Every time that there is a tragedy, the immediate reaction – from public and politicians alike – seems to be to try to adjust the law to prevent such things from occurring. And – if they can’t be prevented, to create a consequence which would keep any rational person from committing the act. Unfortunately, neither reaction tends to work well.
Does the name Caylee Anthony ring a bell with anyone? She was the child whose mother did not report her missing for thirty one days. The mother eventually stood trial and was acquitted in a Florida court. Subsequent to the jury’s verdict, websites across the nation popped up encouraging the creation in each state, as well as federal passage, of a law to make it illegal for a parent not to report a missing child. Most Texas prosecutors breathed a sigh of relief that it came up at the end of a legislative session, so Texas was spared the knee jerk reaction. The facts of the Anthony case are sad; there is no denying that. There is also no denying that there are already thirteen criminal laws in the state of Texas which cover the behavior targeted by what has become known as “Caylee’s Law”. Some provide less stringent punishment than is being requested, others more.
There is a maxim in law that “bad facts make bad laws”, referring to our tendency to try to legislate away the possibility of bad things happening. The result is often such a mish-mash of confusing statutes that enforcement becomes impossible. As a simple example, it is illegal in Texas to place or leave a child in danger. This law includes intentional, reckless and negligent acts, as well as actions of omission or commission. It is so tightly written that a defense had to be put into the law for children left to participate in athletics. There are several scenarios contemplated under the law that exists. Based on which scenario is charged by the prosecutor, the penalty can be as low as a state jail felony, or as severe as a first degree felony. The law is written in a way to help prosecutors protect children.
At least two versions of “Caylee’s Law” have been introduced already this session. Both conflict with the law as already written, and neither provide penalties as stiff as already available. One basic rule of construction that attorneys are taught is that a specific law must be applied before a general one. This means that, if “Caylee’s Law” passes, the punishment for a person who fails to report the missing child may actually be less than if the current law was left alone. Yes, the death of the child is a tragedy. Yes, there needs to be some remedy at law. No, it doesn’t have to have a new law passed, we need to use the laws we have.
A similar issue exists when the tragedies involving guns are considered. We have laws in place, and Texas has some of the most interesting. For instance, many who call the courthouse are amazed to realize that there is no gun registration law in this state, nor is there a federal requirement to register firearms. It is probably a good idea to know the serial number, make and model – but the owner is not required to share it with law enforcement. Texas allows the owners of property to deny others to carry weapons on their property, and it provides for an enhanced penalty if weapons (of any sort) are carried in particular places, such as schools. As was shown in the shooting in Houston this week, the fact that it is not legal is not necessarily going to stop people from carrying; unfortunately, some don’t have the sense to disagree without firing.
Overall, Texas has a fairly open gun law. The penal code provides that, as long as you are in your vehicle, the firearm is concealed, and you are not breaking the law in any other way (not DWI, no drugs in the car including marijuana), you are not prohibited from having a firearm, and you are not a gang member – then you are not committing an offense. When the young men in Houston carried their weapons onto school property, they broke the law.
Banning firearms will not avert tragedies like Sandy Hook and the Aurora theater shooting. Passing yet more laws on parenting will not prevent another Caylee Anthony. Tragedies break our hearts, and make us want to do “something” to prevent the pain from happening again; however, tragedy, to a certain extent, is part of life. Laws need to be passed in the bright light of day, and without emotion. They need to be considered, and written in a manner not to conflict with other laws already passed, and in a manner to be enforceable. Quick action from law enforcement to react to a situation is laudable; quick action without thought to the consequences from law makers is not. Most of our problems are not created by one variable; rather, they involve a multitude of issues – mental health care, law enforcement, education, to name a few. While the knee jerk reaction may satisfy the physician giving a physical, it rarely works in other areas!
Lisa Peterson is the County Attorney for Nolan County. Comments about this column may be e-mailed to firstname.lastname@example.org .