In a Sept/Oct Newsletter contribution, I suggested that our brains’ reflexive amygdala-powered fear/anger responses to the prevailing views of criminals explained the persistence of America’s increasingly punitive “tough-on-crime” policies. Even with declining national crime rates in the U.S., offenders continue to face legal and social barriers to community reintegration, despite the fact that they had “done the time,” and America grapples with an enduring sociopolitical resistance to proposed criminal justice and prison reform interpreted to reflect a “soft on crime” attitude. In this article, I continue to examine the implications of neuroscience and brain functioning in influencing reform outcomes.
As students of America’s criminal justice history know, emotional public and political reactions have persistently played an important role in shaping America’s solutions to crime. Thus it was no surprise that following Presidents Nixon’s and Johnson’s declaration of war on crimes and illicit drug use fostered by the social and racial unrest at the time—augmented by sociologist Robert Martinson’s widely publicized “nothing works” to rehabilitate offenders doctrine (Martinson, 1974)—that from the late 1960s through the mid-2000s, criminals were often described as having no regard for human life and seen as threatening and violent individuals (Burton, et al, 2020, p. 713), fully deserving of harsh treatment and prison living conditions in the interests of protecting society from crimes (e.g., Reitz, 2018, p. 27). As Professor Jonathon Simon noted in his book Mass incarceration on trial: A remarkable court decision and the future of prisons in America, “The politics of fear that produced mass incarceration relied on the image of the prisoner as an unchanging lethal threat” (Simon, 2014, p. 131); a threat that was best managed by “total incapacitation.”
Despite the continuing decline of America’s crime rates from the mid-1990s, popular sayings like “once a criminal, always a criminal,” “if they do the crime they can do the time,” and in defense of increasingly harsh prison conditions, “they ain’t got nothin’ comin” persisted. These popular opinions reflected the sociopolitical attitudes about criminals and fears of crime that facilitated and supported the emergence and persistence of America’s era of increasingly punitive sentencing, harsh prison conditions, mass incarceration, and the for-profit Prison Industrial Complex.
Today, America’s prevailing sociopolitical view reflected by our criminal justice system is still that criminal behavior is a voluntary violation of social laws and behavioral norms that threaten individual and public safety and government imposed social order. Consequently, such behaviors need to be firmly dealt with by various forms of punishment that reduce or eliminate such threats and deter future threats.
Nonetheless, appeals for criminal justice and prison reform have re-emerged. In the 2020 presidential campaign debates, some democratic candidates (e.g., Senators Sanders, Warren, Klobichar, Booker, and Vice-President Biden) individually alleged that America’s criminal justice system is “broken” and in serious need of reform, including reforming how our prisons are managed. Reform proposals included:
- Reducing harsh prison sentences;
- Changing minimum sentencing laws;
- Changing drug sentencing policies, including decriminalizing certain substances (e.g., marijuana);
- Prioritizing offender rehabilitation;
- Banning private prisons; and
- Restoring voting rights for previous offenders (Criminal Justice Programs, 10/22/20).
Information from neuroscience may help readers understand a neurological basis for both the persistence of punishment despite critics’ notice of social harm and declining crime rates, the sociopolitical challenges to reforms, and how they might be managed. As neuroscientist Richard Davidson stated succinctly in his book The Emotional life of your brain: “Anything (italics added) having to do with human behavior, feelings, and ways of thinking arises from the brain.” (Davidson, 2012, p. xii).
Thinking Fast and Slow: System 1 and System 2
Although there are a number of sources that describe brain functioning in daily life available to the public [e.g., Emotional Intelligence, (Goleman, 1995); Synaptic Self (LeDoux, 2003); The Biology of belief (Lipton, 2005), Touching a nerve, (Churchland, 2013), and Behave (Sapolsky, 2017)], for the purpose of providing our readership with a practical model of brain functioning and how it may inform criminal justice reform efforts, I recommend Dan Gardner’s book The Science of fear (2009) or Daniel Kahneman’s popular book, Thinking fast and slow (2011), both of which collapse complex brain networks, processes, and functioning into two systems: System 1 and System 2.
