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March 13, 2023

"Panicked Legislation"

The title of this post is the title of a new article authored by Catherine Carpenter which I missed when first posted here on SSRN, but now can be found in final form in print here at the Notre Dame Journal of Legislation.  Here is its SSRN abstract:

We are in the throes of a moral panic. It is not the first time, nor will it likely be the last, but it is among the most enduring.  Dubbed the sex panic, it has bred widespread and ever-escalating legislation, impacted the lives of more than a million people and their families, and caused public hysteria and violence.  And unlike other moral panics in our history that dissipated over time, there are no signs that the sex panic is diminishing.  Indeed, this panic grows more virulent with each passing year.

Panicked legislation is both the symbol and the result of a moral panic.  The article is uniquely situated, linking both social science and legal theories to offer a dynamic account of the world of moral panics, the mythical narratives that support them, and the inaccurate risk management assessment that plagues them.  It is ultimately a cautionary tale of hastily-crafted and fear-driven legislation that is fueled by the public’s distorted fear of a targeted group of people.

With a public unable or unwilling to hear the evidence, and political actors invested in their electorate, this article urges judicial intervention through the Irrebuttable Presumption Doctrine to challenge statutory schemes that are based on false assumptions that masquerade as universal truths.

March 13, 2023 at 09:04 PM | Permalink


Unfortunate that the author (intentionally?) conflates panic with justified, if serious, concern.

Posted by: Bill Otis | Mar 14, 2023 12:09:50 AM

This may be something your readers care to read:


Posted by: federalist | Mar 14, 2023 8:41:14 AM

Though I do not follow Minnesota crime or politics or punishment that closely, federalist, the Twin Cities (which I think are in different counties) would seem to be an interesting place to follow the impact of different county DAs on crime, politics and punishment. Of course, statewide (and even national) crime, politics and punishment may have a greater causal impact, and it is always hard to connect cause and effect in crime/punishment policies. But still seems worth watching if there are very different DA policies being implemented in neighbor cities.

Posted by: Doug B. | Mar 14, 2023 9:16:57 AM

If those two juveniles commit more violent crime, the consequences need to be owned by Ms. Moriarty.

Posted by: federalist | Mar 14, 2023 9:51:33 AM

Ultimately, the "problem" is that we live in a democratic republic. The legislative branch, not courts, not participants in the criminal justice system, and not academics, gets to write statutes. The legislative branch is elected by the voters. The voters in turn get their information from mass media which has historically been focused on sensationalistic, headline-grabbing stories that drive up the customer base. Detailed analysis of issues is the exception, not the rule.

But this problem is not new. The framers were well aware of it. You have portions of The Federalist Papers which discuss certain aspects of the Constitution designed to reduce the influence of momentary passions on politics. Despite these efforts, you will have passions and panics where today's latest sensational crime will lead to people in Congress and in the state legislature proposing "solutions" to reduce the likelihood of these crimes in the future. Much of that legislation will be ill-conceived and will do little to address the issues, but it shows the voters that their representatives care about these issues and are trying to do something which is enough to keep the public from voting their current representatives out for not fixing the problem.

Yes. It's a flawed system that results in flawed laws, but the alternative is a dictatorship of the self-proclaimed experts. Barring a violation of constitutional rights, it's not the job of the courts to save us from the stupidity of the legislative branch.

Posted by: tmm | Mar 14, 2023 11:03:13 AM

tmm, what I think you miss in the criminal law sphere is that often we have legislative solutions that are in response to the judicial branch abusing its discretion or entities like a parole board or parole bureaucracies really f'in up--e.g., Jesse Timmendequas, and we get things like RSOs have to tell cops their email addresses.

In a perfect world (yes I know), decisionmakers employ common sense--what idiot thought to put Jesse Timmendequas in a residential neighborhood full of kids with no warning? The sad reality is that decisionmakers aren't always up to the task, and some are downright daft. Legislation is the only way to "fix" these sorts of things. Why do we have MMs---because judges, as a whole, cannot be trusted.

"Barring a violation of constitutional rights, it's not the job of the courts to save us from the stupidity of the legislative branch." YEp.

Posted by: federalist | Mar 14, 2023 11:41:06 AM

Federalist, looking at my own state experience, there are some legislative actions that are responses to bad decisions, but there are also a lot of "boutique" statutes that address this year's crime du jour. And the crime du jour bill is much more common than the legislative fix in response to court decisions. (In part because we have a part-time legislature and the outrage over a bad decision frequently passes before the next legislative session starts.)

We have a decent robbery statute, but, a couple of years ago, our legislature felt the need to have a specialized statute for vehicle hijacking in response to a couple of news stories about recent vehicle robberies. With one minor exception, which could have been handled by a one phrase amendment to the robbery statutes, the offense is simply robbery involving a motor vehicle. Not a significant change to the law and it is the rare case where it matters which offense I charge, but it allows the members of my state legislature to claim that they did something in response to the issue.

Posted by: tmm | Mar 14, 2023 1:31:52 PM

tmm, hopefully no harm done with that vehicle hijack statute--I could see adding a strict liability element to such a crime, e.g., if there's a serious accident or the carjackers take off with a kid inside.

I did like some of the state statutes making it clear that when people surround your car in a riot that you get to get away.

Posted by: federalist | Mar 14, 2023 2:33:41 PM

We can have a conversation between federalist and tmm, or we can have a conversation between Keith Lynch and "anon" (however many there are now). Readers can judge for themselves which conversation builds brain matter, and which kills it.

Posted by: Bill Otis | Mar 14, 2023 5:33:29 PM

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