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Misinformation and the Carceral State

The problem of misinformation surrounding criminal justice issues did not begin with Nixon, nor did it die with him. There was sensationalism, politically motivated propaganda, and anti­immigrant hate speech in the media coverage and public policy responses surrounding the chaos caused by Prohibition. More recently, the spike in violent crime in the first half of 2020 has been linked to early prison releases, including those in the wake of Covid-19, even though there has been no research to show that one phenomenon caused the other.

It is easy to understand how criminal justice policy making can be driven by fear or an emotional response to a particularly sensational event. However, such policy missteps are not inevitable, as demonstrated in a November 2020 policy study published by Emily Mooney and Casey Witte at the nonprofit R Street Institute. Their study not only outlines how misinformation warps decision-making and gives clear examples from recent history, it also offers a path forward to help mitigate the effects of misinformation in an era of fake news and alternative facts.

Misinformation and
Decision Making

The misleading and sensationalized statements made by politicians and spread through the media are often intended to create an atmosphere of fear among the public. Aside from the general reservations the average person might have about such intentions, there are also cognitive consequences to the presence of fear in public discourse. Fear response in humans begins in the amygdala, an almond-shaped organ at the base of the brain. Once a fear response is activated, two simultaneous processes begin. The first is the release of hormones like adrenaline, accompanied by an increase in breathing and heart rate. At the same time, blood flow is diverted from the cerebral cortex, an area of the brain that is critical to reasoning, judgment, and advanced cognitive function. In other words, fear makes it harder to think our way to a good decision and favors a quick, intuitive or emotional response. The survival value of this process is unmistakable from an evolutionary perspective, as are the problems the process generates in a situation that requires nuanced thinking.

To make matters worse, decisions made while in the grip of a fear response leave an imprint on the brain, creating a sort of neural shortcut that makes it more likely we will make the same decision when confronted with similar stimuli. This process, called heuristics, is further reinforced each time it is repeated, making a re-evaluation of a particular response more difficult the more frequently it is repeated.

These psychological processes compound, and are compounded by, the way criminal justice issues are treated in the media. Thus when media coverage of crime increases, the public perception of increasing crime grows with it, even when in reality crime rates are dropping. This explains how in 2019 a Gallup poll found that two-thirds of Americans believed crime rates were increasing, despite the fact that rates of violent and non-violent crime had reached historic lows in that year following a decades-long decline.

It is also impossible to ignore race as a factor in this process. The well-documented impact of the racially charged “Willie Horton” political ad during the 1988 presidential race has long been Exhibit A in the case to prove that fear can make people forget their otherwise-enlightened attitudes about race, and recent depictions of the apocalyptic danger of approaching migrant caravans present equally potent proof. It is undeniable that people of color have disproportionately been at the center of fear-based decisions relating to criminal justice, and their communities have borne the consequences of those decisions.

Misinformation and Criminal Justice Mythology

Fear-inducing rhetoric, seeded with misinformation, has often shifted focus away from real solutions to social problems and even undermined genuine efforts to solve them.

Instead, the rhetoric creates a pattern of false impressions and erroneous conclusions about a particular issue. Several examples of how the criminal justice myths were created are outlined below, as is the real data that refute them.

The first example is the creation of the “juvenile super predator” myth by John Dilulio and William Bennett. In 1995, in editorials and an accompanying book, these men described a bleak American future dominated by “elementary school youngsters who pack guns instead of lunches.” Despite the fact that their predictions were based on almost no data, the term “super predator” made its way into regular media circulation and from there into the public consciousness. It did not matter that academic research conclusively disproved the idea of super predators, nor did it matter that crime rates were already falling by 1995 and would continue to fall over the coming decades. What did matter was the intense media coverage of isolated cases involving horrific violence by juveniles and the politicization of the resulting public outcry to pass laws making it easier than ever before to charge minors as adults. Most of these laws remain on the books, invulnerable to any factual challenge mounted against their fear-based rationale.