System 1: Fast Feeling
Kahneman proposes it is our System 1 brain that automatically, involuntarily, and unconsciously maintains our everyday model of the world view of how things are supposed to work. This includes our opinions and emotional responses to criminals, crime, and punishment. This maintenance is accomplished via a combination of inherited and epigenetic neural networks shaped by experience that are established in various brain areas for ready, albeit unconscious, rapid activation that sustain our conceptual models of the world. Gardner describes these responses as neurologically ancient, intuitive, quick, and emotional, with speed their defining quality (Gardner, p. 27). It is these networks that connect to our rapid “gut” feelings and snap judgments, as well as stimulate reflexive emotions such as fear, anger, and worry to perceived or real threats. Consequently, as Kahneman explains, “emotionally loaded words quickly attract attention, and bad words (war, crime) attract attention faster…”, so “… the mere reminder of a bad event is treated by System 1 as threatening” (Kahneman, p. 301). Criminal behavior and crimes are emotionally loaded bad words that are presented to the public and legislators on a daily basis by news and social media networks.
System II: Slow Reason
As Kahneman explains, “System 2 is activated when an event is detected that violates the model of the world that is maintained by System 1,” (p. 24), and “… takes over when things get difficult” (p. 25). Gardner refers to System 2 as that of “reason” (p. 16), that he characterizes as “calculating, slow, and rational” (p. 26), and which Kahneman suggests requires more conscious attention to rational and logical problem-solving. System 2 processes include “top down” cortical inhibitory neural networks that develop during the brain’s maturation that are central to emotional regulation and impulse control, as well as feelings of empathy and compassion; feelings that are disrupted when we are fearful, angry, or stressed (e.g., Sapolsky, 2017, p. 134).
(Author’s note: For readers interested in which brain areas might comprise System 1 and System 2 processing, a useful resource are chapters 8 and 9 in Neuroscience for clinicians (Simpkins and Simpkins, 2013).
However, as they pertain to America’s sociopolitical responses to crime and criminal justice reform efforts, there are three important System 1 shortcomings that Kahneman identifies that can interfere with the activation of System 2:
- First, as Kahneman points out, System 1 “has little understanding of logic and statistics.”
- Second, because System 1 maintains our model of the world, it “…cannot be turned off.” (p. 25).
- Third, because System 2’s rational and logical analysis involves larger groups of longer cortical neurological networks, System 2 is slower than System 1.
- Consequently, when System 1 detects an imagined or real threat to survival that activates our reptilian reflexive “fight or flight” networks, it understandably inhibits System 2 ‘s rational analysis of the threat and best response.
- This bypass is an evolutionary residual from the pre-Stone age era when a slow, logical analysis of a response to a perceived threat was generally detrimental to one’s health; a process adequately illustrated by GEICO’s TV advertisement “Chainsaw Holiday.”
- Neuroscience suggests there might also be a fourth variable that insidiously maintains and reinforces our System 1’s persistent views of criminals, crime and the appropriateness of punishment. As Sapolsky briefly discusses in his book Behave, “punishment, as a means of managing undesirable misbehavior—activates our dopamine system, so punishing norm violations is “satisfying” (Sapolsky, 2017, p. 66).
It should be clear how a dynamic confluence of these four interactive System 1-based brain processes can provide for both an understanding of the evolution and persistence of America’s increasingly punitive criminal justice system and era of mass incarceration without a sociopolitical interest in the activation of a System 2-based analysis of the eventual social complications of long-term social and judicial harms identified by critics; some of which worked against crime management efforts.
First, System 1—our “feeling” system—is continuously activated by daily exposure to crimes provided by news, social, and entertainment media. System 1 responds to such exposures as if they represented real threats to one’s safety; responses that can stimulate fear and anger. As Kahneman notes, viewers only have to hear the word “crime” to respond as if it were a present threat, and, as Gardner noted, the more heinous the crime, the more attention the media gives it. As one researcher noted, “Crime and fear dominate most U.S. newspapers and television news reports” (Altheide, 2003), and Gardner believes that “it is anger that distinguishes our feelings about crime.” (p. 198). In his book Behave, Sapolsky noted that “anger makes people less analytical and more reflexive in decisions about punishment” (Sapolsky, 2017, p. 62).
Second, as most of our readers know, reflexive unconscious responses to threats that activate amygdala-fueled emotions neurologically override slower System 2 emotion regulation networks that might otherwise be activated for a calculative, rational, and logical reasoning of behaviors driven by those emotions, including cortical areas involved in compassion and empathy. Again, watch GEICO’s “Chainsaw Holiday” TV ad.
