Kidnapping Reconsidered: Courts' Merger Tests Do Not Remedy the Inequities Which Developed from Kidnapping's Sensationalized and Racialized History

Abstract

Kidnapping has a troubled history in the law. It was instituted, perpetuated, and expanded almost exclusively after publicized and sensationalized cases where the children of wealthy whites were taken. In the same periods, courts and legislatures largely ignored the cries of minorities, particularly slaves or free blacks, that they too had been kidnapped. In the public hysteria over the relatively few kidnappings of white children, legislatures expanded the offense’s definition to the point that it lost all meaning and became unconstitutionally vague. To remedy this problem, courts created kidnapping merger tests. But these tests have had little consistency or coherency, and troublingly, they have done little to solve the issues of discriminatory enforcement that have plagued kidnapping since its inception. Legislatures should reconsider kidnapping and narrow its definition in order to prevent the arbitrary use of police or prosecutorial discretion. If legislatures refuse to act, then courts should strike down kidnapping statutes as vague and as violations of double jeopardy and equal protection, as well as a cruel and unusual punishment.