By John Felipe Acevedo*
*Visiting Lecturer of Law, University of Alabama School of Law. J.D., University of Southern California Gould School of Law and Ph.D., The University of Chicago. I would like to thank Richard Delgado, Jean Stefancic, Jenny Carroll, Ron Krotoszynski, Al Brophy, Eve Hanan, Ben Levin, and Anna Roberts for comments on various aspects of the project; Richard Helmholz for his guidance on earlier work exploring the criminal law of colonial Massachusetts; the members of the Junior Faculty Workshop at the University of Alabama School of Law; the participants of CrimFest!; and the faculty at Duquesne School of Law for their comments. As always, I thank Deepa Das Acevedo for her comments, corrections, and inspiration. All errors remain mine alone.
Throughout American history the public has been gripped by fantasies of criminal activity. These crime fantasies manifest in two distinct but related typologies: witch-hunts and crime panics. On the one hand, witch-hunts target individuals based on their beliefs and are exemplified by the two Red Scares of the early and mid-twentieth century and the persecution of the Quakers in seventeenth century Massachusetts Bay. These are fundamentally distinct from crime panics, which target activity that was already classified as criminal but do so in a way that exacerbate deep procedural deficiencies in the criminal justice system. Crime panics are exemplified by the Salem witchcraft trials and the “Satanic Panic” of the 1980s and 1990s. President Trump’s relentless focus on undocumented immigration can be seen as a partially successful attempt to create a crime panic, while, perhaps surprisingly, the investigation by Robert Mueller is neither a witch-hunt nor a crime panic. By bringing ongoing criminal law issues into conversation with legal history scholarship, this article clarifies our understanding of the relationship between politics and large-scale criminal investigations and highlights areas for future reform.
The President and First Lady, who hated being a political wife, were barely speaking anymore. An “aide, joked that his duties included briefing [The President] on how to kiss his wife.” The President was himself “increasingly moody, exuberant at one moment, depressed the next, alternately optimistic and pessimistic, especially in his nocturnal phone calls.” Longtime friends who had no direct involvement in the core of the Special Prosecutor’s case were being ensnared in the investigation. His closest aides, even his White House counsel, were talking with the Special Prosecutor and trying to cut deals. The President and his allies called the investigation a “purge” and a “witch-hunt.” “He wondered aloud . . . whether it was worth it to stick things out and fight and then vowed he would never be driven from office.” President Nixon would not finish his term in office.
The Watergate scandal transfixed the nation. Two of the primary investigators, Bob Woodward and Carl Bernstein, would write a bestselling book even before all of the trials had ended. Whether it involves high-profile defendants or specific types of criminal activity, social theorists have attributed this fixation as arising from both fear and voyeuristic tendencies. Watching crime shows—true-crime shows in particular—allows the audience to experience fear in a controlled and safe environment. Similarly, crime entertainment allows the public to indulge in voyeuristic fantasies similar to viewing pornography from the comfort of their homes.
But when the public’s fantasization of crime begins to influence the criminal justice system, it creates profound issues of unfairness. This article shows that there are two distinct types of crime fantasies: witch-hunts and crime panics. Witch-hunts create new crimes by penalizing people because of their beliefs, while crime panics involve the overzealous prosecution of a particular type of crime. These two types of related, but distinct, crime fantasies ought to be kept separate for the sake of conceptual clarity and to enable tailored criminal justice reform.
In true witch-hunts new laws are passed to target a disfavored ideological group. The type of ideology involved is not significant—as Part II will show, both religious and political ideologies have been the focus of witch-hunts over the course of American history. Instead, the defining feature of a witch-hunt is that the criminal system is deployed to target a group of persons because of the group’s beliefs. In other words, witch-hunts reflect a breakdown of substantive due process or equal protection through the passing of unfair laws designed to target the disfavored group. Paradigmatic American examples include the targeting of Quakers by the colonists in the Massachusetts Bay colony and the Red Scares of the twentieth century.