Third, since, as Kahneman explains, System 1 is not neurologically designed for slower and conscious logical or statistical-based processing, it is unable to respond to statistically-based objective indicators that suggest that U.S. citizens are safer today than any other time in history (e.g., Altheide, 2003). Consequently, Gardner claims that over time this inability can create a public image of crime that bears little resemblance to reality (Gardner, p. 191); an image that likely contributed to the prevailing sociopolitical System 1 model of the world of criminals and crime during the 1990s and beyond.
Fourth, there is the dopamine-based emotional gratification experienced when criminals—as violators of social norms—were punished and incarcerated, suggesting that the more we punished, or hear/see about punishing criminals, the more persistently gratified (and relieved) we were likely to feel. Since System 2 analyses do not provide such gratification, there was diminished sociopolitical motivation to consider a System 2-derived rational analyses of the dysfunctional and long-term harmful consequences of increasingly punitive responses to crime.
“When people are frightened, the parts of the brain that are responsible for rational thinking cease to dominate.” (Soleil, May 3, 2013)
And so it was in the era of rising crime rates in the early 1990s that Senator Joe Biden drafted the Violent Crime Control and Law Enforcement Act of 1994; an understandable System 1 response to the sociopolitical fears of rising crime rates and the political pressures of the time. (The Democratic party had been consistently criticized by the Republicans for being soft on crime, and had lost elections accordingly.) When later signed by President Clinton, it became the largest crime bill in United States history. Among other measures, the 1994 Act increased the number of community-based police officers, created boot camps for juveniles, created many new death penalty offences, eliminated higher education provisions for inmates, required registration for sex offenders (the Wetterling Act), initiated the provision of “Three Strikes” for repeat offenders, subsidized the building of more prisons, all of which eventually led to the evolution of America’s prison industrial complex privatized prisons, and status of being the world’s leading incarcerator. It was this increasingly punitive attitude that also facilitated the building of supermax prisons and the use of administrative segregation in those prisons.
Although national crime rates (excluding those of drug crimes) began and continued to decline shortly after the implementation of Biden’s bill, this decline did not result in logically practical decreases or reforms of punishments for crimes as a shift to a System 2-based analysis might have suggested. To the contrary, punishments, particularly but not exclusively associated with illicit drug use, sex offenses, and crimes against children, became increasingly severe.
As criminal justice researchers eventually discovered, this unwavering use of increasingly harsh punitive laws and sentencing eventually culminated in structural shifts for entire communities and ultimately all of American society. These shifts exacerbated fundamental race, class, and gender divisions and inequality, and provided scarce resources to offenders in need (e.g., Brown, 2009), particularly those of released offenders who encountered significant reintegration difficulties because of post-release sanctions; sanctions one scholar claimed had little clear relationship to either rehabilitation or reintegration and were without much empirical support. In the opinion of one researcher, these sanctions were the result “of a society whose fear of crime and rejection of offenders … lead to even higher rates of recidivism” (e.g., Demleitner, in Reitz, 2018, p. 512). Drug crime rates continued to increase. Nonetheless, declining national crime rates suggested America’s sociopolitical “tough-on-crime” strategies were working well.
So well, in fact, that thirteen years passed before Senator James Webb, who was coordinating hearings on mass incarceration, noticed something odd: “…the United States has embarked on one of the largest public policy experiments in our history, yet this experiment remains shockingly absent from public debate” (cited in Brown, 2009, p. 6). So, as Brown suggested, there was little impetus to think through alternative approaches (Brown, p. 6.) Consequently, as one reporter observed, “American’ perceptions of crime are often at odds with the data (Gramlich, 2016).
“Attica…reflected, and helped to fuel, a historically unprecedented backlash against all efforts to humanize prison conditions in America.” Blood in the water (Thompson, 2016, p. 561).
The lack of public or political debate, and society’s eventual misperception of the pervasiveness of crime, is perhaps why, over the two and a half decades that followed then-Senator Biden’s increasingly punitive 1994 Crime bill, America’s criminal justice system incarcerated millions of individuals, thousands of whom were mentally ill or drug addicted, in prisons ill-prepared to care for them (invoking many civil lawsuits) in dangerous living conditions that contributed to a number of prison riots (e.g., Attica, New Mexico State Penitentiary), inmate injuries, rapes, and deaths. Millions more offenders were placed in community supervision with post-release sanctions that have been described as having little clear relationship to successful reentry or rehabilitation and that lacked clear empirical support (Demleitner, cited in Reitz, 2018, p. 512). Technical violations of community supervision rules frequently resulted in individuals being returned to prison rather than being retained in their communities; returns that only contributed to overcrowded conditions.
