How the Fugitive Slave acts and new “bounty hunter” bills are alike
Apr 5, 2022
Episode 635

How the Fugitive Slave acts and new “bounty hunter” bills are alike

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And the financial incentives they create.

It’s been more than six months since Texas’ anti-abortion law went into effect. SB8 lets private citizens sue anyone who helped a pregnant person get an abortion after the six-week ban, which could come with a $10,000 payout.

Idaho just passed similar legislation, and other states are considering copycat laws, too. Some experts refer to these kinds of measures as “bounty hunter” bills, and they say there are aspects of them that are similar to the Fugitive Slave laws that required civilians help capture enslaved people and led to the Civil War. 

“It’s not unconstitutional to create ways in which private citizens can enforce the law. What does start to offend the Constitution is when you are encouraging people to act as bounty hunters when other folks are exercising a constitutional right. That’s going to be a problem for us,” said Kim Mutcherson, co-dean and professor at Rutgers Law School in Camden, New Jersey.

Mutcherson said these laws allow private citizens to line their pockets while undermining constitutional rights, which is outside the mainstream of lawmaking in this country.

On the show today: the parallels between Fugitive Slave laws and civilian enforcement laws of today. 

Later, we’ll talk about the cost of owning a home versus renting, and a revealing study about racial disparities and COVID-19.

Then we’ll hear from listeners about long COVID-19 and a twisted answer to the Make Me Smart question.

Here’s everything we talked about today:

Make Me Smart April 5, 2022 transcript

Note: Marketplace podcasts are meant to be heard, with emphasis, tone and audio elements a transcript can’t capture. Transcripts are generated using a combination of automated software and human transcribers, and may contain errors. Please check the corresponding audio before quoting it.

Kimberly Adams: Hello, I am Kimberly Adams, and welcome to Make Me Smart, where none of us is as smart as all of us.

Amy Scott: And I’m Amy Scott, it is Tuesday, which means it’s time for our weekly deep dive into a single topic. And today we’ve got a really interesting one about so-called bounty hunter-style legislation. And the big example you’ve probably heard is in Texas, which has created a financial incentive for private citizens to enforce anti-abortion laws.

Kimberly Adams: Right now, some people have pointed out how aspects of these laws seem awfully similar to the Fugitive Slave laws that led up to the Civil War. And that was where the government basically said that civilians had to help capture enslaved people. So today, we’re going to get smart about this history. And what it tells us about where we are now. And to help us get smart is Kim Mutcherson, dean and professor of law at Rutgers University. Welcome.

Kim Mutcherson: Thank you so much for having me.

Kimberly Adams: So what are those similarities between the Fugitive Slave laws or Fugitive Slave acts, as they’re sometimes called, and the recent anti-abortion legislation in Texas and now I guess all this other legislation in the works about a variety of issues elsewhere?

Kim Mutcherson: Well, the big similarity is just the starting point, the idea that you would give power to private citizens to enforce a particular law, and not only give them power to enforce that law, but give them financial incentives to enforce that law. So in Texas, if you successfully sue an abortion provider, under SB 8, which is the Texas law, you can win 10, at least $10,000. And that’s a lot of money, right. And it’s enough, certainly to entice people to sue abortion providers, but also to sort of, you know, turn in their neighbors and friends and family members who have exercised their constitutional right to terminate a pregnancy.

Amy Scott: We’ve had, you know, examples of laws that call on citizens to essentially report others, you know, for example, mandatory reporters with child abuse, people who are required to report if they learn something troubling. Also, I’m thinking of law enforcement agencies that offer rewards for information that lead to an arrest. How is this Texas law different? And what what’s more troubling about it?

Kim Mutcherson: A couple of things. So the first thing to think about is, at least for now, it is a constitutional right to terminate a pregnancy. So what we are talking about here are laws that are unconstitutional. And that are essentially saying, if somebody is actually enforcing a constitutional right, or is exercising their constitutional right, the person who was helping them exercise that right, can be punished for that. And can be fined $10,000, or more, and as well as having to pay attorneys fees. That’s just different, right? I mean, the idea that what we’re talking about here is people who are not doing something illegal, but actually exercising a constitutional right, that’s just different. The other thing that’s different about it is that it is a law that is very much set up to make it difficult for courts to review it. So a little bit of a civics lesson for all of us. Right?

Amy Scott: We could all use a civics lesson.

