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A history of fear-based governance, from the war on crime to the war on terror

ASK THIS | May 24, 2010

Politicians and the media alike have experienced great success by stoking fear, writes law professor Jonathan Simon. But policies based on fear -- whether it's fear of crime or fear of terrorism -- often lead to citizens and taxpayers giving up too much, and getting too little in return.

By Jonathan Simon
In 1968, LBJ’s Attorney General, Ramsey Clark, was struggling to implement a bold set of federal initiatives directed at combating a rise in violent crime, in a way that would also advance the administration’s anti-poverty and civil rights objectives. His enemies, however, especially those inside the Nixon campaign, demonized him as the poster child for an administration unwilling or unable to acknowledge the harsh reality that evildoers stalked Americans. (See Rick Perlstein’s Nixonland: The Rise of a President, the Fracturing of America.) Clark, they said, was too willing to temper the power of the police and the effectiveness of prison with due process rights.
Now, of course, it’s all happening again, except with President Obama’s Attorney General, Eric Holder, as he struggles to bring Al Qaeda terrorism suspects to trial and to close the now infamous detention and torture facility at Guantanamo Bay, Cuba. Holder’s critics charge that he is failing to appreciate the seriousness of the violent threat to Americans and compromising security by invoking those self-same due process rights. (See After 9/11 Trial Plan, Holder Hones Political Ear, New York Times, February 14, 2010; The latest twist has been Holder’s proposal to strip terror subjects of their Miranda rights, in an apparent effort to get ahead of the “tough on crime” critique of Obama’s Justice Department.)
Clark was accused of not waging a real war on crime. Holder is accused of taking a law enforcement approach to a military conflict. In both cases, the basic claim was that legal values had to back down in favor of security against violence.
Seeing these two wars -- the war on crime, and the war on terror -- side by side highlights the continuity of fear-based governance over the last four decades. (See my book, Governing through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear.) In both frameworks, the exposure of citizens to alarming threats of violence (growing murder rates in the 1960s in one case; the episodic but potentially mass murders of Al Qaeda in the other) has been used to justify fundamental changes in American law (preventive detention in the 1970s; “enhanced interrogation” in the 2000s) -- and to reshape American political institutions.
The war on crime gave us a new model of executive-power expansion in the name of personal security for citizens; a new bond between lawmakers and crime victims; and a permanent campaign against courts and lawyers depicting them as weak links in the fence protecting us from the dangerous predators stalking Americans.
All of these elements were in place on September 10, 2001, along with a finely tuned media sensitivity to violence and fear. If the Bush war on terror that emerged looked like Nixon’s war on crime on steroids, it was far from an accident.
But the legacy of the war on crime provides an object lesson in the downside of the politics of fear.
The 1960s and early 1970s, still so influential for most American political thinking, witnessed an alarming rise in violent crime in big cities along with spectacular eruptions of public violence including assassinations and riots (Watts 1965, Detroit 1967). In media-saturated California those disturbing trends were further amplified by a seemingly endless series of nightmarish serial killers (from the Manson Family to the Zodiac).
Mobilized by the powerful law-and-order rhetoric of national politicians, and incentivized by generous federal support for prison expansion, states committed themselves to gigantic building programs in the 1980s which led to an unprecedented rise in state prison populations during the next quarter century -- despite drops in crime from 1993 on. (For a careful state by state comparison, see 1 in 31 US Adults are Behind Bars, on Parole or Probation, from the Pew Center on the States.) The economic boom years helped cover up the costs of this for the states, but today numerous states are crippled by their escalating prison costs.
For states like California, which increased its rate of imprisonment more than six-fold between 1975 and 2005, its long term prisoners represent much the same kind of unsustainable financial burden that GM’s pension and health insurance commitments to its retirees did.( For a primer on California see Joan Petersilia’s Understanding California Corrections.) In both cases. bankruptcy looms if no action is taken. But in California’s case even an action hero Governor, Arnold Schwarzenegger, who came into office declaring the prison system broken, has been unable to mobilize consensus for a real change in direction. Only under pressure from a federal court order has the state begun to undertake some steps to reduce prison populations, and the state continues to appeal even these steps.
Politicians who once benefited by playing to public fears of crime now find themselves trapped in a logic where any reduction in prisons appears to betray public interests.
Crime fear has also led to an inflated need for personal security. We see it written across the landscape of gated communities and heavily monitored routines that make up middle class life in America. We have been led by our fear to give up on freedom.
For decades now, wars on crime and now terror have built up a culture of fear and control that stymies our political institutions and entangles Americans in burdensome routines (whether driving our kids to school or standing in airport security lines).
There are good reasons to believe this culture of fear is no longer sustainable. The growing awareness of how vulnerable Americans are to infrastructure-based disasters -- from the catastrophe of New Orleans after Katrina, to the more modest misery of annual power outages from winter storms on the East Coast -- highlights the need for major state and federal investments in new infrastructure. Those new investments will simply not be possible with the demands that our massive prison systems place on state budgets. (See Christine Scott Hayward’s The Fiscal Crisis in Corrections: Rethinking Policies and Practices.) With crime rates around America as low as at any time since the 1960s, we are overdue to update the nightmares of the 1970s to our new challenges. Public safety means more than just crime; and prisons can provide little or no help against floods, fires, or even public misconduct (like violent looting) during disasters (note that Louisiana has the second highest incarceration rate in the country).
We cannot expect politicians to end the wars on crime and terror without an engaged public demanding action against new risks. But for that to happen, the media will have to change its ways first. The war on crime made for great reporting opportunities and saw fantastic growth in local news (“if it bleeds , it leads”) and cable-TV victim advocacy (e.g. Nancy Grace). And as we saw in Katrina, the media is all too ready to go with a crime story, rather than the stay focused on the infrastructure disasters that are more complicated to visualize or explain.
Some questions the press should ask on mass imprisonment:
Q: America has more than two million people in custody and nearly 1 in 31 American adults are under some form of correctional custody. How much more custody and control will be required before Americans feel safe? Or does mass incarceration not actually increase security?
Q: How many persons currently serving state prison sentences could be released to serve the remainder of their sentences under supervision in the community without posing a significant risk to person or property? How much money is currently being spent incarcerating those prisoners?
Q: According to economist Justin McCrary, public spending on prisons has grown more than 400 percent since 1970, while public spending on police has risen only about 20 percent. (See Justin McCrary’s "Dynamic Perspectives on Crime", in Bruce L. Benson and Paul R. Zimmerman’s The Handbook of the Economics of Crime.)What accounts for this disparity? Could police help prevent crime without increasing incarceration?
And on the war on terror:
Q: What rational basis do Congressional opponents of closing Guantanamo have for the belief that moving detainees to mainland US maximum security prisons would endanger Americans?
Q: What stops Al Qaeda from retaliating against New York, or even Wichita, for a death sentence handed down against Khalid Sheik Mohammed at a military tribunal in Guantanamo?
Q: How much security would a KSM trial in southern Manhattan require compared to say, the trial of the first world trade center bombers?


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