It is always nice to find that a law professor agree with me.
Stupid laws passed on waves of emotions have unintended consequences that tend to do more harm then good.
In Florida,the state itself cheerfully lost track of over a thousands children a year placed in it care but it still wish to go after parents for not reporting no matter what the situation a child missing within 24 hours!!!!!
Opinion: Now there's Caylee: Laws of good intentions
Sunday, July 17, 2011 Last updated: Friday July 15, 2011, 5:22 PM
BY JENNY CARROLL
ASSOCIATE PROFESSOR OF LAW AT SETON HALL UNIVERSITY SCHOOL OF LAW, FORMER ACADEMIC DIRECTOR OF THE OHIO INNOCENCE PROJECT AND A PUBLIC DEFENDER. HER WORK FOCUSES ON CRIMINAL LAW AND PROCEDURE AND THE ROLE OF JURIES.
AP To observers outside the courtroom, the verdict seemed wrong. The jury seemed to have failed in their duty and, if one is to believe the most sensational media accounts, freed a murderer.
With no ability to change the verdict, the acquittal sparked a movement to change the law.
Last week New Jersey legislators joined others in several states who are pushing to enact what has been dubbed Caylee’s Law.
A measure introduced by Senate Republican Leader Tom Kean Jr., R-Union, would require a parent to report a missing child within 24 hours.
“Common sense dictates that a parent or guardian who does not to report the disappearance or death of a child in their care should be considered criminally negligent,” Kean said.
Sen. Nicholas J. Sacco, D-North Bergen, has introduced a similarly worded bill.
In some states, measures further require that parents report the death of a child within an hour. A grassroots petition is calling on the federal government to enact a similar law.
The sentiment driving this movement is understandable. A child is dead. Her mother’s behavior while she was missing and in the wake of her death was inexplicable, suspicious, callous, heartless or guilt ridden – depending on who you talk to (or listen to).
But the law won’t bring the child back. And the passage of a law in the name of the child we mourn may well create unintended harms without protecting future children.
Caylee Anthony is not the first child we, as a nation, have collectively mourned or sought to memorialize or posthumously protect with legislation. One need only to look to the laws passed in the Nineties in the wake of the horrific
murders of Megan Kanka of Hamilton Township, N.J., or Polly Klaas of California.
These laws followed the best intentions – they were designed, in theory, to protect future Pollys and Megans.
But these laws, no matter how well-intended, had bad consequences.
Polly Klaas’s abduction from her own bedroom and murder by a recidivist offender was every parent’s nightmare. In response, California and other states across the nation passed “three strikes” laws – allowing for long — sometimes life — sentences for offenders with two prior felonies. Upon the third conviction, or strike, they were “out.”
The idea was if such a law was in place, Polly would be alive— or future Pollys could be saved from predatory recidivists like the one who took and killed her.
Today, however, California’s prisons are filled with the unintended recipients of three-strike sentences. Addicts and petty thieves fill the prisons, while the state’s economy reels and the judiciary shuts the state prison system down for overcrowding.
The legacy of Megan’s Law, passed following the murder of Megan Kanka, is not much better. Designed to alert parents to the presence of convicted sex offenders in their neighborhood and to prevent such sex offenders from living in proximity to schools and other locations, the law has drained enforcement resources that must now be spent confirming offenders’ addresses.
In many communities, sex offenders can no longer find legal residence, so they live illegally or without fixed address, defeating the purpose of Megan’s Law all together.
But the worst result of the law has been its impact on individuals at the lowest risk of re-offense.
Consider the elderly man convicted 20 years ago of slapping a cheerleader’s backside at a football game. Because he was convicted of a sex offense against a child, he was recently told he had to leave the home he has shared with his wife for the last 25 years because he was in violation of Megan’s Law. His house is 983 feet from an elementary school.
Never mind that he had no previous and has had no subsequent convictions or that his now disabled wife will have to be placed in a nursing home if he is forced to move. The law must be enforced.
It is no wonder that in recent court filings across the country, sheriff associations, victim’s rights organizations and prosecutors’ offices oppose the law, admitting that it has not reduced recidivism rates among sex offenders and instead has created a bureaucratic nightmare for the folks charged with enforcing it.
There are many ways to think about Caylee’s Law. On the one hand, a complete failure to respond to Caylee’s story – her brief life, the confused tragedy of her death – seems as inhumane as anything that the state of Florida accused her mother of.
On the other hand, a response based on emotion rarely creates good law. Surely, we owe it to Caylee that any law passed in her name should be a good one.
Thinking about such a law, several risks are obvious.
When, exactly, should a parent report a missing child? At the 24-hour mark? Instantly? What effect would such reports have on already overburdened law-enforcement agencies?
How would the police cull true tragedy from the all-too-common parental fear resulting from missed curfews or miscommunication?
Would parents grieving the loss of a child pause to report the death to the police in the required hour? If they were overwhelmed by grief in that first hour, would the law excuse them or only insult their injury with a felony trial and potential conviction?
When should the hour be calculated? Could a parent who failed to check hourly on a sleeping child be convicted if the child died in the night and the parent only reported in the morning upon discovering the child?
Would a parent involved in the death of their child actually be motivated to report the crime regardless of the existence of the law? And if they did, can this law withstand constitutional scrutiny ?
The Fifth Amendment protects each of us from forced confession and self-incrimination in the face of an all-powerful state. The Founders knew that forcing the accused to confess or report his or her own crime was unreliable, dangerous and offensive to liberty, long before Innocence Projects — organizations that seek to exonerate the wrongfully convicted — confirmed how dangerous forced implication can be.
Caylee Anthony is dead. My heart feels the loss of this child I never knew as I tuck my own children into bed each night. The good people calling for the enactment of Caylee’s Law undoubtedly feel something similar, if not the same emotion.
Together, we mourn the toddler who will never lose her first tooth or enter her first spelling bee or win her first soccer game or grow up.
The collective pain we feel at the loss of this child is so strong that we try to create laws to protect all those like her. But as good as our intentions, and as strong as the hearts that would lift this cause, the law, like those named for the children before Caylee, will not protect her or children after her.
It will not produce the justice we hope, but it will create unintended harm in its wake.
We owe Caylee more than our hearts, more than our sorrow, more than our fears. We owe her, and all the unnamed children like her, a law that is well-reasoned, not just well meaning.