I chittered with the toddlers, Nancy and Michelle, about winterbanyan’s thoughtful Midday Matinee yesterday. Hawks and other predators are a daily risk for squirrels. We love our children and try to protect them as best we can. We teach them safety rules such as looking very carefully before crossing an open area. Mrs. Squirrel and I haven’t lost any of our children, but we know squirrels who have.
It’s both natural and good to try to learn from tragedies. Sometimes we learn good lessons, what we shouldn’t have done or could have done better. But sometimes we learn the wrong lessons, and that’s especially common when we try to generalize a lesson from one exceptionally horrific event.
Consider the Caylee’s Law petition and bills now being proposed in state legislatures around the U.S. These are a well-intentioned response to the tragedy of Caylee Anthony, a two-year-old girl who died in Florida in 2008. Although the medical examiner ruled her death a homicide, doctors could not determine the cause or circumstances of her death, in part because Caylee was not reported missing for nearly a month after her disappearance. Caylee’s Laws would make it a crime for parents to not report a missing child within 12 to 48 hours, depending on the state, and/or to intentionally give police false information about a child who disappears, is seriously injured, or dies.
While New Jersey has passed a law requiring parents to notify police of a missing child within 24 hours, most other state legislatures are pausing to reconsider whether such bills are necessary or indeed may cause more harm than good. Critics ask how few parents fail to inform police when their children are missing – thus how few children Caylee’s Laws might protect – compared to how many parents might falsely report missing children for fear of prosecution, or how many parents might be falsely charged because they don’t know their children are in danger.
These are important questions to ask. As The Nation‘s Sarah Stillman writes, hosts on cable news and other infotainment outlets “have championed a growing list of laws inspired by the tragic cases of young, white female victims: Jessica’s Law, Megan’s Law, Joan’s Law and others.” Routinely hailed upon passage as ‘keeping children safe,’ most such laws have proved costly to implement and and only marginally effective. Some have been applied far beyond their original scope to ensnare tens of thousands in the criminal justice system.
There is a legal adage that “Hard cases make bad law.” Originally coined in reference to common law and appellate decisions by judges, it applies equally to laws enacted by legislators. In the case of Caylee’s Law and similar actions, the adage suggests that shocking events often result in legislators working to ensure that such events never happen again. These laws reflect humans’ heartfelt wish to solve problems Once And For All.
That same Once And For All impulse drove the passage of the Patriot Act after the horror of 9/11, the internment of Japanese-Americans after the Pearl Harbor attack, and the Alien and Sedition Acts passed in the U.S. during the French Revolution. These and countless other such laws, enacted quickly in response to horrific events, have almost invariably overreached and often became stains on our history.
So while some are frustrated to see state legislatures hesitating over Caylee’s Laws, I’m not. It’s worthwhile to pause and ask whether her tragic death signals a dangerous gap in existing law, or a “hard case” tempting us to overreact and cause more harm than we prevent.
Part of me wishes humans could learn that lesson, Once And For All. But not even squirrels are that wise.
Good day and good nuts.