven who was actually in charge of the child at the time of the disappearance and thereby subject to the new proposed law requiring that a missing child be reported? Are both the parent and the babysitter charged then in such a case?

Now these are just a few examples that immediately come to mind. In time, we would see many more unforeseen examples arise of how such a law would actually be a miscarriage of justice. After all, the law is the law, and does not differentiate between people who break the law with good reason or not. It will be applied to all parents, not just in cases like this one.

Then of course too, we should also consider cases of missing persons and unreported deaths other than children. In a sense, this proposed law does not even go far enough. Why should only children be protected by such a law, with a parent/guardian be held accountable for this perceived negligent indifference? Shouldn't a husband who fails to report his wife missing and/or dead also be held accountable? Or even a roommate perhaps? And then of course where does one actually draw the line? Could not then an employer be held accountable for failing to tell police when an employee doesn't call or show up to work for days?

So this proposed law actually falls short of the reaching the moral high-ground the petitioners think they are taking, while displaying a lack of logic and blatant emotional appeal.

This way there will be no more cases like Casey Anthony's in the courts, and no more innocent children will have to go without justice.

No law ever prevented a crime, and this proposed law will not stop children from being killed. Even if this law were on the books now, and Casey Anthony could be charged under such a statute, it still would not be justice for Caylee for one big, glaring, obvious reason. Her killer is still at large. To say otherwise is to assume that Casey is indeed the killer and this law is simply an end-run around justice in order to imprison her anyway even though she was exonerated of the murder charge. Laws are not there as a box of tricks in order to lock up anyone we feel like. It is not the job of the People's prosecutor to sit there and say, "Well, if we don't get the person for this crime, we have a few more crimes we can get them on instead and make sure they wind up in prison no matter what."

If we are going to go down that road, why not just throw out the Constitution entirely and throw everyone in prison who doesn't look right, or who we think "deserve" to be in prison.

Which of course now brings us to the Constitutionality of such a proposed law. The Fifth Amendment protects us from self-incrimination, and not for the reasons you may think. This right is not to protect the guilty, it is there to protect the innocent. Specifically, to protect us from threats and coercion to gain a confession to, or evidence of a crime. You throw away the protections against self-incrimination, you open the door to false confessions and torture.

SELF-INCRIMINATION: Acts or declarations either as testimony at trial or prior to trial by which one implicates himself in a crime. The Fifth Amendment, U.S. Const. as well as provisions in many state constitutions and laws, prohibit the government from requiring a person to be a witness against himself involuntarily or to furnish evidence against himself.

SELF-INCRIMINATION, PRIVILEGE AGAINST the constitutional right of a person to refuse to answer questions or otherwise give testimony against himself or herself which will subject him or her to an incrimination. This right under the Fifth Amendment (often called simply PLEADING THE FIFTH) is now applicable to the states through the due process clause of the Fourteenth Amendment, 378 U.S. 1,8, and is applicable in any situation, civil or criminal where the state attempts to compel incriminating testimony.

~Black's Law Dictionary

If Casey Anthony were guilty of any crime whatsoever involving the death of her daughter, requiring her to report her daughter missing to police would be a violation of her Fifth Amendment rights which protect her against self-incrimination. That doesn't mean a self-incrimination of murder either. It could have been something as simple as a misdemeanor charge of unlawfully dealing with human remains, or being high on marijuana at the time of the Caylee's disappearance or death even if she was not present.

Therefore, the only time this proposed law could be applied in accordance with the tenets of the Constitution of the United States, is if you first proved that the parent/guardian was in fact innocent of all other crimes related in any way to the disappearance of the child. And of course then, a person who had done nothing else wrong whatsoever, is the last person you would actually want to send to prison for not reporting their child missing.

So now we see, that what appeared to be reasonable proposal, a good idea, actually is not. So many people have said, "I can't believe this isn't already a law." Well, folks, now we know why it isn't. Because emotional appeal, knee-jerk reactions, and flawed logic should never be the basis of law. The passage of such a law would actually be contrary to liberty as prescribed by our Constitution, and another stride deeper into the fascist trend of this nation's recent history.

"I use emotion for the many and reserve reason for the few."  -Adolf Hitler

EDITOR'S NOTE: A poll for this topic has been attached to the bottom of this site. Feel free to leave comments as well, of course. 

Join the "Say No to Caylee's Law"  page on Facebook

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