Perception of violent crime itself is also an example of how fear can create an ideological matrix that is impervious to fact. Despite the fact that many states have begun to modify “tough on crime” attitudes and policies, these modifications nearly always exclude approaches to people convicted of violent crime. The R Street study found that fear-mongering around violent offenses overstates the potential for recidivism while ignoring the statistically proven reality that violent criminal behavior observably follows the same patterns as non-violent criminal behavior. These observations show that individuals who have been incarcerated for violent crimes have lower recidivism rates than those incarcerated for non-violent offenses. Additionally, violent behavior is proven to decrease dramatically after age 30.

Despite these realities, the fear generated by instances of a violent criminal committing a second violent crime has led to extraordinarily long sentences for many first-time offenders and is the key element driving the growth of geriatric prisoners.

These elderly prisoners are often refused parole, even though their recidivism rate is below three percent and their incarceration cost is exponentially higher than that of the average prisoner.

Another persistent myth inspired by misinformation involves the perception that crack cocaine is more addictive and destructive than powdered cocaine. When crack exploded across the American popular consciousness in the mid-1980s, it was associated with Black communities, street gangs, and violent crime. Powdered cocaine, on the other hand, was seen as a recreational vice among Whites and therefore perceived as less threatening. Unfounded claims about the hyper-addictive nature of crack were paired with a media fascination with cocaine-related gang conflicts to create a near-hysterical fear of crack’s impact.

The resulting wave of mass incarceration and police militarization has had tremendous impact in communities of color. Disproportionate sentencing was mandated for crack possession in the federal system, and despite its outsized effect on Blacks, it has remained in place for over 30 years. The staggering consequences of the policies inspired by the fear of crack cocaine have mostly been accepted despite the fact that there is no data to prove that crack is more addictive than powder, nor is there any clear evidence that the gang violence associated with cocaine is more driven by crack than powder. Instead, public officials and their constituents have been content to allow the fear conjured up by misinformation and media sensationalism to drive them through a cognitively impaired decision-making process. These decisions, like those in the other examples noted above, have proven to be stubbornly resistant to facts and logic, and their consequences are therefore still reverberating across society today.

Countering Misinformation

Understanding the role on misinformation and fear in shaping poor public policy is an important step, but like so many social ills, this problem will not solve itself. The first step in countering misinformation is ensuring the availability of accurate information. The collection of data at every level of the criminal justice system is critical to creating a decision-making process that favors fact over fear. The problem is that regular, comprehensive, and transparent data collection and publication are a rarity across the criminal justice system. This must be addressed at the state and local level, coordinated with federal efforts, and made available to the public.

Even when data are available, there is far too little funding for research and evaluation. Think tanks and universities are equipped to meet the need, but without initiative at the legislative level, policy decisions will continue to lack the high quality, rigorous evaluations that can ferret out flaws and offer better alternatives.

Once data have been collected and analyzed, they must be effectively presented to the public. Most of the platforms that exert influence on public opinion have no interest in crafting positive change.

To meet the effects of sensationalism and entertainment, public information campaigns must be clear and direct presentations of truth. The effect of such programs can vary widely, but if properly done, they provide the surest path to combating misinformation.

Subsequent steps to countering misinformation fall beyond the public sector to land squarely in the lap of the public itself. While the physiological effects of the fear response are difficult to directly counter, citizens can help themselves make better decisions in relation to their support of criminal justice policy by doing three things.

The first is simply paying closer attention to what is being said and who is saying it. It is easier to overcome the effects of fear-mongering when you realize the speaker trying to make you afraid of phasing out cash bail works for an association of bail bondsmen, just as it is easier to question the veracity of a sensational media report when you remember that news outlets do not sell truth, they sell advertising. Learning to recognize ulterior motives and see the truth through the smokescreen neutralizes the worst effects of misinformation.

Secondly, the tendency to focus on sensational events rather than the larger trend obscures any informative view of social reality. Instead of concentrating on a single event, look at the bigger picture when making decisions.

And lastly, recognizing the value of a change in perspective at the social level has to take account of the value of that change at the individual level, specifically in policymakers.

If elected officials are continually criticized for changing their minds when confronted with new data, they will simply stop doing so.

American society is at a critical juncture in the evolution of attitudes toward social inequality, racism, and criminal justice. To come through this difficult time and overcome the fear associated with change and uncertainty, it is essential to get the facts right and make decisions based on those facts. 


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