Donald Trump claims to be running for president as an outsider. But his campaign has resorted to one of the oldest tricks in the book in touting “Kate’s Law.”
Named after Kate Steinle, who was allegedly fatally shot by a Mexican national in the country illegally, the law would set a mandatory minimum prison sentence of five years for anyone who returns to the United States after having been deported. Trump says this is the bill he’ll send to Congress on his first day in the White House.
Bills named after sympathetic victims are the worst form of knee-jerk lawmaking, but it’s a surefire political vote-getting device. A politician holds a press conference standing next to the victim’s family; this gets the bill on the news. Because of terse media coverage, voters think said law will actually do something for a victim or potential future victims, no matter what the real legal changes are.
As law professor Ilya Somin notes, the public sees a high-profile case and has a “something must be done” reaction. Politicians cater to the voters’ demands, pass the law and proudly announce they have done something, regardless of whether it was good policy or even relevant.
A crime or event that apparently warrants a new law is by definition a rare occasion, often a high-profile tragedy where multiple things have gone wrong. Existing laws already make violent acts criminal, so the new law typically attempts to close some perceived loophole. But it almost always is an overcorrection that creates more problems than it solves.
For example, after Casey Anthony was acquitted of murdering her 2-year-old daughter Caylee five years ago, petitions were spread advocating a new, absurd law. It required a parent to report that a child was missing within 24 hours — as if that would be the thing that prevents parents from killing their children. In truth, parents who murder their children very rarely escape conviction; the idiosyncratic events of the Anthony case haven’t been repeated in the five years since.
Ten states actually passed a “Caylee’s Law,” laws that are weirdly unworkable. When would the 24 hours start? When little Timmy first left for the Boy Scouts camping trip? Most missing-child reports are false alarms as it is; requiring parents upon pain of imprisonment to report children missing as soon as possible swamps police departments with even more false reports. Parents in child-custody battles also get an incentive to harass ex-spouses with false reports, and hide behind Caylee’s Law for doing so.
“Megan’s Law,” a federal law, required all states to create draconian registries of convicted sex-offenders and notify the community of sex offenders in their midst. But such registries don’t just affect offenders — they also expose and victimize their family members. Depending on how a state implements it, Megan’s Law can also punish indefinitely crimes that are technically “sex offenses,” but are exceedingly unlikely to pose a danger to the public, such as public urination or consensual sex acts or sexting between juveniles. Even the U.S. Department of Justice has noted that registration requirements are being implemented without empirical evidence that they reduce crime.
New Jersey rushed to pass “Pamela’s Law,” banning the synthetic stimulants called “bath salts” after the press speculated that a man who murdered his girlfriend did so under the drug’s influence. Turned out that the indicted killer didn’t have the substance in his system, but the law is still on the books.
Kate’s Law shows the dangers of lawmaking by anecdote. Under current sentencing guidelines, undocumented immigrants typically serve 15 to 18 months before deportation. By creating a five-year mandatory minimum, it would expand the federal prison population by 57,000 prisoners and cost the U.S. Bureau of Prisons an additional $2 billion a year. It might even have the counterproductive effect of discouraging enforcement of the immigration laws, lest the system be overwhelmed.
As Rep. John J. Duncan Jr. (R-Tenn.) told the Wall Street Journal, “It’s just not a good way to do legislation, to exploit some terrible thing that has been done to some child.” Too many bad laws have been rashly passed by legislators who were just trying to avoid looking callous toward a crime victim.
In Britain, legislation gets named by nonpartisan civil servants, not pandering politicians. The result is more sedately named laws.
Until we adopt similar rules here, we should be wary of laws named for victims. Presume that they are poorly thought through. The tactic is a telltale sign that someone is trying to win a debate with emotion rather than on public policy grounds.
Ted Frank is a senior attorney at the Competitive Enterprise Institute in Washington, D.C.