Kim Mutcherson: That never hurts. We have our executive branch we have our legislative branch, we have our judicial branch. And essentially, what Texas is trying to do is decide that its legislative decisions cannot be reviewed by the judicial branch. And that’s a problem as well, right? The system works because there are these three pieces to it. And we can have an argument about whether it’s working right now. But the system is meant to work by having these three pieces to it. And what Texas is trying to do is pull the judiciary out of this conversation. And that’s just deeply problematic.

Kimberly Adams: Aside from the Fugitive Slave laws, are there any other examples in American history that have followed sort of the similar citizen- as-enforcers, bounty hunter-style system?

Kim Mutcherson: It’s not something that’s been used in this way, particularly. So you know, there are statutes whether there’s civil rights statutes, or environmental justice statutes that sort of particularly think about well, there might be individual people who are going to bring this claim or whether it is you know, a factory that is spewing out pollution into a particular community. You want people to have access to the courts in order to stop that sort of thing. And in particular, what we sometimes refer to in the law, you know, encouraging people to act as private attorneys general, right. So sometimes you might have a state attorney general who is not interested in stopping that pollution. So we want to have private citizens have the ability to step in, in those cases. But again, a lot of what we see when you look at these kinds of statutes that are asking private citizens to act, are private citizens who are doing something that is protective, right. So again, mandatory reporter laws that say, if you suspect abuse or neglect, then you have to call in and you have to report that that’s very different, again, from somebody who’s exercising a constitutional right. And it’s also very different from saying, you’re not just going to do the right thing, because it’s the right thing to do, you’re going to potentially do the right thing, because I’m going to pay you a lot of money to do it. And that creates, I think, a really perverse incentive.

Amy Scott: I’m thinking about another example where there isn’t actually a financial incentive. But you know, the state of Texas has a new directive from the Governor, accusing families who provide gender-affirming care of child abuse, and reminding citizens basically, that they have a duty to report if they know about instances of child abuse, in a sense, you know, criminalizing the care that everymajor medical association has said is appropriate for transgender children. And I’m thinking about how both of these Texas examples are about health care, you know, very private decisions that people make, like you said, there is still a constitutional right to an abortion. I think that may be one reason a lot of people find this very troubling. And I wonder if you see this spreading, you know, beyond Texas?

Kim Mutcherson: Well we’re already seeing it spread beyond Texas. So you know, Idaho is also working to create a bounty hunter law. And so we do have these copycats, which was expected that we would have these copycats. And then of course, there’s also the possibility for copycats on the left, so California saying, “Alright, if this is what we’re going to do now, then let’s start giving people bounties for turning in folks who have, you know, assault weapons.” And you know, that I don’t think that’s where we want to end up. And I do think, frankly, that the U.S. Supreme Court, eventually, we’ll get around to raising some serious concerns about these types of statutes. But in the, for the time being, and we’ve seen this in Texas, people have not – many, many people have not had access to abortion in Texas for multiple months now. And so, you know, we see the clinics, sometimes clinics that are hundreds of miles away, that are now serving Texas patients, because Texas has made it impossible for so many folks there to have access to abortion services.

Kimberly Adams: You touched on this a second ago, but from history and from where we are right now, what do we know about the legal enforceability of these types of laws that that empower citizens to enforce a particular law? Whether it be you know, how this Fugitive Slave laws or any of these other versions of it.

Kim Mutcherson: So what we know is that it is in fact not, you know, it’s not on unconstitutional to create ways in which private citizens can enforce the law that just standing alone is not necessarily something that offends the Constitution. What does start to offend the Constitution is one, when you are encouraging people to act as bounty hunters when other folks are exercising a constitutional right, that’s going to be a problem for us. And what’s also really problematic is when you pass a law like this, and try to insulate it from being reviewed by a court, both of those things, right off the bat are going to be a significant problem for us. And there are some things where I think we are as a society are very comfortable with the idea of private citizens playing a role, right? Government can’t be everywhere, nor should it. Police officers can’t be everywhere, nor should they be. So they’re, you know, whether it’s citizen’s arrest, or as we talked about before reporting child abuse, or neglect, there is this sort of expectation sometimes that you do want private citizens to be involved. The issue becomes when we do so in such a way that we are actually using the law to deny rights, rather than to create or enforce them.

Amy Scott: What do you think this means for our society? Basically, when we essentially incentivize people to spy on each other, and distrust one another, I’ve been doing some reporting on the the Texas transgender directive. And you know, thinking about people who are nervous about sharing too much with their coworkers with their children’s teachers. That just seems kind of bad for everybody getting along.

