Why We Don’t Need Caylee’s Law

In the wake of the Casey Anthony verdict, a number of state legislators have proposed, either in their elective bodies or in the press, the enactment of a so-called “Caylee’s Law” to create or enhance penalties for not reporting death of one’s child. This is a bad idea for several reasons.

First, it has nothing to do with what happened to Caylee Anthony. It only has to do with what the Casey Anthony defense said happened to Caylee, which no one believes anyway. However, since murdering a child is already a crime and often an enhancement toward a death sentence, even when someone who might have done it gets away with it, the only new law available is one that covers what didn’t happen.

Second, what didn’t happen doesn’t happen very often. That’s what made Casey’s defense so unbelievable. It’s not what people do. Why do we need to create legislation for a non-existent need?

Because it meets a wholly different need. We need to feel good about ourselves. We need to feel that even though the law couldn’t do something to help Caylee, if we pass a law in her name, however remotely connected to actual events, we are creating some sort of justice for her. Is the need to feel good about ourselves, however ephemeral, a reason to enact laws?

Third, legislation by knee-jerk reaction is pretty much always a bad idea. Let me give an example from my other country, home to the Mother of Parliaments and the Mother of All Knee-Jerk Reactions. In August 1987, Michael Ryan, a mentally unstable man with a fascination for firearms, perpetrated what became known as the Hungerford Massacre. He killed 15 people  using a Beretta 9mm pistol, a Chinese version of the AK-47, and an M1 carbine. This is the first time that anyone in Britain had committed this sort of gun crime.

In response, Parliament outlawed all semi-automatic and pump action rifles and shotguns, any shotguns other than single shot or double barrel, and any shotgun with less than a 24 inch barrel. Remember, a shotgun was not even used in the crime. Also outlawed were any revolvers other than muzzle-loaders. Remember, a revolver wasn’t even used in the crime. At this point, it probably won’t surprise you that they also outlawed rocket launchers and mortars. To top if off, the Home Secretary (the cabinet minister in charge of law enforcement) was given the power to prohibit any firearm or ammunition not on the list, should he find it wise (or ideologically congruent) to do so.

All this legislation didn’t stop Thomas Hamilton from killing sixteen 5- and 6-year-olds in Dunblane, Scotland in 1996. The obvious answer was more legislation. The Conservative government wouldn’t do it, but lost in a landslide the next year. The first legislation by the Labour government was to outlaw all of the weapons left out of the previous ban and impose a mandatory five-year sentence for owning a gun.  As a result, gun crime in the UK has steadily climbed, from one-off incidences to regular occurrences.

So why do I give a worst case scenario for knee-jerk legislation? Surely the Caylee Anthony case and response is nothing like that. The problem is that we become accustomed to accepting knee-jerk reactions. We become accustomed to finding our national salvation in legislation, whether it is moral or economic, like destroying an economy with massive government debt in the pursuit of fixing a problem that was caused by massive debt in the first place.

Governments always over-react and when they over-react quickly, they tend to over-react disastrously. Even in the case of Caylee’s Law, look at the domino effect already in motion. The non-reporting of a child death is suggested in one case in Florida. I currently know of proposals for a Caylee’s Law in Alabama, Oklahoma, Maryland, Indiana, North Carolina, Kentucky, New Jersey, Pennsylvania, Texas, and of course Florida. One organization is pushing for a federal law.

This is all with a matter of days after the Casey Anthony acquittal. Had Casey been found guilty, these proposals would never have been considered. Justice would have been seen to have been done and everyone would have felt good about themselves. What does this say about the need for Caylee’s Law?

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Three Years is Not Six Days

It seems moral outrage does strange things to math skills. What is it with all the outrage over Casey Anthony being released next week? Headlines suggest that she is serving less than a week for lying to police. Twitterers and bloggers are beside themselves.

No one seems to realize that she’s actually being punished rather harshly. First, she’s gotten the maximum sentence. Second, she’s been sentenced to serve the penalty for each of the four count consecutively. Third, Florida is very stingy with time off for good behavior.

