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Emotion-Based Criminal Justice Policy

October 27, 2014 | Marc Mauer, Executive Director, The Sentencing Project

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I remember well the drama behind the passage of the 1994 federal crime bill. At the time, I was engaged with many others in trying to shift the focus of the bill away from its heavy emphasis on law enforcement and incarceration and toward a more balanced approach to public safety. Ultimately, we were not successful. What was particularly striking in the final bill was the huge disconnect between evidence and policy. In many ways, the triumph of emotion over evidence in the bill has been a recurring theme in the policies, leading to mass incarceration over several decades.

I remember well the drama behind the passage of the 1994 federal crime bill. At the time, I was engaged with many others in trying to shift the focus of the bill away from its heavy emphasis on law enforcement and incarceration and toward a more balanced approach to public safety. Ultimately, we were not successful. What was particularly striking in the final bill was the huge disconnect between evidence and policy. In many ways, the triumph of emotion over evidence in the bill has been a recurring theme in the policies, leading to mass incarceration over several decades.

As the crime bill moved through Congress, one event in particular was quite illustrative of this problem for me. I was asked to testify before the House Judiciary Committee as it considered one of the more provocative elements of the crime bill: the proposal for a federal “three strikes and you’re out” policy. The lineup of witnesses was diverse, ranging from Rev. Jesse Jackson to victims of crime to researchers and practitioners.

The day began with a packed room full of journalists and TV cameras to hear testimony from a panel of six individuals whose family members had been victimized by serious violence. Their stories were all quite tragic, including that of Marc Klaas, the father of Patty Klaas, the California girl who was abducted from her home and murdered in a case that helped spark the movement for the California “three strikes” policy.

As I listened to the victims’ testimonies, I began to realize how disconnected it felt from the legislation at hand. First, all six victims were white—hardly representative of the diversity of the crime problem in the country, and somewhat ironic given many legislators’ purported concern about crime in minority communities.

Second, all of the crimes had been prosecuted under state, not federal, law and so would have been unaffected by the provisions of the crime bill. This was not terribly surprising, since the vast majority—more than 90%—of violent crimes are handled in state courts. But it was still disconcerting that no one on the committee saw the need to question whether the proposed bill would have any impact on such crimes.

But the TV cameras rolled and the victim imagery was picked up widely on the evening news. By the time the committee heard from the invited researchers and practitioners, the room was only half full and attention was waning. The testimony on incapacitation, deterrence, and related issues was both relevant and illuminating, but had little effect on the ultimate outcome of the measure.

While the “three strikes” policy was only one element of a mammoth spending bill, in many ways its political trajectory typified the role of emotion over evidence in developing policy. Today, we live with the consequence of this mode of policy making: an expanded prison system, due in part to the $9 billion in spending on prison construction and incentives to adopt “truth in sentencing” policies contained in the legislation. In recent years, we have seen a shift in the political climate toward a more rational look at research on public safety. Hopefully, we are beginning to learn the lessons of the 1994 experience. 

Marc Mauer is executive director of The Sentencing Project and the author of Race to Incarcerate.