"Caylee's Law" Misses the Mark

Post date: Jul 8, 2011 9:45:39 PM

* Guest post by John Bowen*

In the midst of the public outcry resulting from the Casey Anthony acquittal, many people are signing a petition for the proposed "Caylee’s Law." The proposed law is federal in nature and would make it a felony for a parent, guardian, or caretaker to fail to report the death of a child to police within one hour, or to fail to report the disappearance of a child within 24 hours.

First of all, this law is likely unconstitutional. I try to block out memories of my constitutional law class but I do know that for Congress to make a law it needs to fall within one of the enumerated powers under the Constitution. In many cases, it is the power to regulate interstate commerce, which is probably the argument here. That being said, one would be hard pressed for a good reason as to why Caylee’s Law is authorized under the commerce clause, especially after the decision in Lopez (i.e., the Supreme Court stating that regulating gun possession near schools was not within Congress’ commerce clause power). One could argue that a missing/dead child crossing state lines would involve interstate activity, but it's a huge jump to explain how that would affect commerce in any shape or form. Not to mention the fact that most cases of missing children probably don't ever cross state lines. Weak arguments along the lines that violent crimes affect commerce (because people will not vacation there, etc) were rejected in the Morrison case. This area of regulation falls within the states’ police powers and would need to be passed on a state-by-state basis.

Secondly, Caylee's Law, in this author's opinion, wrongly exploits the death of a small child. In the grand scheme of things, this law would provide no justice for Caylee Anthony. Politicians use her name because when people hear it, there is an emotional response. Those interested in creating more protections for children should focus more on creating laws based on good policy, rather than laws that prey on the sympathies of the American public. If the law is a good one, it will pass on the merits.

Finally, the law itself is without merit. Don’t get me wrong, the drafters have good intentions, but good intentions don't make good laws. The law is intended to prevent any future injustice, similar to what many feel happened in the Anthony case. But, if you think about it, what does the law really prevent? If this law were in effect in 2007, would Caylee be alive? Doubtful. If Casey actually murdered her child, would the fear of a felony cause her to report it? Would the possible charge of a felony deter her from murdering Caylee (when she could get the death penalty for the murder)? No.

The Anthony case was odd and the American public became obsessed with everything about it. Passing this law would not put Casey Anthony in jail and, in my opinion, is really only being introduced to appease those who were outraged at the verdict. Think of it this way: if Casey were found guilty would this law have been introduced? I would venture to say that it would not have been. Think about that one for a minute. Yeah, the law sounds good and all, but what is going to happen is that some responsible parent whose kid runs away to their friend's house for a day is going to be charged with a felony. Do we really think that having a law like this will cause a parent to report their missing kid faster? I'm pretty sure that concerned parents already do that almost instantly. And, the ones that don't (e.g., Casey Anthony) probably have a reason for not reporting that carries a much scarier punishment than Caylee's Law.

If you would like to read more, check out these sources: A, B, C