So many people seem to want the three years she’s been in prison to be substitute punishment for the murder she probably committed. It just doesn’t work that way. If she’s declared not guilty, she can’t be punished in a backhanded way. If her liberty has been deprived and she is found guilty of anything, she has to be credited for the time. That’s the way the law works for everyone else, and everyone is equal under the law.

I know it is hard for the public to stop rubbernecking at the train wreck that is the dysfunctional Anthony family and the tragedy of Caylee Anthony’s death. Surely there is another personal tragedy somewhere for people to latch onto and invest emotion. Let the law to its job.

Three years is three years.

Move along…

Disingenuous Interference in the Humberto Leal Case

Reading and listening to the news media, the uninformed might think that the international issues surrounding Humberto Leal’s execution have only just been uncovered. It might appear that the Obama administration has some sort of leg to stand on. These impressions are entirely without merit.

The whole issue Leal’s lack of access to Mexican consular officials after his arrest has been litigated.  Let’s set aside the facts that Leal never revealed his Mexican citizenship after his arrest and that his lawyers never raised the issue before, during or after trial, including his first trip up the habeas corpus ladder. When he filed a petition based on President George W. Bush’s order to the states that they review the cases of the 51 Mexican citizens on death row across the country at that time, that was fully litigated and denied by the Texas Court of Criminal Appeals (the highest criminal appellate court in Texas). He then filed a second federal habeas petition which was denied by the district court, appealed, and rejected by the Fifth Circuit in 2009 (573 F.3d 214).

The current administration and the media have tried to bolster their position (and yes, it is the same position) by suggesting that Bush endorsed the ruling of the International Court of Justice that led to his order that the states review the Mexican cases. Rather, Bush only ordered the review because he thought he was duty-bound to do so, because the US was a signatory to the Optional Protocol Concerning the Compulsory Settlement of Disputes to the Vienna Convention, which says that ICJ decisions are binding on the parties before it. He was under the impression that the Optional Protocol was binding on the states. However, in 2008 the US Supreme Court said no, in Medellín v. Texas (552 U.S. 491). Since the Supreme Court, not the Executive Branch, decides what is and isn’t the law, it didn’t matter what President Bush thought and it doesn’t matter what President Obama thinks.

The Supreme Court said no because the Optional Protocol is not self-executing. In other words, it requires enabling legislation. Now at the last minute, the Administration is arguing to the Supreme Court that enabling legislation has been filed in Congress and the Court should wait to see if it passes.  This is the only arrow left in the quiver of the Administration and it is blunted, bent, splintered and missing fletchings.

Congress has had three years since Medellín to pass enabling legislation. It chose not to do so with the proposed Avena Case Implementation Act of 2008, introduced into a Nancy Pelosi-controlled House of Representatives by four liberal Democrats. It never made it out of committee, not to mention across the Capitol.

Now Senator Patrick Leahy has introduced S. 1194. It has no chance of passage, despite the Administration’s repeated assertions that it’s strong support makes a difference. I seriously doubt it would get through the Senate, but it doesn’t have the tiniest hope of getting through the House. It is telling that amicus brief goes on and on about the Senate and does not even mention the House of Representatives.

It is not even as if the passage of S. 1194 would have any effect on the execution of Humberto Leal. It might give him a chance to have a court determine whether not having had consular access unfairly prejudiced his case. The chances of success in such a challenge are infinitesimal. Leal’s guilt in perpetrating a gruesome crime is indisputable. Even the Mexicans admit that.

The last shred of his case, if the Supreme Court were to stay the execution, and if the Congress were to pass S. 1194, is a court might find that had the Mexican government hired the right attorneys for him (if they even would have done so at the time), those attorneys would have presented evidence in his punishment phase differently so that the jury would not have given him a death sentence. The Administration insists in its brief that unless this charade is played out, relations with Mexico will be irreparably damaged and all Americans traveling abroad will be put at risk. There is simply no credibility in any of this.

Unlike the characterizations by the Administration and media, this case has nothing to do with Texas refusing to follow international law. The Supreme Court answered that in 2008. This cases had been litigated and re-litigated, examined and re-examined, for years. It is time for the sentence to be carried out and the Obama Administration to stop interfering.

