Legislative Epidemics: A Cautionary Tale of Criminal Laws that Sweep the Country
61 Pages Posted: 27 Aug 2009 Last revised: 27 Aug 2011
Date Written: August 27, 2009
Epidemic. The word conjures up thoughts of a virus that spreads from one part of the country to the other. It might even be used to describe sweeping change in social behaviors. But what if it were used to describe the passage of legislation? In this piece, I reconstruct the series of forces, both legal and social, that conflate to produce, what I term, a “legislative epidemic,” suggesting that legislation takes hold and multiplies across the country in much the same way that a medical outbreak becomes an epidemic, or a piece of clothing becomes the “must-have” item of the season. Tracking a variety of criminal legislation, including laws on drunk-driving, Three Strikes, and sex offender registration, the article reveals the forces behind their evolution, the tragic stories that galvanized the public, and other factors that contribute to their spread. When properly conceived and executed, the legislative epidemic provides a common framework of language for national decisionmaking to address a perceived gap in the criminal law. But this article is also a cautionary tale about laws that are fueled by high profile cases, emotion-laden rhetoric, and inaccurate, but embedded, assumptions about crime and criminals. The same set of forces responsible for the dramatic spread of a law also makes the legislative epidemic particularly vulnerable to systemic problems that include runaway legislation and failed execution. And like a medical epidemic whose virology changes over time, legislative epidemics are susceptible to mutation, where succeeding generations of law prove to be more ferocious than the initial legislation. Awareness of these failings sounds a call to action, and this paper offers guidance to lawmakers and courts on their needed responses.
Keywords: legislation, criminal law, sex offender registration, three strikes
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