Why Caylee’s Law is a Bad Idea
By Chris Dornin & Philip Horner
It is often said that hard cases make for bad law. But lawmakers feel huge pressure to do something when crimes arouse public indignation. This something is usually to enact ill-conceived laws. If your only tool is a hammer, everything starts to look like a nail. These feel-good laws are often well-meaning, but some politicians see an egregious crime as an opportunity to make political hay by sponsoring a bill named after the victim. Every year the New Hampshire Legislature is presented with several such bills. This year is no exception. 271-F and HB 1709 (identical bills) would make it a Class A misdemeanor for a parent or guardian to fail to report a child less than 12 years old as missing for more than 24 hours, or for failure to report within 6 hours of the child’s death. This is New Hampshire legislation to correct the widely perceived injustice in a single well publicized Florida death penalty case.
A jury acquitted defendant Casey Anthony of capital murder after she waited 31 days to report her two-year-old daughter Caylee was missing. The two bills are part of the widespread public outcry over that verdict. The question for lawmakers is whether a single miscarriage of justice on the side of lenience in a distant state, if that is what happened, should call for a new felony law in New Hampshire.
At the hearing for SB 271 on Feb. 2, prime sponsor Sen. David Boutin said senators have received hundreds of emails calling for a bill like this named for Caylee Anthony, the dead child. He testified that similar bills in other states have been “very harsh,” calling for as much as a 10-year minimum sentence and $15,000 fine.
“The American psyche is traumatized and outraged by what took place (in Florida),” Boutin told senators. “The mother took more than a month to report her missing child. We are compelled to give our constituents the comfort of knowing law enforcement can deal with a similar thing here.”
He compared his bill to Jessica’s Law, named for another Florida murder victim in 2005. That February Jessica Lunsford was snatched from her home, raped and buried alive. Florida lawmakers signed a draconian 82-page child predator law three months later without a single vote against it in either house of the legislature. Dozens of states had copied it within a year, including New Hampshire, despite a lack of evidence that the provisions of the law make society any safer. There is now mounting evidence that Jessica's Law is indeed bad law, paradoxically increasing the risk of recidivism among sex offenders by seriously impairing their ability to reintegrate into society.
“A tragedy involving a child demands legislation and social change to protect those least able to protect themselves,” Boutin said.
Attorney Michael Iacopino, a lobbyist for the NH Criminal Defense Lawyers Association, called SB 271 unnecessary because this kind of crime is extremely rare.
“We already have (New Hampshire) laws against endangering the welfare of a child or an incompetent person,” Iacopino explained. “This bill is too ambiguous.”
Seventeen states have tried to pass similar “Caylee’s Laws,” but many of these efforts have stalled over similar concerns that the changes are too broad or redundant. Lawmakers in Iowa recently rejected legislation requiring parents to know their children were safe in any 24-hour period over concerns it was too vague. There was speculation whether the law would require parents to check in daily with children at summer camp to be in compliance.
Parents have many non-criminal reasons to be unaware of the exact location of their children hour by hour. Should this be cause for legal action against them? And what about the child who dies in the emergency room from accidental injuries or the child who succumbs to a long-standing medical condition? Must the grieving parent call the police within 6 hours to report the death or face criminal charges?
Placing another legal burden on parents would make little difference in most homicide cases, including those involving a parent accused of killing a child. Certainly a “Caylee’s Law” in Florida would not have prevented young Caylee’s death. And if police have enough evidence to prove a parent failed to report a death, they probably have enough evidence to prove them an accessory after the fact and probably responsible for the crime.
None of us sat on the jury that acquitted Casey Anthony in her daughter’s death. Perhaps we should even rejoice that a jury of ordinary people in a state so hard on crime as Florida had the courage to vote their conscience, right or wrong as they may have been, against the tsunami of public outcry they had to know was coming.
We at CCJR believe there are already more than enough crimes on the books to adequately punish true criminal activity. Our prisons are bursting at the seams. Creating yet another law that can be used to send more people to prison for longer periods of time will unnecessarily cost the State tax dollars and not make our children safer.