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June 21, 2016

"What is 'violent' crime?"

The question in the title of this post is the very first sentence of this effective Salon commentary by Benjamin Levin. The commentary has this (much less pithy) full headline and subheadline: "It’s time to rethink 'violent' crime: How mislabeling misconduct contributes to our bloated criminal justice system: The distinction between violent and nonviolent crime is a problematic metric for determining criminal punishment." And here are excerpts:

What is “violent” crime? Perhaps that seems like an easy question — murder is; tax evasion isn’t. But the distinction between violent and nonviolent crime has proven tricky for lawyers, judges and legislators.

Policy debates about proper punishments or enforcement too often break down because the various stakeholders get hung up on whether the crime in question is “violent.”  If we are serious about addressing mass incarceration and our bloated criminal justice system, it’s time to rethink what counts as violent crime.

Perhaps nowhere is this issue more evident than in recent debates about drug crime.  Where the bipartisan push to reduce prison populations has focused on “nonviolent drug offenders,” sentencing reform opponents have argued that drug crime is inherently violent.

Last year, the National Association of Assistant U.S. Attorneys (an organization representing federal prosecutors) published a white paper arguing that drug trafficking is violent crime.  Last month, William Bennett and John Walters (the drug czars for Presidents George H.W. Bush and George W. Bush, respectively), penned an op-ed echoing this claim.

I think that Bennett and Walters are wrong on the facts, but their argument also highlights the problem with using the violent/non-violent distinction as a relevant metric of criminal punishment.

Bennett and Walters claim that drug trafficking is violent because of the harms that drugs themselves do (i.e., by hurting users and by imposing third party harms). Notably, their claim isn’t that drug dealers use violence to make money and control their turf.  Indeed, a body of research shows that prohibition – not the drugs themselves — has made drug dealing a dangerous industry.  Rather, their claim is that drug dealing is violent because it has victims. And that’s a much broader claim.

They’re certainly right that many illegal drugs carry with them severe health risks and risks to third parties, causing danger at home, in the workplace, and on the road. But does that make drug dealing a “violent crime”?

Bennett and Walters’s argument appears to rest on an expansive definition of violent – an act is violent if it does harm in the world or if people suffer directly or indirectly because of it.  This definition would capture many traditional violent crimes (murder, rape, assault, etc.), but it would also sweep in a great deal of conduct that does harm, directly or indirectly.  Why isn’t selling alcohol or cigarettes a violent act?  What about gun possession?  Drunk driving?  Theft?  Or even tax evasion?

While the Supreme Court has struggled to define when conduct is “violent,” the real-world consequences of this definitional question are critically important: the law often treats violent and nonviolent crime very differently.  Many laws govern the conduct of those with criminal records, restricting housing, employment, voting and a range of benefits. These laws often depend upon the nature of the underlying offense — a violent felony might preclude someone from finding work in a given industry; a nonviolent conviction might not.  Additionally, a conviction for a violent (as opposed to a nonviolent) crime might trigger a much longer sentence if an individual commits another crime — even if the second crime is nonviolent or less serious....

Certainly, there are many cases in which most of us would agree that the alleged conduct is violent. And there may be cases in which most of us would agree that conduct is nonviolent.  (And, those latter cases often serve as the easiest point of bipartisan sentencing reform.)  Yet Bennett and Walters’s argument shows that most harmful or objectionable conduct might be classified as violent.  If a determination that crime is violent rests simply on finding someone who suffers directly or indirectly based on the act in question, then the definition knows no bounds.

If “violent crime” means so many things, then it only creates the illusion that society has sorted out the true “bad guys” or punished the worst conduct.  Instead, it becomes a proxy for social harm, risk prediction, or moral condemnation. It may be that consensus on questions of criminal punishment is an impossible goal.  But continuing to cast all objectionable conduct as violent is counterproductive and makes meaningful compromise and reform even more difficult.

June 21, 2016 at 09:02 AM | Permalink

Comments

This post brings up the question of using words in a statute to trigger consequences and then adding meaning to that word (as used in a statute) that doesn't necessarily comport with common meaning. Is drug-dealing a violent crime, well, that depends. Is pimping underage girls a violent crime--in every case, almost certainly yes. Wonder how the Salon guy would treat that. I happen to think that pimping is one of the most disgusting crimes, and I would have zero problems with executing those who pimp underage girls.

The post also makes a fundamental mistake--who cares if Bennett's and Walters' point is just about the third party harms that flow from drug use, and not the violence (or threat of violence) that is necessary to ply one's trade as a drug dealer--the fact is--in many many cases, if you are a non-casual drug dealer, the willingness to commit violence is part and parcel of your everyday life. So this: "Why isn’t selling alcohol or cigarettes a violent act? What about gun possession? Drunk driving? Theft? Or even tax evasion?" is really a dumb question.

Posted by: federalist | Jun 21, 2016 9:15:17 AM

Whoooooosh.

Posted by: Fat Bastard | Jun 21, 2016 11:50:26 AM

http://www.breitbart.com/big-government/2016/06/21/report-released-criminal-aliens-committed-nearly-10xs-crimes-obama-admin-told-congress/

wonder how many of these guys committed "violent" crimes

Posted by: federalist | Jun 21, 2016 2:11:12 PM

Federalist,

Your point about drug dealers being violent is already addressed in the excerpt, his argument (which I agree with FWIW) is that the violence prevalent in the drug trade stems not from the activity itself but from prohibition. If drugs were legal the harms users experience would still exist but the incentive for illegality on the part of suppliers would pretty much vanish (as happened when alcohol prohibition ended).

Posted by: Soronel Haetir | Jun 21, 2016 6:22:28 PM

Yes, but SH, the fact is that they are still willing to use violence to ply their trade, whether or not other causes are present. Thus, the violence associated with the activity is attributable to them--even if one thinks the prohibition wrong. In other words, drug dealers who use violence or the threat of violence to maintain their business do not get absolution from the fact that violence wouldn't be necessary if there was no prohibition.

For better or worse, the democratic process has determined that certain drugs are going to be illegal. There is no argument that there is a defect in the democratic process (e.g., rent-seeking behavior etc.) Like everyone else, drug dealers are bound by that decision, and it is legitimate (even if one disagrees). So blaming the state for the violence is anti-democratic at its core.

Posted by: federalist | Jun 21, 2016 6:35:02 PM

Raising that discussion and suggesting a change is democratic as well.

Posted by: Erik M | Jun 22, 2016 10:40:05 AM

The "democratic process" once prohibited interracial marriage. Or, are you okay with that example of the voice of the "democratic process"? At its core, government exists only so that we may live together outside of the state of nature. Anything else, including all the favorite "shoulds" and "should-nots" of the statists-authoritarians, are superfluous busybodying. If you don't like the boogyman of the week, don't associate with/use the boogyman of the week. I am quite sure that your heartfelt version of "how it should be done" is quite comical and nonsensical to many/most.

Posted by: MarK M. | Jun 26, 2016 3:02:33 AM

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