The fallacy behind tougher penalties for ‘violent’ crime

The justice system’s definition of violence is not as clear or as meaningful as you might think. A new book argues that this clouds our judgment about criminal justice reform.

The reality is that many people currently serving sentences for violent crimes did not physically harm their victims.Jessey Dearing for The Boston Globe

Much of the talk around criminal justice reform — particularly when it comes from politicians — focuses on the overly harsh sentences for nonviolent crimes like drug possession. After all, people who committed nonviolent crimes seem to pose less of a threat to society and make for more sympathetic characters than people who have been convicted of committing violent acts.

But the reality is that many people currently serving sentences for violent crimes did not physically harm their victims. A burglar, for example, might be convicted of a violent crime because he had a weapon on him, even if he didn’t use it. And though there are plenty of violent offenders who did, in fact, hurt somebody, instances of violence do not necessarily speak to the danger those people now represent to society. Many people who are otherwise nonviolent may have once acted on a violent impulse driven by fear or provocation in a specific situation.

The reverse is true, too: Some nonviolent crimes are arguably more repugnant than crimes categorized as violent — and their perpetrators represent a greater danger. Financial scammers, for example, often repeatedly target the elderly. Nonetheless, fraud is often prosecuted as a nonviolent crime, meaning that it typically results in shorter sentences.

In a new book, “A Pattern of Violence,” David Alan Sklansky, a law professor at Stanford, points out that categorizing crimes as either violent or nonviolent is a recent and particularly American phenomenon. He argues that it’s a false dichotomy that has helped fuel and sustain mass incarceration and continues to stifle criminal justice reform efforts.

I spoke with Sklansky about how our flawed understanding of violent crime shapes bad public policy. Our conversation has been edited for length and clarity.

There’s a pervasive belief that violent crimes are the worst ones and that those who commit them deserve the least sympathy. Where did this distinction come from?

Before the early 1960s, almost nobody talked about violent crime as a separate category, which doesn’t mean that people weren’t worried about murders, rapes, or assaults. What it means is that people didn’t think that the category of violent crime as a whole was a sensible way to divide up the world of criminal activity and to distinguish the really bad crimes from crimes that aren’t so bad. But beginning in the 1960s, federal and state statutes started using the category of violent crime to increase penalties for people who were the most serious offenders.

This really picked up steam in the 1980s when there was a turn against the war on drugs. Liberals found that the most convenient way to argue for more lenient treatment of drug offenders was to distinguish them from violent offenders. So at the same time that the war on drugs began to wind down in the 1980s, we see things like three strikes laws and a range of other statutory innovations that place special sentences and special burdens on “violent offenders.”

We’re still living with that today. For example, during the pandemic, when everybody recognized that jails and prisons were vectors for the disease and that from a public health standpoint — let alone from a humanitarian standpoint — it made sense to try to reduce carceral populations. Lots of governors, both Democratic and Republican, drew the line at violent crimes and said, “We’re not going to release violent criminals.”

Harvard University Press

You mention in the book that Americans, particularly white Americans, tend to believe “white people commit crime” while Black people, men in particular, are “criminals.” How has racism shaped our treatment of violence in the law?

In addition to the question of whether violence is a category apart, the criminal justice system is heavily influenced by ideas about the nature of violence: whether it tends to result from circumstances or tends to result from the fundamental nature of the perpetrators.

I think that view — that violence expresses an individual’s character, as opposed to reflecting the circumstances in which a person has been caught up — tends to be highly racialized. White Americans in particular are more apt to view a violent criminal act as a manifestation of the offender’s fundamental character, as opposed to the situation in which the offender found himself or herself, particularly when it’s a young Black person. And we have gone very far in American criminal law in the direction of treating violence as though it’s a manifestation of offenders’ characters. That’s why we have laws that say, for example, if you’ve committed two violent offenses, we will treat you as a career violent offender and we will lock you up for decades or even for life.

Violence is very loosely defined by the law, and the definition varies from state to state. If there isn’t broad agreement on what counts as violent, how can it be that violent crimes necessarily demand harsher punishments than nonviolent ones?

There are lots of things that get classified as violent crimes even though they don’t involve what most people would think of as violence. Burglary is the largest category. In some states, you just need to carry a weapon or a simulated weapon while you’re carrying out the burglary. In other states, you just need to commit the burglary at night or it needs to be a burglary of a residence. But what never is required is that the burglar actually attack or physically threaten somebody during the course of the break-in.

Every state has a different list of what count as violent crimes. Louisiana, for example, classifies purse snatching as violent; most other states don’t. There are states where larceny is classified as a violent offense.

There’s always going to be pressure to treat some crime as violent if we think it’s really serious. So the boundaries of what counts as a violent crime wind up getting manipulated in order to fit what legislators at a particular moment think should be treated as a very serious offense. The problem is that we don’t use the term “serious”; we use the term “violent.” The result of that is that when people talk about violent crimes, it’s easy to forget that that’s a legal term of art, and that we’re not necessarily talking about crimes that are actually violent.

How has that distinction between violent and nonviolent offenders stifled broader efforts at criminal justice reform?

In two ways. First of all, it’s meant that a large and growing share of the people caught up in the criminal justice system are not eligible for any of the reforms that we’re adopting. Today we have a whole range of special statutory treatment for people convicted of violent offenses that would include not only longer sentences but exclusion from diversion programs, drug courts, veterans’ courts, and mental health courts. And also excluding them from programs that allow them to [vote] after serving their sentences.

And it has supported a fallacious, oversimplified way of thinking about criminal offending.

The great dilemma of criminal law is the tension between two intuitions we all feel. On the one hand is the intuition to understand people who have done something wrong, to try to figure out what drove them to do that — the instinct that says “There but for the grace of God go I.” On the other hand, we also feel a contrary pull, a pull that tells us when people have done something wrong they need to be held accountable, because people are moral agents. And there is a temptation to think that you could avoid that tension if you could just divide up the world of criminal offenders into two piles: the ones who are essentially human beings and redeemable and deserve sympathy and understanding, and the ones who are evildoers and whose judgments need to be condemned.

The problem is that these aren’t two separate categories. In the real world, human beings who are redeemable commit really bad acts that need to be condemned. And thinking that we can divide the world up into two piles not only means that we’re leaving a large group of people caught up in the criminal justice system out of the reform system, it also means that we are fooling ourselves and not confronting the hard dilemmas of criminal law.

You confronted this when you were working as a prosecutor in the Justice Department under then-attorney general Janet Reno. She had this theory that there are redeemable offenders and then there are what she called the “bad baddies.”

I need to first say that I still feel incredibly lucky that I worked for Janet Reno. She was a wonderful public servant, a wonderful prosecutor. I think she was wise and compassionate, exactly the kind of person you would want heading the US Department of Justice. Having said that, I do remember hearing her tell us that we needed to distinguish people who had gone wrong and needed help from the “bad baddies” you need to lock up and throw away the key.

She drew that distinction as part of an argument for leniency, for the group of defendants who weren’t “bad baddies.” But at the time I found it chilling and wrongheaded because it seemed to me that criminal defendants didn’t divide that neatly. The world of criminal offending is full of people who did very bad things but who aren’t defined by the worst things that they’ve done. Thinking that you can simplify this just by asking whether you are dealing with a redeemable person or a “bad baddy” is a tragic mistake.