In contrast, crime panics focus on an existing type of criminal activity but with a zeal that exacerbates weak points in the criminal law system. Crime panics produce unjust trials, overly harsh punishments (including the passing of new punishments for existing crimes), and, at their worst, wrongful convictions. Consequently, they exacerbate either existing flaws in criminal procedure or a breakdown in procedural due process. Unlike witch-hunts, crime panics are unrelated to ideological position, although they may rely on stereotypes of particular groups and thus disproportionately affect protected classes. Crime panics are exemplified by the Salem Witchcraft trials and the Satanic Panic of the late twentieth century, among numerous others.
As discussed above, both witch-hunts and crime panics contain an element of fantasy in them. This fantasy can be seen in witch-hunts in the disproportionate and unjust fear of a group of persons because of their beliefs. Similarly, crime panics are based on a disproportionate fixation on a type of criminal activity. Nevertheless, a distinction needs to be drawn between the types of crime fantasies—to more accurately understand landmark events in American criminal law and, more importantly, to enact criminal justice reform. Witch-hunts—although more odious, given their intentional targeting of specific groups—are easier to identify and cure. Religious minorities are now largely (if not always satisfactorily) protected under the First Amendment. Similarly, the Red Scares have abated and have not risen again. To be sure, there is great room for improvement. But true witch-hunts are increasingly unlikely to occur in American society. In contrast, crime panics are far more difficult to resolve as they criminalize behavior that society wants criminalized but introduce or rely on processes that undermine individual rights.
Additionally, although both witch-hunts and crime panics can appear to target individuals solely on the basis of suspect classifications—particularly race and national origin—this is not a required or even dominant feature of either phenomenon. Indeed, some events that would seem to be either a crime panic or a witch-hunt precisely because they turn on suspect classifications (such as the internment of Japanese during World War II) do not fit well into either category because no ideology is implicated and no criminal activity triggered state action. The interplay of race with witch-hunts and crime panics will be discussed in Section I(c) and Section II(d).
Part I explores two paradigmatic incidents of witch-hunting: the seventeenth-century persecution of Quakers in the Massachusetts Bay colony and the Red Scares of the twentieth century. Part II examines the Salem witchcraft trials and the Satanic Panic of the 1980s and 90s and shows why they are exemplary crime panics. This part also explains why the investigation by Special Prosecutor Robert Mueller is neither a witch-hunt nor a crime panic despite considerable political rhetoric to the contrary. As this broad cross-section of American history demonstrates, the distinction between witch-hunts and crime panics is both deep seated and wide ranging. Finally, Part IV articulates why the distinction between the two types of crime fantasies, witch-hunts and crime panics, matters—they exacerbate different weaknesses in the American criminal system and demand different solutions—and suggests some possible reforms to the criminal law. When we haphazardly lump these events under one descriptive term, we hamper our ability to engage targeted and effective criminal law reform.
 Bob Woodward & Carl Bernstein, The Final Days 165 (1976) (The authors attribute the comment to Lieutenant Colonel Jack Brennan).
 Id. at 104.
 Lawrence Mayer, Rebozo Blasts Hill Unit Staff, Wash. Post, May 21, 1974, at A7 (Rebozo was not involved with any aspect of the Watergate break-in or cover-up, but was ensnared in the investigation for his role in campaign finance irregularities associated with Nixon’s re-election).
 John Dean, The Nixon Defense: What He Knew and When He Knew It 363 (2014).
 See, e.g., Mayer, supra note 3, at A7 (Rebozo called the congressional investigation a witch-hunt); see also, e.g., Aldo Beckman, Nixon Complains Probe has become a Purge, Chi. Trib., April 21, 1974, at 6; see also, e.g., William Safire, Why the President should not Step Down, Chi. Trib., November 7, 1973 (arguing that investigation was a miscarriage of justice that harmed the country).
 Woodward & Bernstein, supra note 1, at 104.
 See e.g., Christopher Lehmann-Haupt: Books of the Times: Story of an Unfinished Story, N.Y. Times, May 14, 1974, at 35 (noting that All the President’s Men was published at the same time as three editions of the White House transcripts, which distracted readers from their book).
