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February 6, 2017

"Why we should free violent criminals"

The title of this post is the headline of this Boston Globe commentary authored by By David Scharfenberg. Here are excerpts:

The drug war, [some experts] say, is not the major force behind America’s huge prison growth over the last several decades. In fact, less than 20 percent of the country’s 1.5 million prisoners are serving time for such offenses. Free them all tomorrow, and the United States would still have the largest prison population in the world — larger than Russia, Mexico, and Iran combined.

Violent crime is a much more important driver, with almost half of prisoners doing time for offenses like murder and robbery. To make a real dent in mass incarceration, experts say, the country will have to do the difficult work of freeing more of these criminals sooner. “We put all of our attention — almost all of our attention — on things that aren’t nearly as important as the things we ignore,” says Fordham Law School professor John Pfaff, author of the forthcoming book “Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform.”

Pfaff says the criminal justice reform movement had to start with talk of greater leniency for nonviolent offenders.  It couldn’t leap right to a discussion of, say, cutting murderers’ sentences down to a European-style 10 years. But now, he says, it’s time for something more. Not all “violent crime” is as serious as the phrase would imply. In some states, burglarizing a house when no one is home is considered a violent offense. And what about the 18-year-old robber who was carrying a gun but didn’t actually use it?

As for long sentences, it’s true that they play a role in driving prison growth.  “Three strikes” laws, mandatory minimums, and other tough-on-crime measures have increased time served for all kinds of offenders — pot dealers and violent criminals alike.  A Pew analysis of state prison data showed that prisoners released in 2009 served 36 percent longer than those who were released in 1990.

But at three years, the average prison term is shorter than the conventional wisdom would suggest. Pfaff argues that the real concern is not sentence length, but serving any time in prison at all. Whether you serve 12 or 16 months, he says, the impact is the same. Upon release, convicted felons have a hard time getting decent jobs or good housing. And with the odds heavily stacked against them, they’re more likely to reoffend.

The criminal justice reform movement, Pfaff argues, needs a reorientation — and a willingness to show mercy for prisoners beyond the proverbial nonviolent drug offender.  That means diverting more people — whatever their offenses — away from the system, thereby sparing them from a criminal record. And there’s only one way to do that, he says: Change the behavior of the most powerful actor in the criminal justice system, the prosecutor....

Over the last couple of decades, Pfaff’s research shows, they’ve become ever-more aggressive about seeking jail time. In the mid-’90s, prosecutors filed felony charges against about one in three arrestees.  By 2008, it was more like two in three. Why are prosecutors getting more aggressive? Maybe because they’re more politically ambitious, Pfaff theorizes. They may think a tough-on-crime record can be parlayed into a run for higher office. Or maybe the police are developing stronger cases, using more surveillance-camera footage, for example.

Whatever the cause, the impact has been enormous.  The push to file more felony charges, Pfaff writes in his forthcoming book, is the single most important factor in the growth in prison admissions since crime started dropping in the early-’90s.  One solution: legislate a reduction in prosecutorial power.  Pfaff suggests creating detailed charging guidelines that would force prosecutors to steer more offenders away from the prison system.

Getting that sort of thing on the books will be difficult though; prosecutors have substantial clout in state legislatures and don’t want to see their power diminished . Which is why advocates may have better luck urging district and state attorneys’ offices to change from within and produce more flexible prosecutors.

February 6, 2017 at 09:52 AM | Permalink


The headline is a tad misleading. We "free" them all the time since each act of violence only gets you so much prison time. The details is where the devil is. This is another installment of "obvious things that sometimes need to be remembered."

Posted by: Joe | Feb 6, 2017 11:04:08 AM

Off-topic, but somewhat related:


Posted by: federalist | Feb 6, 2017 11:21:51 AM

Releasing violent criminals . . . . now there's an idea.

Posted by: federalist | Feb 6, 2017 11:23:46 AM

Where do Scharfenberg and Pfaff live? The released prisoners must be placed in the houses surrounding theirs.

Posted by: David Behar | Feb 6, 2017 11:49:03 AM

While obviously every state is different, I took a look at my state's numbers. Looking at the individual counties, you could see a big difference between counties. In the most rural counties, felonies only represented about one-fourth of the total "criminal" charges. (I am excluding traffic offenses.) In the most urban counties, the count was closer to 50-50 and, in some, more felonies were filed than misdemeanors. However, those numbers only look at the state courts -- thereby ignoring a key component of the criminal justice system -- city court. In a highly urbanized county, most of the population and most of the geography are within city limits, and any minor offenses can be sent to city court. In a highly rural area, a good chunk of the population and most of the geography are outside city limits, and all minor offenses have to be filed in state court. My experience in both urban and rural courts is that most prosecutors would rather let the city prosecutors handle misdemeanors in city court (with limited exceptions such as repeat DWI offenders).

I would caution those who want "guidelines" for charging decisions. Most prosecutors use discretion in charging and pleading that results in a plea to something significantly lower than the "true offense." If you give a legislature power to establish guidelines for charging decisions, you will probably get guidelines that tell the prosecutors to actually charge the offense that was committed.

Posted by: tmm | Feb 6, 2017 1:19:52 PM

I live in a state with guidelines, it has no impact on the prosecutor's decision whether to charge the offense that was committed or not. The reasons they prosecute felonies as felonies is they don't want political blowback.

Anyway, the article is correct that we have to acknowledge these issues if we want to reduce prison overcrowding. Some people commenting don't see that as a goal so they aren't going to agree, but they're also not the target audience.

Posted by: Erik M | Feb 6, 2017 2:02:18 PM

Erik. "not the target audience?" We are not the owners of the criminal law? We do not pay your salary? We are not the victims of crime?

Whatchu mean? You plan to loose the criminals behind our back, and without our agreement?

And if you ever get to pull that stunt off, will the lawyer profession profit or hurt from that stunt?

The lawyer did that in the smallest way, and the murder rate jumped in 20 cities, despite ever falling blood lead levels. Is that mentioned in the article? That is a naturalistic experiment, and the results are in.

Posted by: David Behar | Feb 6, 2017 3:21:54 PM

The target audience are people who want to reduce prison overcrowding but only feel comfortable in ending time for low-level, non-violent drug offenders. This article is about telling them how that's not good enough. It's not about convincing people that think mass incarceration is fine that it isn't.

Posted by: Erik M | Feb 6, 2017 4:36:29 PM

Erik. Incarceration rate dropped 3% last year, and murders shot up 15% in 20 large cities. Perhaps a coincidence. Lead levels continued dropping. Here is a map from the left wing NY Times.


Posted by: David Behar | Feb 6, 2017 5:15:45 PM

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