Rare tragedies don't make good laws

  • Article by: GAIL ROSENBLUM , Star Tribune
  • Updated: July 13, 2011 - 7:14 PM

Few could miss last week's frenzied protest over the acquittal of Casey Anthony, whose 2-year-old daughter, Caylee, was found dead in 2008, five months after being reported missing by her grandmother. Then-22-year-old Anthony told family members that her daughter was with an imaginary nanny.

"It's very sad that we even need a law like this," said Florida State Rep. Scott Plakon, a co-sponsor of "Caylee's laws." The proposal would charge any parent with a felony for not promptly reporting a missing or dead child.

But we don't need a law like this, no more than we need to ban one of summer's great joys: reaching for a baseball in the stands.

That, too, was suggested last week after a 39-year-old man leaped to catch a ball for his 6-year-old son, lost his balance and fell 20 feet during a Texas Rangers game.

Two more different parents would be hard to find, particularly in the same week's news cycle. There was Anthony, safer in jail than she's likely to ever be outside it, an allegedly selfish, pathologically lying party girl who prosecutors contend killed her daughter to free herself from grown-up responsibilities.

On the opposite end of the planet was Shannon Stone, a veteran firefighter, whose last selfless act was an attempt to thrill his baseball-loving son. Before dying, he asked paramedics to please take care of his boy.

Then, swiftly, the predictable cry for legislation. Let's resist, for lots of reasons.

Legal scholars have a wise expression: "Hard cases make bad law." Its roots go back to 1842, when a judge had to rule on whether third parties could sue for injury. The judge empathized with the plaintiff but ultimately ruled that laws are "better drafted under the influence of the average case rather than the exceptional one."

More than 150 years later, many legal scholars agree, arguing that laws birthed from exceedingly rare crimes are too sweeping. You just never know what ill-fitting cases will get caught in the legal net.

"You create a law based on some weird, extreme case and what you discover later on is that it sweeps in other things," said political scientist Herbert Kritzer, a University of Minnesota law professor.

Such "knee-jerk laws," as he calls them, too often end up with a, "Wait! I didn't mean that!" As an example, he points to the 20-year-old who has a falling out with his 16-year-old girlfriend. "He gets arrested, even though the relationship was consensual, and he has to register as a sex offender. These kinds of unanticipated cases happen all the time."

Such laws also dilute resources, both human and monetary, noted Hamline School of Law Prof. Marie Failinger. The Rangers' field, for example, already exceeds safety codes.

"If you're going to start regulating for every harm that might possibly occur, the extra costs will be too great," she said. As resources are divided into smaller pieces, "prosecutors will be stretched, and some things will be under-enforced because of that," she said. "With over-regulation, enforcers start getting enforcement fatigue. There's so much to do that they stop caring about the people they are trying to help."

There are, of course, many heinous human acts for which our laws are essential to protect the greater populace. The Anthony case was, by most accounts, an outlier. Jurors didn't say she was innocent. They simply didn't have enough evidence to convict her beyond a reasonable doubt, the highest standard of proof that must be met in a criminal trial.

Ultimately, laws built around rare cases are unrealistic. As much as we'd like to, we cannot legislate away all human tragedy, any more than we can legislate away all risk. Few know this better than a guy who runs inside burning buildings.

"Tragedy and accidents can happen anyplace," said Minnesota Twins spokesman Kevin Smith, who was part of discussions last week about the Stone tragedy and what, if anything, should be done here. "We took great care in constructing Target Field to do the best we can to protect people from dangerous situations. When we throw the ball up into the stands, it pretty much always goes far beyond the first row."

Smith believes those tosses should continue. The beauty of baseball, he said, is that moment when a ball hits the mitt of a starstruck kid, or a starstruck grown-up. "The look on his face, that's a lifetime memory," Smith said.

It would be a shame to honor Stone's memory, his love of family, of service and of baseball, with a law that takes away the precise joy for which he was reaching.

Gail Rosenblum • 612-673-7350 gail.rosenblum@startribune.com

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