Why States Should Think Twice About ‘Caylee’s Law’

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Orange County Sheriff's Office / AP

With Casey Anthony having been found not guilty of the murder of her 2-year-old daughter, Caylee, outraged Americans are seeking other routes to justice and hoping to prevent similar cases.

About half a million people have already signed an online petition calling for a federal law — Caylee’s Law — to make it a felony if parents fail to report the death of a child within an hour, or fail to report a missing child within a day. Legislators in at least five states, including Florida where Anthony was tried, are working on introducing similar bills.

But is this really a good idea? Such legislation, introduced in the wake of shocking crimes, is notorious for having unintended negative consequences, as embodied in the law school cliché, “hard cases make bad law.”

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Consider some scenarios that might arise under Caylee’s Law. For instance, imagine that a child has just drowned — the scenario put forth by Anthony’s defense — after hours of attempts at resuscitation. What parent’s mind will be focused on notifying the police of the child’s death within an hour? Wouldn’t that small chore be forgotten, even by the most conscientious of parents, as they come to grips with the harrowing fact that efforts to revive their child have failed? Do we really want to add legal hassles to such parents’ overwhelming grief?

Further, consider the bureaucratic nightmare of reporting child deaths in hospitals when time of death may not be clear, or in chaotic accidents, or during natural disasters.

Presumably, the reporting requirement could be satisfied simply by the act of seeking medical attention, but it’s easy to see how the main result here would be more paperwork, bureaucracy and possibly even jail time for people already facing the worst form of grief.

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Alternatively, consider what would happen if your teenager failed to come home one night. This utterly common occurrence would require you to file a police report to avoid felony charges under Caylee’s Law. Some versions of the proposal would limit its scope to children under 12, but if it were applied to all children, it would risk flooding the police with hundreds of thousands of useless missing-teen reports, tying up time that could be used to solve actual cases.

And even in situations involving children under 12, many false alarms may result from perfectly innocent confusion over the specifics of custody arrangements, which could result in wasted police and court time.

Versions of the law could be written to avoid many of these scenarios, but prior experience with laws passed in an atmosphere of great fear or desire for vengeance doesn’t bode well. Consider California’s “three strikes” law, passed after the murder of 12-year-old Polly Klaas, who was kidnapped and killed by a man in violation of his parole for a previous crime.

The law’s intent was to increase mandatory prison time for repeat violent criminals. But its unintended effect was the increased sentencing of non-violent addicts and petty thieves to 25 years to life. That has resulted in a massive surge in prisoners and billions of dollars annually in related costs, without a greater corresponding decline in violent crime than seen in states without three-strikes laws.  The Supreme Court recently ruled that California must release 30,000 prisoners due to inhumane conditions.

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Similarly, “Megan’s Law,”—which created sex offender registries— was named for seven-year-old Megan Kanka who was killed by a convicted sex offender in New Jersey and became federal law in the aftermath of fear after that crime.  But studies show that it does not reduce recidivism by sex offenders and has driven some into homelessness, making them even harder to track.

Written carefully — and with reasonable judgment used by prosecutors — effective legislation around these issues is possible. But in a country that already locks up 2 million citizens, do we really need another reason to add to the incarceration epidemic?

Maia Szalavitz is a health writer at TIME.com. Find her on Twitter at @maiasz. You can also continue the discussion on TIME Healthland’s Facebook page and on Twitter at @TIMEHealthland.

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