Mimesis Law
10 July 2020

There’s No Reason To Free Violent Criminals

February 7, 2017 (Fault Lines) – Asking for mercy for non-violent drug offenders is a palatable argument for advancing criminal justice reform. It appeals to the idea of forgiveness, second chances, redemption, and so on. And for the more Vulcan among us, it represents cost savings in the criminal justice system by releasing people who apparently do not need to be incapacitated. The State saves money, a human life is redeemed and turned productive, and there is no direct victim who can object to the release. It looks like a win-win.

Bill Otis has argued that this a false trail, meant to distract from the true object for so-called reform. For too many outside the criminal justice system, incarceration is an evil. Non-violent drug offenders aren’t the only victims of aggressive policing and over-zealous prosecutors; every defendant is Jean Valjean. Notwithstanding the failure of reform for non-violent drug offenders, the self-righteous reformers are now targeting reform efforts at violent offenders.

Certainly there is evidence to suggest life plus cancer is unnecessary to vindicate criminal justice interests. First, our fear of crime might distort actual crime. Sex trafficking may not be as bad as political leaders suggest. Legalized marijuana might not be a gateway to hell for juveniles. Aggressive policing may not be constantly required to hold down crime rates.

Second, there are plenty of mitigation arguments. Science suggests that young brains may led people to do impulsive things. “Duh,” says every parent of a teenager. And this may contribute to why some people age out of crime but certainly not always. Drug addiction directly contributes to crime and possibly indirectly contributes to many more crimes. But, on the other hand, one can argue that it is merely a correlation because the same underlying behavior may drive both drug use and crime.

On balance there can be a strong case for providing opportunities for many juveniles, first-time offenders, addicts, and some other offenders to avoid prison or long prison sentences. Plus, as predictive tools get better, there may be better arguments for shorter sentences for a wider range of offenders. But human behavior is complex and confounded by a number of variables. So, there is never going to be a way to perfectly predict the future.

In the meantime, violent offenders cause a tremendous amount of damage. This can take the form of increasing the fear of crime, economic damages, and the non-economic damages associated with injury and death. Plus, violent crime tends to perpetuate itself into the next generation. Yes, prisons cost us money, but crime costs us, too. But all of that is ignored in the Boston Globe article, which instead blames the prosecutors:

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.

So, the person committing the crime isn’t the problem; obviously, it’s charging offenders for their criminal conduct is the problem. Hard to believe we’ve missed this obvious problem for generations. Indeed, prosecutors have a lot of power. But they are still downstream from the alleged criminal conduct, the report, and the investigation. And even when they charge the highest form of the offense, it’s still an offense and accompanying sentence set by the legislature.

Is there any reason why prosecutors would want to send more people to jail?

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 article ignores the reasons why policy-makers may want to imprison violent offenders. And it ignores why prosecutors would be complicit in what the article suggests is such an obvious error. Instead, it settles for a weak suggestion that it’s political—how many political jobs are really open anyhow? And it suggests that better evidence leads to prison, well, yes. Good evidence tends to lead to convictions that lead to prison sentences. Don’t we prefer that people be convicted by strong evidence?

Based on this, we can certainly expect some solid suggestions to follow:

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.

The feds and a number of states went to severely confining judicial discretion in sentencing. Grid systems became extremely popular, along with mandatory minimums. These systems failed to stem the increase in incarceration, so the obvious solution is to double down on the system. Moreover, prosecutors are not ministerial positions, like a DMV clerk. Deciding how to evaluate evidence in conjunction with the law takes some discretion; otherwise, we can get rid of an entire branch of the government and save a lot more money.

The Globe papers over some of these serious problems by relating the anecdote of Christopher. He was a felon that didn’t get sent to prison and turned his life around. Good for him. Seriously. But what significance is this here in a policy discussion? Let’s turn the table and recall the Cheshire Connecticut home invasion. This was a terrible crime committed by offenders with prior convictions and, noteworthy, seemingly no prior conviction for a violent felony. But it appears at least one of them simply hadn’t been caught.

That exemplifies the problem. We can’t know with certainty that someone will be violent again. But past violence demonstrates, at least, a capacity and willingness to use violence. We decry the system when Nicole Brown Simpson is repeatedly assaulted by O.J. until he kills her and then is found not guilty in a criminal trial. Prosecutors may side with victims over the offenders, but that’s because unlike the offenders, they are largely blameless.

Are we ready to excuse violence against women and murder simply because we don’t like the numbers of people in prison for those things? Instead why don’t we focus on reducing the crimes committed, rather than avoid prison sentences because we’re more afraid of large numbers than the human toll violence incurs.

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    8 February 2017 at 9:09 am - Reply


    The problem with the prison reform movement, like most other movements, can be found in the failure to deal with reality. There are far more monsters out there than do-gooders will acknowledge. Your post reminds us of this truth. The hard problem relates to sorting the petty criminal from the monstrous. We don’t do a very good job of differentiating between the two.

    The most important question when it comes to prison reform is this: Who should bear the risk of error and how much risk should they bear?

    Thanks for writing this important piece. All the best.