What the Casey Anthony Trial Says About Us

Casey Anthony is not guilty. I didn’t say she was innocent. The former is a legal declaration, while the latter is a moral state. But what does the trial and the public reaction to the verdict say about us?

It tells us that the media likes pretty people and good story. And that we are easily led. Caylee Anthony had what in the UK could be considered the Madeleine McCann factor. Madeleine was the three-year-old British girl who abducted while her family was on holiday in Portugal in May 2007. She has never been found, but she has never been out of the headlines. She’s a pretty little girl with attractive parents who are doctors. Madeleine was certainly not the only British child to go missing  in 2007, but it would be hard to realize that from the media coverage.

How many other small children have been murdered in the United States since Caylee Anthony in 2008? How many have been neglected and abused? Sadly, most of them aren’t as photogenic as Caylee with mothers who act as bizarrely as Casey, or maybe they would have been noticed by the world at large. Maybe we would have been just as outraged when the parents were let go, often without the scrutiny of a trial or other judicial process.

I could give you examples from my own client list when I had a small inner-city neighborhood general civil and criminal practice that would make you upset and angry.  That is, if you were so incline to have a fraction of voyeurism that America at large has had for the Casey Anthony trial. However, I don’t have pictures and video and live court proceedings with celebrity commentators. None of the perpetrators or victims were particularly photogenic. It is unlikely that there will be any demand for me recount my stories and change the names to protect the guilty.

Yes, Caylee Anthony’s death was a terrible thing and Casey Anthony’s trial may very well have ended up in a miscarriage of justice. Many people have felt the need to vent their righteous anger. Most don’t realize it is anger they never would have had, but for the opportunity cable news channels found to grab advertising revenues.

But what are we doing about the terrible things that are happening much closer to home? What would happen if we invested the emotional effort expended on a family tragedy in Florida in praying for the needs around us? Into whose lives can we invest our time, so that they do not become a statistic unworthy of notice by FoxNews, CNN, and Court TV?

The Information Age, with instant access to the whole world, can be a good thing. It can also mess with our priorities. You can’t change a thing about Caylee and Casey Anthony. You can change the lives around you.

On Violent Video Games and Strict Constructionism

When the Supreme Court issued their opinion in Brown v. Entertainment Merchants Association on June 27, there was an outcry of despair for the future of America and its youth. How could the Court rule in favor of children having access to violent video games? What the commentators, conservative and otherwise, missed is that they didn’t.

Those who wanted a conservative response from the Court got it and now many of them don’t like it. Let’s summarize what the opinion of the Court, written by Justice Scalia, said:

First, a legislature cannot create new categories of speech unprotected by the First Amendment simply by weighing the value of the new category against its social costs and then prohibit it if it fails the test. Unlike sexual content, there is no American legal tradition of protecting children from violent content. Second, because the California law in question imposes a restriction on the content of protected speech, it is invalid unless the state can demonstrate that it passes the strict scrutiny test. In other words, it has to demonstrate a compelling government interest and has to be narrowly drafted to serve that interest. California said the compelling interest was helping parents who wish to restrict their children’s access to violent videos. Scalia said no, parents can choose what their children watch and the voluntary rating system is there to help them. And stores don’t have to sell the videos to children. Thus, children are already protected.

As might be expected, Scalia strictly construed the First Amendment. If some other form of speech were before the Court, we would be glad that he did. We would be glad that he and the justices in the majority hadn’t created a new legal tradition. The view taken by Justice Alito, concurring in the judgement but not for this reason, and syndicated columnist Cal Thomas, is that the framers of the Constitution could not have anticipated modern technology and so we have to fill in the gaps for them. How many times have conservatives decried that very principle being applied in the past? We want a conservative, strict constructionist court unless it is inconvenient.

As to the second line of argument, Scalia said that if California had a compelling interest in keeping children from watching violence, it would have to outlaw Saturday morning cartoons, which for generations have depicted extreme violence. Likewise, it would have to outlaw violence in movies available to children. However, instead of comprehensively addressing the issue, it simply responded with a knee-jerk reaction to a new distasteful form of depiction.

