Jul 6, 2011

Posted in Black Swan

Black Swans and “Caylee’s Law”

Following up from my previous blogging about the impassioned social media reaction to the verdict in the Casey Anthony case, it seems that Change.org has started a petition with over 50,000 signatures to enact federal legislation to pass a new criminal law, titled “Caylee’s Law,” that “will make it a federal offense for a parent or guardian to not notify law enforcement of a child going missing in a timely manner.”

If legislators actually enacted this law, this seems to be a text book black swan response to a tragic event. These types of crimes are so bizarre, and rare (that is why they capture the public attention), that attempts to pass laws to prevent them will likely fail. While parents harming their children is, unfortunately, all-too-common, this outrageous case, with chloroform, and whatever else made this case so newsworthy, is fairly rare. There’s a reason we don’t hear much about the countless children who go missing.

Would Casey Anthony really have been deterred by a federal statute punishing failure to report a missing child? Of course not.

The hope of this statute would be to “keep another case like Caylee Anthony out of the courts.”

So let me be really cynical here. How would this keep a case like Caylee’s out of the courts. 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 that people notify the police about lost guns, is to allow the police to easily arrest someone, without sufficient cause to show they committed the underlying offense–whether it is a gun crime, or murder.

How would this law actually work?

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 death of their child, accidental or otherwise, within 1 hour of said death being discovered. 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.

Also, make 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.

1 Hour! And if someone tells the police on the 61st minute, they go to jail. 24 hours! What about a sleepover in the woods?

While the person is incarcerated, the police have more power to investigate and question him/her. This law will not keep cases like Caylee Anthony out of the courts. If anything, it will place these cases in federal courts (and out of federal courts, and perhaps even create a nexus with a federal interest, like the Loughner indictment). As Doug Berman noted, Casey Anthony should be glad she was tried in state, rather than federal courts. Were she found guilty of obstruction of justice (lying to the police) in federal court, her sentence would have been much steeper.

Plus, I am going to invoke Ted Frank’s rule, and express skepticism of any law named after the victim of a crime–these laws are “poor public policy enacted by legislators who confuse voting against a law with voting against an innocent person.” Who would vote against Caylee?

Update: Constitutional Law Prof Blog has a post about whether this would be constitutional under Lopez.

Update 2: Welcome Salon.com readers.

Update 3: Welcome Fox New Business readers from John Stossel’s article.

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  • I did not read the CLP blog post, but I do not see how the proposed law could possibly be constitutional. If such a proposed law ever came up for a vote, it would be really, really interesting to see how many self-professed conservative legislators would vote for it.

    • Josh Blackman

      Two words: Terry Shiavo.

      • As I recall, no one a6 the time ever realized that the legislation would have flunked the test set out in U.S. v. Morrison about the need to have an economic component for something to be considered commerce. I am sure that that would be brought up now.

  • But what is the Black Swan event here: the actual crime committed (which presumably the law is attempting to prevent) or the return of the jury verdict? Or neither? I think your analysis is spot on, but I am not convinced that either the crime or the acquittal are true black swans (that is, the unknown unknown). This just seems more a classic case of a bad prosecution + good defense.

    • Josh Blackman

      The black swan is an amalgam of that makes this case unique: brutal killing + adorable child + totally unsympathetic deadbeat mother + overwhelming evidence + botched prosecution + national media attention + outrage.

  • It might not stop people from killing their children, but it would make them spend some time in jail for doing so!

  • If a parent really did kill their child, would not the notification by them of a missing child to authorities constitute a violation of their 5th Amendment right to avoid self-incrimination?

    In the Anthony case, wasn’t one of the prosecution’s problems that the body wasn’t discovered promptly enough to be able to determine cause of death due to advanced decomposition? And, wouldn’t one need the presence of a deceased child in order to activate the “within 1 hour of said death being discovered” portion of the law? Statutory punishment for failing to meet a one hour notification after the body has been in a swamp for 6 weeks seems a bit pointless.

    IIRC, there have been cases (Adam Walsh comes to mind) in which parents have requested assistance from law enforcement when a child is missing, and authorities routinely reject such requests for 24-48 hours because so many of those cases are simply runaways or Junior exercising his frustration by hiding out at a friend’s house. So, now a statute will make them “snap to” within the first 24 hours? And, what other law enforcement responsibilities will go unperformed while the gendarmes are searching for Junior? (Although, thinking about it, that may be a feature, not a bug; if the SWAT teams are marching through the woods looking for Junior, they’re not shooting dogs or former Marines).

    This is just more worthless “feel good” crap from professional politicians who do stuff like this to be seen as “doing something.”

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  • you are all missing the point. Of course making not reporting a missing child a crime, won’t make a criminal report a missing child. But maybe — just maybe — it will make moronic jurors use their God-given brains so they can see and act on what is in front of them.

  • Caylee’s law, is a supreme court case waiting to happen. In our constitution (including bill of rights) it is made clear that, no law is to be made with a direct purpose of targeting a group, individual, race, sex, mental disorder etc. Would this law effect Casey Anthony? No, never could. If brought forward, one could argue that the constitution did not state if the law had to affect the individual or group of individuals.

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