“Attica’s prisoners…begun to discuss…what they might do …to get the state to treat them as human beings who were serving their time, not as monsters deserving of abuse and neglect.” Blood in the Water (Thompson, 2016, p. 28).
Additionally, despite their intent and intuitive appeal, a number of the programs mandated by Biden’s 1994 Act or enacted later were eventually found to have counterproductive effects or were otherwise ineffective in reducing or deterring criminal behavior (e.g., boot camps for juveniles, Megan’s law, sex offender registration, three strikes, increased use of capital punishment, Amber alerts) that contributed to the illusion of effective crime management (Sicafuse & Miller, 2010; Gardner, p. 206).
Despite these results, some analysts have claimed that, in spite of government expenditures of billions, if not trillions, of taxpayer dollars to fight America’s wars on crime and drugs over the last three-four decades (GAO, 2017), there was no clearly convincing evidence that these efforts, then-Senator Biden’s increasingly punitive 1994 Crime Bill, or the parallel era of mass incarceration, had or would have any meaningful impact on reducing specific or national crime rates (e.g., Gainsborough and Mauer, 2000; DeFina and Arvanites, 2002).
As if to acknowledge the long-term risks of the persistent application of emotionally- fueled but harmful consequences of System 1-based solutions to crime, during the 2020 Presidential campaign debates with President Trump, Vice-President Biden acknowledged his 1994 Crime bill “was a mistake,” and President Clinton independently apologized for his signing Biden’s bill, alleging that “it just made things worse.”
To conclude, as a result of this author’s “System 2” analysis, it appears that America’s criminal justice system’s decades-long wars on crime and illicit drugs, followed by increasingly punitive and arbitrary sentencing that eventually evolved into America’s world leadership in mass incarceration, reflected the sociopolitical persistence of fear and anger-fueled System 1-derived responses to the perceived or actual threats of crime. Widespread System-1 functioning of millions of individual brains may also explain public and legislative indifference to the accumulating information about the long-term individual, social, and economically harmful consequences of America’s crime management efforts (e.g., Welch, 1999, 2005; Becket and Sasson, 2000; Petersilia, 2003; Brown, 2009; Alexander, 2010; Reitz, 2018); consequences that obscured any clear causal relationship between America’s decades of war on crime and illicit drugs and reductions of national crime rates. Rather than provoking a shift to System 2 for a rational analysis of these harmful results, this obscurity simply helped maintain widespread System 1 involuntary and unconscious world views of criminals, crime, and the emotionally gratifying effects of punishment.
Nonetheless, recent Gallup polls indicating that Americans were expressing a lessening concern about crime (e.g., GALLUP, 2018), combined with the significant harmful impacts of our current COVID-19 pandemic on jails and prisons, protests to incidents of police brutality such as the Black Lives Matter movement, increasing attention to racism, and the news media’s increasing attention to the release of innocent individuals, all suggest:
It is timely for reformists to again attempt to motivate a shift from our widespread System 1 views of criminals, crime, and the need for punishment to a System 2-based analysis of the long-term effectiveness of those views in reducing crime and recidivism rates.
We generally live in an emotion-fueled System 1-driven world in which how one feels about something appears to have become more important than what one thinks. (e.g., Questions like “How do you feel about…?” or “What are your feelings about…?” often dominate news anchors’ questions as well as respondents’ answers, rather than “What are your thoughts or beliefs about…?”). Because these System 1 influences cannot be turned off, information from neuroscience suggests that System 2-derived rational criminal justice and prison reform proposals should avoid depending on logic, statistics and humanitarian appeals that may be ”felt” by System 1 as a reduction of safeguards to crime-based risks to public safety, but instead provide brain-based explanations about how our responses to crime contribute to public misperceptions of criminals and crime, how those misperceptions can support practical reasons for modifying severe sentences (e.g., they do more harm than good, contribute to more crime because of the criminogenic effects), provide an increased emphasis on the advantages of rehabilitation, and the reduction of reentry barriers in ways that revise the widely held sociopolitical System 1 opinion that “once a criminal, always a criminal.” Information from neuroscience about how our brains function in response to the threats of criminal behavior and crime may be very helpful to the success of such proposals.
*Specific references available upon request.