Kim Mutcherson: I think that’s right. I think it’s bad for everybody getting along, although maybe the goal isn’t for everybody to get along. Right. I mean, that’s that’s sort of asking a lot of all of us.

Amy Scott: I suppose so.

Kim Mutcherson: Yeah, but But certainly, there is something about living in a society where people are, you know, turning each other in for money, which does feel really problematic. So I think a couple of things about that. So one is, again, if we, if we look back to the Fugitive Slave Laws, one of the things that happened is that there there was enormous pushback. So some northern states passed laws, specifically protecting people who themselves were protecting enslaved people. And there were lots of people who simply refused to enforce those statutes, right, they were working on the Underground Railroad, and they certainly weren’t going to take enslaved people and turn them back in. So on one hand, you sometimes potentially can get this push in what I would call the right direction, right? Where people see, alright, this is completely overstepping. And now I have to actually actively be the good person in this situation. And I think that’s a really valuable thing. But the other piece of it, and this sort of goes back to what you were saying about about health care, one of the things that I think people who, you know, may like SB 8, or think that the you know, the Texas law is great, because they are anti-choice is that you always want to sort of think, you know, two or three steps ahead, right, what what’s next, what’s possible here. And if it becomes the case, that we have the government making these kinds of decisions, parents can’t make health care decisions for their children, a pregnant person can’t make a health care decision about terminating a pregnancy, that is really going to the core of the expectation that lots of us have about being able to raise our family about being able to make decisions about our children about being able to make decisions about when, or if we want to have children. And if that becomes a sort of broader spectrum, that I think a lot more people are going to have things to be concerned about, and it will go much farther than gender affirming health care, or access to abortion. So it’s one of those sort of be careful what you wish for situations.

Kimberly Adams: Dean Kim Mutcherson, thank you so much.

Kim Mutcherson: Thank you.

Amy Scott: Yeah. Thank you so much for your expertise.

Kim Mutcherson: Absolutely. It’s a pleasure talking to you.

Kimberly Adams: Yeah, that, um, wow. That’s a lot.

Amy Scott: Yeah, Kimberly, that. I know, this was it was your idea. I’m so glad we talked about it really interesting parallels.

Kimberly Adams: Well, and this idea of what it means for the country more broadly, if this, if this kind of law does, you know, survive judicial scrutiny? You do have to assume that lots of other states on lots of other issues are going to try similar things. And so, you know, what will that mean for our day to day lives, if we have our friends, neighbors, colleagues and enemies, watching out for what we’re doing, and then you know, or accusing you of something and whether or not it’s true. Like one of – when we were prepping for this, one of the things about the Fugitive Slave laws was, you know, if somebody got accused of something, you know, you don’t didn’t necessarily have a lot of recourse when, you know, some fellow citizen maybe accused you of something. Let us know what you think about any parallels between the Fugitive Slave Act and recent legislation that allows civilians to enforce laws or do you think this is not actually a parallel at all or we’d love to hear your thoughts on this. Our number is 508-827-6278, also known as 508-UB-SMART. Or you can send us a voice memo at make me smart@marketplace.org. And we will be right back.

Kimberly Adams: Okay, now it is time for the news fix. Amy, you first.

Amy Scott: Kimberly, yes, well, look, I’m going to be talking about housing a lot. That’s my beat.

Kimberly Adams: But everybody is though.

Amy Scott:  Well, that’s true. It’s not just me. But I do lean a little heavy on housing. Um, so I saw this tweet from a housing consultant. I follow Rick Palacios Jr., from John Burn’s Real Sstate Consulting. And I know we can’t, you know, it’s hard to talk about charts on the radio or on a podcast. But this one is really interesting. And it shows the spread between the cost of owning a home and renting one nationally, going back to January 2000. And it’s based on the monthly mortgage payment for a single family starter home, which is kind of a funny term for like an affordable house, versus monthly rent. And right now may not surprise you to hear is way more expensive to buy to the tune of more than $400 a month. And that’s the biggest difference we’ve seen since 2007, as the housing market was beginning to collapse. For a while, between 2008 and 2012. It was cheaper, cheaper to own and again, around 2015 to 2016. But you know, we’ve just been seeing home prices go up and up and up. And I’m guessing that spread is going to get even wider as people buy now with these higher mortgage rates that I believe just topped 5% for the first time in years. So one caveat I want to point out is that this doesn’t take into account all the other benefits of owning like building equity, not dealing with landlords being able to paint your bedroom turquoise if you want to. But it also doesn’t take into account the other costs of homeownership, which anyone who’s had to do repairs or like replace a roof or a furnace knows very well. But this speaks, I think to just how hard it is for many renters to become homeowners right now if they want to.

