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July 27, 2015

Making the case that sentencing reform should (and must) include "violent" offenders

Two different law professors have recently published, in two different major papers, two important new commentaries calling for the modern sentencing reform movement to look beyond just so-called non-violent offenders.  Here I will provide links to and snippets from these pieces while suggesting both should be read in full:

In the Los Angeles Times, Andrea Roth's op-ed is headlined "Let's consider leniency for many 'violent' offenders too":

The White House's push for meaningful criminal justice reform is laudable and arguably unprecedented. But if the president and reformers hope to radically reduce the number of people in American prisons and address glaring disparities in criminal justice, focusing narrowly on nonviolent drug offenses won't get them very far.

The truth is that prosecution for violent crimes, and not prosecution for drug possession and sales, is the primary engine of mass incarceration in this country....

Conceptualizing nonviolent drug offenders as somehow qualitatively different from other offenders creates a false distinction. Many crimes labeled “violent” under our criminal codes are either directly motivated by drug addiction or directly related to drug sales or possession. A heroin-addicted veteran who walks into a garage to steal tools to feed his drug habit has committed a first-degree burglary, a “violent” crime under many state codes. A drug-motivated unarmed robbery in which the offender pushes the victim, takes cash from his wallet, and runs away is also a “violent” crime under most state laws. A person who owns a firearm and has it in his house while engaging in a drug deal has committed a “crime of violence” under the federal sentencing guidelines. In short, “violent crime” is a legally constructed term that includes within its broad reach a great deal of drug-related conduct that wouldn't be considered “violent,” as Americans colloquially use that term.

Painting nonviolent drug offenders as a special group that deserves leniency obscures the fact that even those guilty of indisputably violent acts should not be overcharged or sentenced to disproportionately long prison terms. Piling on charges and strong-arming guilty pleas under the threat of mandatory-minimum sentences are fixtures not merely of drug prosecutions, but of all prosecutions in the modern tough-on-crime era.

In the Washington Post, John Pfaff's opinion piece is headlined "For true penal reform, focus on the violent offenders":

It’s true that nearly half of all federal inmates have been sentenced for drug offenses, but the federal system holds only about 14 percent of all inmates. In the state prisons, which hold the remaining 86 percent, over half of prisoners are serving time for violent crimes, and since 1990, 60 percent of the growth in state prison populations has come from locking up violent offenders. Less than a fifth of state prisoners — 17 percent — are serving time for nonviolent drug offenses. And contrary to Obama’s claim, drug inmates tend to serve relatively short sentences. It is the inmates who are convicted of violent crimes who serve the longer terms.

Now, to be clear, not all violent offenses are especially harmful. But a significant fraction of those in prison for violent crimes are there for serious violence: murder, aggravated assault, armed robbery. Moreover, many officially nonviolent inmates have histories of violence.

In other words, for all the talk about nonviolent offenders, a majority of our prisoners have been convicted of a violent act, and even more have some history of violence. And because no one thinks we should set every drug or other nonviolent offender free, at some point we are going to have to reduce the punishments that violent offenders face if we really want to cut our breath-taking prison population down to size.

But this idea is a political third rail, and no leading politician has been willing to risk touching it. Almost all the reform proposals we have seen focus exclusively on scaling back punishments for drug and other nonviolent crimes.

That’s what made Obama’s commutations and policy speeches so disappointing. Incarceration is driven by so many local factors that neither federal sentencing reform nor presidential commutations can have much of an impact. What the president may be able to do, however, is use his national pulpit to shape the debate. Obama missed a major opportunity to influence the current conversation on how to reduce incarceration.

July 27, 2015 at 06:40 PM | Permalink


Thank you. This is the point that I have been making for years on this blog. There is no meaningful distinction between violent and non-violent crime; it is just word play. I'll add one more that the articles do not point out. In my state first degree sexual contact is a "violent crime". All it takes for one to meet the criteria of first degree sexual contact is to touch another person on the genitals. How touching someone can be an act of violence is beyond my comprehension, but there it is. That's what the law says. The law doesn't have to be rational.

Posted by: Daniel | Jul 27, 2015 7:56:03 PM

Take a peek at the 2010 case law on what an aggravated felony is.

The pdf is 72 pages long.

AGGRAVATED FELONY CASE SUMMARY By Immigration Judge Bertha A. Zuniga (San Antonio).

Posted by: George | Jul 27, 2015 9:51:14 PM

Thanks for giving me my laugh for the night George. Modern judges make medieval Scholastics look unambitious.

Posted by: Daniel | Jul 28, 2015 12:08:02 AM

Great Blog and sharing great information.
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Posted by: Naresh | Jul 28, 2015 3:17:06 AM

The disconnect between legal definitions and common recognized meanings such as the word "violent" is the real problem with addressing this issue. You'd never know it by those who favor more criminalization and punishment and their refusal to recognize and address this. Why should they when they have been stacking the deck for 30+ years?

Posted by: albeed | Jul 28, 2015 7:07:12 AM

"In California, even after recent reforms to its three-strikes law, an offender with two previous felony drug convictions who commits a carjacking by “threat” receives a mandatory life sentence."

Ms. Roth is either a woefully misinformed law professor or she is a liar. Under no provision of the three strikes law before or after the recent amendments is this possible.

Posted by: David | Jul 28, 2015 9:31:39 AM

The above was a bit too aggressive. Suffice it to say that it is inaccurate. Drug convictions are almost never strike priors and as a result, and without that qualifier, the statement is incorrect.

Posted by: David | Jul 28, 2015 9:54:56 AM

Daniel, Bill O'Reilly is backing "Kate's Law" in a big way, so it seemed a good time to learn what an aggravated felony was. As suspected, it covers just about everything. The real funny part is that since 2010 it likely changed too much to rely on this summary.

Posted by: George | Jul 28, 2015 3:44:00 PM

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Posted by: madhu | Jul 29, 2015 1:24:45 AM

Nice Post
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Posted by: Naresh | Dec 3, 2015 12:29:17 AM

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