This morning I read several articles in the New York Times about the criminal justice system. In one, Nicholas Kristof writes about a man sentenced to a long prison term for possessing seven shotgun shells. A Frank Bruni column describes a woman sentenced for assisted suicide for handing a terminally ill man a bottle of opiate painkiller. He survived the OD but died later in the hospital. And there was another editorial about California’s prison crisis.
All of these are about mandatory minimum sentences, their accidental injustices (a topic I might revisit if I feel like it), and the unintended consequences of these sentences. But they got me pondering how we got to this situation. It’s far easier to be “tough on crime” as a politician than to introduce legislation granting leniency to people who have broken laws. Arguably, both the Kristof and Bruni cases are situations where the prosecutors might have exercised their discretion to charge a lesser offense or not charge at all. (I wonder what the back story is. There’s always another version) but, once the prosecutors brought and proved a charge, the judges were not allowed to give a slap-on-the-wrist sentence.
This ratchet effect has also showed up in “homeland security” efforts. I can’t wait until some terrorist shoves a stick of dynamite where the sun don’t shine. Then will all the air passengers be asked to bend over for the TSA? It’s too politically risky to say, “this is stupid, try to find something less intrusive but more effective.” Because as soon as someone exploits a loop-hole, and actually does manage to hijack a plane with nothing more than a nail clipper and a large tube of toothpaste, the “I told you so” blame-game will roast anyone sensible.
A third example comes in the form of Obama-loathing. Any position the President chooses is automatically suspect. Liberals like me despaired at Obama’s doomed attempts to compromise, recognizing the ratchet effect for what it was: if that Kenyan Muslim atheist socialist nazi agrees to it, it has to be wrong somehow.
So where does it come from? I suspect a few factors. Confirmation bias is a big one, as well as simple fear and a desire to out-do the competing politicians. “You dislike Obama? Well I hate him!” This attitude of ever-more dogmatic responses works well with primary voters, and in a gerrymandered polity there’s little downside. (Not so for less gerrymandered races, viz. Christine O’Donnell and Sharron Angle.)
Only when the effects of ratcheting become extreme, as in the “send ’em all to prison” ratchet colliding with the “no taxes” ratchet, is there any possibility of a return to moderation. If you want to see a right-winger’s head explode, ask him if he’d be willing to raise taxes to pay for more prisons.
How to avoid it? Well, suspicion of confirmation bias is big. Respectful probing and consideration of opposing positions is another. It’s been said that “A liberal is somebody who is so open-minded that he won’t take his own side in an argument.” On the other hand, “Minds are like parachutes. They only function when open.”
Maybe the rightward ratcheting of American politics is because only one side engages in good-faith debate?