Kimberly Adams: Yeah, I’m sorry, you mentioned this a second ago, but I’m just trying to understand how much of this gap is the rising interest rates and how much is just the, you know, difficulty in the market overall and supply?

Amy Scott: I think it’s the rising prices because this data looks like from the chart, it goes back to January 2022. So that was before rates really started going up in earnest. So I think we’re just gonna see that cost difference get higher, although rents are going up too. So it’ll be interesting to watch.

Kimberly Adams: Yeah, like the the woes I hear from friends of mine who, you know, got those great pandemic rental rates, and now their leases are up for renewal and it’s bad out there. It’s pretty bad.

Amy Scott: I know, it’ll be double or triple what they were getting. It’s crazy. So how about you, what you got?

Kimberly Adams: This is something that that came out a few days ago, and I’ve just kind of been sitting with it and thinking about it. So there was a study that came out and let me just make sure I get the publication, right. It was published in social science and medicine. And it was a study done by a professor and a team out of the I want to say the univ –Yeah, the director, sorry, at the University of Georgia. And the woman Allison Skinner-Dorkenoo, I believe is her name. She’s the director of the Georgia Attitude Bias and Behavior Acquisition Lab. So she and several of her colleagues have a paper out looking at the racial disparities in COVID. And what happened when people found out about it. So basically, they looked at what was specifically, what happened when white people found out about these racial disparities, and it suggests that, teaching – and I’m reading directly from one of her tweets, because she did a Twitter thread about this. She said, “The data suggests publicizing COVID-19 racial disparities may decrease support for policies and practices that could curb the pandemic, creating a vicious cycle, where raising awareness of systemic racial health disparities results in public responses that actually exacerbate them.” Because…

Amy Scott: No way.

Kimberly Adams: Yeah, they found that when they gave white people more information about the racial disparities in COVID-19, it basically decreased their fear of COVID-19. And ultimately decrease their support for safety precautions like masking. And I’ve been sitting with this for a couple of days now, because throughout the pandemic, a lot of us in the media talked about these racial disparities. And I know when I was talking about it, and I was talking about it with the context of, you know, it’s the most vulnerable in our society and the most disadvantaged folks who are more likely to die from this and one would expect that to elicit an empathetic response. And this data is is disturbingly pointing in a different direction. I am looking forward to seeing more research on this. Seeing the the larger response to this paper. But one of the other tweets she has in her thread is that she said, “an optimistic part of this work is that white U.S.ians who were most knowledgeable about systemic inequalities, were the most fearful of COVID-19, and most supportive of safety precautions, which suggests that teaching people about the system’s structures and history that contribute to racial health disparities, and highlighting the injustices may be a necessary component of discussions about disparities, if we do not want these discussions to backfire.” It’s such a fascinating look at how we process information and how that shows up in different groups. It’s it’s difficult to hear, but important.

Amy Scott: Yeah. And the capacity to distance oneself from people we perceive as other, right. “Well, that’s far away. I don’t have to worry about it.” But yeah, I think we have seen in the last couple of years that what we might have expected to be an empathetic response is, you know, that’s asking a lot of of our society sometimes, which is too bad.

Kimberly Adams: Yeah.

Amy Scott: I’m glad you brought this really interesting. And I would like to see follow up research about it. Because it seems like the solution is not to not talk about it. Right. I mean, yeah, we got to talk about these inequities. It’s key to fixing this and to preventing the next one. Yeah.

Kimberly Adams: And I mean, I guess it’s a version of very early in the pandemic, where, you know, they said, “Oh, well, you know, it’s only the older people and the immunocompromised, who are vulnerable.” And a big chunk of society was like, “Oh, well, then we’re fine. We don’t have to worry about it.” And the entire, like, disability community was like, “so you just want us all to die?”

Amy Scott: And that continues. That absolutely continues. Yeah.

Kimberly Adams: Yeah. Yeah.

Amy Scott: All right. Well, I think that’s it for the news fix for now. This is fun. I’ve never done this one before. Let’s do the mailbag.

