The war on crime is over and we lost. Not that crime rates are rising -- in fact, criminal activity has been declining dramatically for most of this decade. Organized crime, long assumed to be as perennial as death and taxes, has been virtually wiped out by RICO-armed feds. In many cases, sophisticated DNA testing provides unprecedented assurance that the convicts who do the time actually did the crime, prison populations are at record highs.
But no one feels safer. Indeed, in "The Culture of Fear: Why Americans Are Afraid of the Wrong Things" by Barry Glassner (Basic Books, 231 pages, $25), the author points out that in the mid-1990s, two-thirds of Americans polled described themselves as "truly desperate" about crime, almost twice as many as in the 1980s, when crime rates were actually higher.
And in addition to losing public confidence, what has really been lost in the war on crime, without significant public debate, are fundamental individual rights: due process, equal justice and personal privacy.
Blame Willie Horton. Horton, the Massachusetts murderer who committed violent rapes while out on a weekend furlough from prison, killed more than Michael Dukakis' presidential bid. The devastating Willie Horton attack ad used by Republicans also ended any bipartisan debate about crime, and even dull politicians got it. (Four years later, Bill Clinton, always a quick study, would interrupt his presidential campaign to go back to Arkansas to deny executive clemency to a mentally retarded murderer facing execution).
In a stroke, then, the Horton furor effectively silenced all the liberals (except Mario Cuomo) on criminal justice issues, and post-Horton, the only debate between Republicans and Democrats has been over who is tougher on crime.
The resulting war on crime has been strictly rhetorical. For openers, Three Strikes and You're Out was irresistible, as natural for law enforcement as for baseball. In practice, inconveniently, it sometimes means lifetime incarceration for nonviolent felons, or the court-ordered release of violent prisoners to make room for new Three-Strike inmates. But such details do not show up in campaign commercials.
Next, getting tough with soft judges, crime-fighting legislators grabbed back judicial discretion by legislating mandatory minimum sentences. The solons soon found such sentences addictive: today there are more than 100 separate federal mandatory minimum penalty provisions in more than 60 different statutes. In this macho crime-fighting environment, President Clinton's proposal to add 100,000 new cops on the beat was a no-brainer, a sure winner with voters even if it had virtually no actual impact on law enforcement.
Crime-fighting by cliche, unfortunately, obscures the reality of what is actually occurring in the criminal justice system.
To start, the criminal due process rights carefully crafted by three decades of Supreme Court decisions are today largely academic, because 95 percent of all criminal convictions are obtained without a trial. (Indeed, for the victims of the occasional defendants who can afford an all-out legal defense, justice is now often a two-step minuet, with a civil trial following the criminal case, a la O.J.)
A Philadelphia municipal judge, criticized by a columnist for giving probation to a repeat offender car thief, described the process candidly:
"I do not sentence. I only give the sentence the DA and the defender have already agreed on. I'm the instrument of this method of getting rid of cases wholesale. I'm a wholesaler, not a retailer. I had 81 cases today, 78 the day before. I do 300 cases a week, 15,000 a year."
So much for due process.
The ideal of equal justice under the law has also been a casualty in the war on crime. Unarmed and unthreatening, Amadou Diallo was recently gunned down in the vestibule of his home by New York cops who blasted away with 41 shots; his race seems to have been his only offense. The undercover officers who shot him were part of an elite anti-crime squad that has had dramatic success in the war on crime.
In New Jersey, black motorists are three times more likely than whites to be stopped by state troopers, and similar racial profiling is sufficiently widespread that the American Civil Liberties Union is circulating a national questionnaire called "Driving While Black or Brown" (DWB for short) to collect data on the practice.
Georgetown University law professor David Cole contends that this double standard of justice is pervasive in America. In a controversial new book, "No Equal Justice: Race and Class in the American Criminal Justice System" (The New York Press, 218 pages, $25), Cole contends that the criminal justice system routinely denies basic rights to blacks, while paying lip service to the notion of equal rights.