“Caylee’s Law:” Unconstitutional from the get-go

The outcome of the Casey Anthony trial sparked a drive for a new law. “Caylee’s Law,” as it has been dubbed after Anthony’s daughter, would impose on parents a duty to report the death or disappearance of their children in the event such a tragedy occurs.

If a report isn’t filed within a certain period of time, the parents of the child can be charged with a felony. Anthony, who was largely exonerated by the jury, waited approximately one month before telling the police that her daughter was missing.

That fact that this proposal was made is not surprising; the outcome of the trial was sure to elicit strong emotions no matter which way the jury went. But given that the media had long since declared Anthony guilty, when the innocent verdict was read it set off a firestorm.

That blaze gave life to an online petition calling for this new law. In only a few days’ time, that petition had over 250,000 signatures.

No matter how large such movements are at the start, those like the one behind Caylee’s Law have historically petered out over time. Emotions cool and people go back to their day-to-day lives, unless more fuel is thrown on the fire. The internet is a self-fueling fire. It is astonishing how much support this proposal has gained and how quickly.

Though it’s hard not to sympathize with the outrage that people feel over the jury verdict, if Caylee’s Law were put into effect, it would only lead to a waste of taxpayer dollars. At its core the proposal is clearly unconstitutional.

The courts of Maryland have already considered this issue. The case of In re Ariel G., 383 Md. 240 (2004) involved the trial of a mother who had allegedly helped her child run away from foster care. When the mother refused to testify as to the whereabouts of her child, the trial court held her in contempt. The mother appealed the trial court’s decision based on her Fifth Amendment right not to testify.

The Maryland Court of Appeals sided with the mother, holding that forcing her to testify would violate her right not to self-incriminate. The court based its holding in part on Hoffman v. U.S., 341 U.S. 479 (1951). In that case, the U.S. Supreme Court stated that the Fith Amendment is implicated where compelled testimony would “furnish a link in the chain of evidence needed to prosecute the claimant for a…crime.”

This law, if passed, would violate the principle laid out by the Supreme Court in Hoffman. Not only would it force people to speak despite the possibility of future criminal consequences for the speaker, it would punish those who chose to remain silent for simply keeping their mouths shut.

There are other reasons why Caylee’s Law would be unconstitutional, not the least of which is that it would run counter to federalism. Child protection laws are a matter left to the states to determine.

Any politician should think twice before getting behind this movement. Tempting as it may be to ride the groundswell of public opinion, passing Caylee’s Law would be a disservice to our democracy. Laws should never be based on visceral, in-the-moment emotional responses, and this proposal epitomizes the term “knee-jerk response.”

— Bryan D. Utter, Esq.