No one wants to compromise public safety. A government’s most fundamental duty, after all, is to protect its citizens. Quite appropriately, then, Senator Jim Webb and other legislative leaders chose a law enforcement official to lead off the first hearing on Webb’s proposal to create a national criminal justice study commission charged tasked with recommending comprehensive, system-wide reforms.
Chief William Bratton of the Los Angeles Police Department told the Senate Judiciary Committee that there would be more, not less, public safety with a proper reform of the justice system. “It is not enough,” he said, “to continue to churn people through a broken and ailing system with no forethought and no long-term solution.” America has been doing that for three decades, giving a country with five percent of the world’s population a bloated prison system with 25 percent of the world’s prisoners.
How did it happen? In his chapter on “The Politics of Fear” in his 2007 book The Assault on Reason, Al Gore asks why we have become so vulnerable to appeals to fear. Though he does not deal with domestic criminal justice issues directly, his reasoning applies equally as well to them as to the Bush Administration’s “war on terror.” Gore argues that our democracy’s immune system — its ability to neutralize falsehood by exercising reason — has become weak. A free press is a crucial part of this system, but it has failed just as miserably in questioning America’s incarceration policies as it did in questioning the war in Iraq.
The only way to move forward is to regain a better balance between fear and reason. Let's start by admitting that the capacidty for fear is hardwired in the brain, with reason centered in the parts of the brain that evolved more recently. Accordingly, there will always be a strong emotional element in society's response to crime. This is not only due to the “fear factor," a tabloid tendency to focus on serial killers and notorious incidents like the Texas cop who tasered a great-grandmother during a traffic stop. It's because when people are harmed by crime, or there is a threat of harm, it naturally elicits an emotional response.
To reform the criminal justice system properly, we need to stop relying so h eavily on heuristic shortcuts like “three strikes and you’re out” and reclaim the capacity for both empathy and rational problem solving. Those qualities, no less than fear, are fundamental human capacities. Fascinating brain research continues to emerge, for example, about how "mirror neurons" contribute to feelings of empathy.
In July 2007, Homeland Security Secretary Michael Cherthoff claimed he had a “gut feeling” that there might soon be another terrorist attack on American soil. Well, he was wrong, and his statement played into the hands of the terrorists by making many Americans more fearful than was really necessary. As a friend put it to me yesterday over lunch, you can’t keep the threat level on orange for eight years; it just wears you out, and you become the boys who cried wolf.
Today, in national criminal justice policy, the Webb proposal offers a chance to look critically at what the threats really are. They are indeed real, but an over-reliance on prison to produce public safety has arguably made us − as a book on Bush’s response to 9/11 was titled − “less safe, less free.”