Amy: Godfrey from San Francisco Desi from Charleston, South Carolina and I have a follow up question. It has me thinking and feeling a lot of things.

Amy Scott: I love that jaunty little sting.

Kimberly Adams: It’s fun, isn’t it? First up is a voice message we got about last week’s deep dive on long COVID.

Matt: Hello, my name is Matt. I’m from Somerset, Pennsylvania. I am a pastor. And actually one of my coworkers ended up getting COVID and it turned into long COVID And she’s been dealing with this. And I’m in a peculiar position. You know, there’s some people that are just so done with this that to even bring it up as a leader and try to engage in it in a thoughtful, ethical, kind way, is pretty daunting.

Kimberly Adams: And I think that’s, I think that’s the difficulty that a lot of leaders and individuals and managers are really having to deal with now and going to have to deal with about, you know, how do we accommodate the folks who are dealing with the consequences of this disease in the long term, especially when we know so little about the long term consequences? And I wish I had something to say I mean, I’m sorry, Matt, it sucks. And I imagine that a lot of people can empathize. Empathy is the theme of the show today with what you’re going through and I hope that your congregation and your colleagues have a have a little kindness and sensitivity there.

Amy Scott: Yeah, but you know, go Matt for wrestling with this because I think your congregation will be better off for it. And a few of you wrote to us or really to Kimberly to let us know about the Washington Nationals new team uniforms, including Eric from Tucson who says their new uniforms will be worn on April 9, the entire uniform including the hat and socks features a gorgeous cherry blossom theme. Kimberly you gotta love this.

Kimberly Adams: I do. So many people tweeted me about – tweeted at me and messaged me on Discord about these uniforms, and they look great, and I love it and I think I’m gonna get one of the hats. They’re very cute. I’m not usually a sports gear person. But as everyone knows, at this point, I’m definitely a cherry blossom person. And as you know Amy very well because you came to my cherry blossom party. Thank you.

Amy Scott: I did, it was lovely. I gotta say they’re cute to the jersey is like gray with a little sprig of pink cherry blossoms. I love you know, flowers in general, but I’m also kind of into the idea that that a men’s sports team has flowers on their jerseys because flowers are for everyone.

Kimberly Adams: Yes, yes and the Washington Wizards, we should also note also unveiled their cherry blossom themed uniforms so yay! It’s all cherry blossoms.

Amy Scott: Yes! Go D.C.

Kimberly Adams: The last of them are just disappearing here in Washington.

Amy Scott: Well come out to Baltimore because it’s just beginning.

Kimberly Adams: Oh, cool.

Amy Scott: Yeah, just just far enough north that we have a slightly later spring it’s getting very lovely here. Alright, before we go we’re gonna leave you with this week’s answer to the Make Me Smart question which is what is something you thought you knew but later found out you were wrong about

Amy: This is Amy from Colorado Springs, Colorado, birthplace of Lon Chaney, the silent horror film star and former home to Nikola Tesla. I wanted to give you a slightly twisted answer to the make me smart question. Something I didn’t know but I’m glad I don’t: The Baby Shark Song. Not getting that one stuck in my head Kimberly. Have a great day.

Amy Scott: First of all. Amy from Colorado Springs. How cool is that? I am also an Amy from Colorado Springs. Well, Lon Chaney I didn’t know he was born in the springs but you know who else I went to high or – no, I didn’t go to high school with her. Elvira, Mistress of the Dark went to my high school. So there’s another horror star so yeah, that’s pretty cool. So Kimberly, let’s not ruin it for her. We’re not going to sing it. Right?

Kimberly Adams: No, I’d never. I’d never do that.

Amy Scott: Alright, keep us keep sending us your answers via voice memo to our email at makemesmart@marketplace.org. Or you can leave us a message at 508-827-6278 also known as 508-UB-SMART.

Kimberly Adams: Make Me Smart is directed and produced by Marissa Cabrera. Our team also includes producer Marque. Greene and Ellen Rolfes, who writes our newsletter. Our intern is Tiffany Bui.

Amy Scott: Today’s program was engineered by Juan Carlos Torrado with mixing by Brian Allison. Ben Tolliday and Daniel Ramirez composed our theme music. Senior producer is Bridget Bodnar. Donna Tam is the director of on demand and marketplaces vice president and general manager is Neal Scarbrough.

Kimberly Adams: I really do have to get the hat. There’s cherry blossom t-shirts as well. But the socks might be cool. I do love a good themed sock.

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