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Discussion post: America has undergone a tightening of security and argumentatively a lessoning of civil liberties due to the terrorists attacks of 9/11 and other terrorist activities. Is there a balancing point between our civil liberties and national security? How have these security interests affected the criminal procedural rights of suspected or known terrorists? What does this tell you about how public policy can dictate the mechanics of criminal law?

‘Tough on Crime’ Doesn’t Pay
rime is an easy target for outrage; it has no defenders.
But all too often, the easiest way to signal opposition
to crime is to call for ever harsher and less effective
measures against criminals. Especially in a campaign season,
politicians are only too ready to succumb to this temptation.
The rhetorical exploitation of fear for political gain, often
against better empirical evidence, is currently blocking action
on criminal justice reform despite significant bipartisan consensus that it is necessary, possible and critically important.
Encouraging the belief that the primary way for a
society to combat crime is to punish criminals more severely
leads to bad policy and sometimes to even more crime. It
abandons our collective moral responsibility on many levels,
both for the criminals it fails to rehabilitate and reconcile
with society and for the communities and families left
scarred by their absence. For Christians, treating criminals
principally as enemies fails to heed the words of the one who
said, “I was in prison and you visited me.”
“Tough on crime” rhetoric became prominent in the
1960s, exploited by politicians and cheered by voters, often
with thinly veiled racial or other social slurs. Along with
the war on drugs, it resulted in mandatory sentencing, zero
tolerance and “three strikes” policies that swelled the prison
population. At the same time court systems were swamped
with cases, increasing the incentive for plea bargains and with
that the disproportionate power of prosecutors. Budgets
were exhausted by the cost of incarceration, often leading
to cuts in programs for the rehabilitation and education of
Through the years, saner voices have pointed out the
inconsistencies, the inequities and the raw injustice of some
of these policies. A number of states are presently working
to reform their criminal justice systems. In a blog post for
America last year (9/23/15), Robert David Sullivan noted
that in 2014 “at least 30 states enacted reforms to reduce
sentences or provide alternatives to prison. These changes
are not entirely altruistic. Taxpayers stand to save millions
of dollars when fewer people become wards of the state and
when fewer ex-convicts engage in behavior that sends them
back to prison.”
Despite the moral and budgetary logic behind
criminal justice reform, politicians eager to demonstrate
their seriousness about crime are prone to overreaction,
often exaggerating tragic incidents and localized patterns to
convince voters that widespread fear is justified. Donald J.
Trump, for example, has stated: “You can go to war zones in
countries that we are fighting
and it is safer than living in
some of our inner cities that
are run by the Democrats….
We’ll get rid of crime. You’ll
be able to walk down the
street without getting shot.
Now you walk down the street, you get shot.” While it is true
that cities like Baltimore and Chicago have real problems
with gun violence and that preliminary data for 2015 show a
one-year increase in the violent crime rate, the overall trend
is that the United States has become considerably safer over
time. Data for 2014, the last year for which the Federal
Bureau of Investigation has complete statistics, showed a
6.9 percent decrease in violent crime since 2010 and a 16.2
percent decrease since 2005.
The fact that rhetoric encouraging fear works so well
is all the more reason that it must be resisted and called out.
Even when crime is on the upswing—as it is in some cities—
the conclusion that more aggressive law enforcement is the
best or only answer is unwarranted. Focusing on getting
illegal guns off the street and reducing their availability
would probably do more to prevent violence, at a smaller
financial and moral cost, than increasing prosecution and
While there are some hopeful signs of movement
toward criminal justice reform, like the Department of Justice
phasing out the use of private prisons and voters beginning
to withhold support from overly aggressive prosecutors, the
larger trend in Washington is not as hopeful. The Sentencing
and Corrections Reform Act, which enjoyed wide support
from both Democrats and Republicans, including House
Speaker Paul Ryan, died in the Senate in May. Senator Tom
Cotton, who helped kill the bill, said that while victims of
crime deserved empathy, “As for the claim that we should
have more empathy for criminals, I won’t even try to conceal
my contempt for the idea.” He did, however, admit that
encouraging redemption and rehabilitation of criminals
could be in “our interest as a society.”
While Senator Cotton is right that rehabilitation is
in society’s best interest, he is badly wrong to imagine that
it can be achieved without more empathy for criminals or
that such empathy undermines justice instead of tempering
it with mercy. Political rhetoric that rejects attempts to
improve our criminal justice system in order to maintain the
false security of appearing “tough on crime” betrays us all.
September 19, 2016 America
© America Press Inc. 2016. All rights reserved. www.americamagazine.org

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