The decision was 7-2 because even Alito and Chief Justice Roberts recognized that California had not drafted the legislation strictly enough to pass constitutional muster. “For better or worse, our society has long regarded many depictions of killing and maiming as suitable features of popular entertainment, including entertainment that is widely available to minors.” (Alito concurring in judgment, slip opinion at 6)  California would have had to have been very specific about exactly which kinds of depictions were illegal for minors and then demonstrated the compelling reason to “help” parents with regard to those depictions.

Finally, I need to address some flawed reasoning floating out there in the op/ed columns by writers who are convinced that they are much more in touch with the real world that the justices. For convenience, and since I’ve already linked to him, I’ll use Cal Thomas as an example. Thomas writes:  “Justices should step out of their safety zones and experience life on urban streets where mortal combat is for real and shootings are as commonplace as corrupt politicians. Where do armed teenagers in roving gangs get the idea that life is cheap and can be so easily taken without regard to social mores?” Thomas fails to recognize that gang violence far pre-dates the latest (or even the earliest) round of video games.

In this case, Scalia notes, the State of California tried to use psychological studies that

purport to show a connection between exposure to violent video games and harmful effects on children. These studies have been rejected by every court to consider them and with good reason: They do not prove that violent video games cause minors to act aggressively (which would at least be a beginning). Instead, nearly all of the research is based on correlation, not evidence of causation, and most of the studies suffer from significant, admitted flaws in methodology. They show at best some correlation between exposure to violent entertainment and minuscule real-world effects, such as children’s feeling more aggressive or making louder noises in the few minutes after playing a violent game than after playing a nonviolent game. (slip opinion of the Court at p. 12-13, internal citations omitted, emphasis mine)

Does this mean that disgusting violent video games are good, for children or otherwise? No. Are they offensive to Christian morality in suggesting that life is cheap and disposable? Certainly. However, we don’t use a combination of our disgust and specious arm-chair psychology to cut a chunk out of First Amendment jurisprudence.

The Supreme Court did not rule in favor of children having access to violent games. Rather, it ruled in favor of parents controlling access to violent games.

I will venture to suggest that as a father of nine, Justice Scalia knows a bit about raising children. He also knows a bit about the Constitution. I agree with him that it is better to keep the latter out of the business of the former.

The Cost of Littering

You have to wonder when Revenue and Customs workers finally starting thinking something might be up. Charlene Ostle kept ringing them up and changing the number of children she had, thus entitling her increased benefits.

She told them she had three sets of twins and two sets of triplets, all before reaching the age of 26. At one point she had given birth to five children in three months.

Even though she knew what she was doing was wrong, she said her pride kept her from asking from help. What? She had no shame in claiming to have had all of these children out of wedlock and no shame in asking the Government for help.

It got her £30,000 in benefits and remarkably only a nine-month suspended sentence. She was spared jail in part because she is actually pregnant with her third child.

Extended Binge

In another spectacular failure for the Government, the introduction of 24-hour drinking laws has resulted in a trebling of drink-related cases in the A&E (ER) department at a London hospital.

In March 2005, there were 79 night time cases involving patients with an alcohol-related problem. By March 2006, there were 250.  In addition to this, there were 27 alcohol-related assaults treated in March 2005. In March 2006 there were 62.

This is just one hospital. The Department for Culture, Media and Sport says that it is not representative of the country. The DCMS seems to have missed this from last year:

A report by the Centre for Public Health said binge drinking is overloading hospitals, reducing life expectancy and fuelling violent brawls.

At the beginning of the year a survey found that hospitals were having to deal with a significant rise in alcohol-related injuries in the wake of 24-hour drinking laws.

It revealed that many casualty departments have seen a greater volume of patients hurt in booze-fuelled fights or accidents.

Accident and emergency units are also finding problems extending much later into the night – increasing the demands on already hard-pressed staff.

The Government said the open-all-hours approach would end binge drinking, because none one would need to quickly quaff before closing time. Instead, the binge just goes on longer. Too many British drinkers just have no self-control.