Justice Anorexia? Why We Imagine Our Courts to be So Lenient

Anorexia Nervosa is an eating disorder that leads sufferers to undergo often life threatening disciplining of their food intake in an effort to ward off imagined obesity. Something similar seems to beset our collective penal imagination. Despite decades of growing penal severity that have given us the world's largest prison population (and not just in per capita terms) and the most severe sentences, most Americans still imagine our courts to be the leaky and lenient institutions they were (unfairly) depicted as being in 1970s backlash movies like Dirty Harry (1971). As our justice system comes instead increasingly to resemble the hardened core of the robotic killing machines in the Terminator series, our ability to set proper limits to our own quest for security is very much in question. The political logic of this cognitive bias was on display this week in the growing controversy over whether or not terrorism suspects should be tried in civilian federal courts, or instead subjected to military tribunals such as those that very occasionally have operated at Guantanamo.

As Scott Shane ironically notes in the opening to his excellent wrap up article in the New York Times, John Walker Lindh, the so-called "American Taliban" who was tried in a federal court received twenty years (in a plea bargain to avoid possible life in prison), while David Hicks, an Australian Jihadi with a similar profile ended up walking away from a Guantanamo tribunal with a sentence of seven years, most of it already served.

On the op-ed page, former FBI special agent, Ali H. Soufan, notes that federal law is plenty tough on supporters of terrorism:

Prosecutors have at their disposal numerous statutes with clear sentencing guidelines. Providing material support, for example, can result in a 15-year sentence or even the death penalty if Americans are killed.

No doubt, much of the criticism of Attorney General Eric Holder for announcing that terror suspects would be tried in federal courts is cynical political maneuvering by Republicans who were willing to remain silent while the same approach was pursued by the previous administration. But the reason it rings true for many people and the media, is because for decades, politicians of both parties, have portrayed the federal courts as perennially "soft on crime."