 See generally Carl Bernstein and Bob Woodward, All the President’s Men (1974); see also Best Sellers, N.Y. Times, Dec. 29, 1974, at 25 (noting that at the end of 1974, Woodward & Bernstein’s book had been on the New York Times’ Best Sellers list for 31 weeks); see also Doris Kearns, A Whodunit Without an Ending, N.Y. Times, June 9, 1974, at 7-1 (discussing that Woodward and Bernstein published their book before the end of the trials, making it feel unfinished).
 See Thomas H. Pauly, The Criminal as Culture, 9 Am. Lit. Hist. 776, 776–77 (1997) (stating that criminals represent fear of the other, which can lead to scapegoating of unpopular groups for the ills of society. But, under social pressures, such as the Great Depression, the public can see criminals as heroic and the system as corrupt); see also Scott Bonn, Why we are Drawn to True Crime Shows, Time Mag., Jan. 8, 2016 (discussing his own research into the subject and concluding that the fixation on crime, and especially murders, is a form of spectacle-gazing that is made powerful as it triggers fear in an exciting and controlled way; viewers do not actually face the killer directly).
 Slavoj Zizek, Looking Awry, 50 Oct. 30, 35–39 (1989) (discussing crime movies, such as Manhunter, as being equivalent to pornography as both involve a voyeuristic tendency).
 Bonn, supra note 9.
 Zizek, supra note 10, at 35–39 (noting that while crime movies involve us taking on the Lacanian gaze of the other, pornography inverts this paradigm by turning the gaze back onto the pornography viewer who is the target of the arousal seen on film and thus the true object of the film rather than the pornography actors).
 See Lisa A. Kort-Butler & Kelly J. Sittner Hartshorn, Watching the Detectives: Crime Programming, Fear of Crime, and Attitudes about the Criminal Justice System, 52 Soc. Q. 36, 51–53 (2011) (describing a correlation between the types of programming that people watch and their fear of crime and attitudes toward how to deal with crime; the more police shows watched the higher the fear in crime and harsher attitudes toward criminals); see also Mark Fishman, Crime Waves as Ideology, 25 Soc. Probs. 531, 531, 534–36 (1978) (proposing that crime waves are media constructions based on the way actual crimes are presented to the public to make it appear that a crime wave is occurring).
 See, e.g., John Hagan, Who are the Criminals?: The Politics of Crime Policy from the Age of Roosevelt to the Age of Reagan 157–61 (2010) (describing the passage of the Anti-Drug Abuse Act of 1986 as linked to the media focus on the death of a star college basketball player as well as the subsequent failure of the desperate sentencing between powder and crack cocaine to significantly reduce crime).
 See Bernard Schissel, Blaming Children: Youth Crime, Moral Panics and the Politics of Hate 82–85 (1997) (finding that aboriginal youth are more closely watched by the police as are males over females and those youths living in urban centers, which leads to a disparity in their arrest rates); see, e.g., Grace Palladino, Teenagers: An American History 81–85 (1996) (discussing the juvenile delinquency panic of the 1940s, which linked comic books and science fiction movies to a rise in juvenile crime and gangs).
 See, e.g., Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) (striking down on First Amendment grounds the prohibition of ritual sacrifice of animals when it was passed by the city to target Santeria practitioners).
 Although political dissidents in American democracy have been unfairly targeted, individuals like Upton Sinclair were arrested for such absurd things as reading the Constitution in public. Upton Sinclair, The Autobiography of Upton Sinclair 228 (1962).
 But see Erwin Chemerinsky, The Case Against the Supreme Court 77–82 (2014) (describing the detentions of American citizens as enemy combatants on U.S. soil in contravention of the Constitution).
 See generally, e.g., Mara Leveritt, Devil’s Knot: The True Story of the West Memphis Three (2002) (telling the story of three teens convicted for murder on dubious evidence in large part because they were seen as Satan worshipers by the police, district attorney, and jury).
 Schissel, supra note 15, at 82–85; see also Palladino, supra note 15, at 81–85.
 Korematsu v. United States, 323 U.S. 214 (1944), overruled by Trump v. Hawaii, 138 S.Ct. 2392 (2018) (noting Korematsu’s only crime was not leaving the evacuation zone; he had no connection to the Japanese government).