The Huge Problem in Our Prisons That No One Wants to Touch

October 9th 2015

Thor Benson

President Barack Obama has argued that we have too many nonviolent drug offenders in prison, which is contributing to our mass incarceration addiction. Many news sources and politicians on both sides of the aisle have taken the same position.

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On the other side, some have contended that letting nonviolent drug offenders out of prison would only make a small dent in the total number of people incarcerated in the U.S.

A problem in dealing with this issue, we've discovered, is the very definition of a "violent" offender.

"What it means to be convicted of a violent crime has to be examined in two respects," Joe Margulies, a law and government professor at Cornell University, told ATTN:. First, you have to look at what a violent crime is according to a given state, he said. But that definition varies widely from state to state.

"A violent crime is what the state legislature defines it as," he said. "For instance in Alabama, to take one example, the burglary of an unoccupied shed, like a detached garage, is by definition a violent crime." Someone who decides they really want your riding lawn mower and steals it is considered a violent human being, at least in Alabama.

Second, just because a person does something violent doesn't mean they are by nature violent, Margulies said. "Let's say it was conventionally a violent crime; it was what you and I would call violent behavior," he said. "That doesn't mean that the person ever was really violent or, more importantly, that they will be violent if they are released tomorrow. ... Everything we know about addiction and mental illness shows that [they] can sometimes, if [left] untreated, lead to outbursts."

Rather, Margulies argues, society should treat the illness, not the symptom. Instead of throwing someone in prison for a longer sentence because they did something somewhat violent, help them get to a place where they no longer feel so many negative feelings. Someone who lashes out during a drug withdrawal isn't necessarily a violent person in general. "The problem with criminal justice reform today is that it doesn't take any of those nuances into account," Margulies said.

The recently announced bipartisan criminal justice reform bill does very little to help anyone who's considered a "violent" offender.

According to the FBI's definition of violent crime, it includes "murder and non-negligent manslaughter, forcible rape, robbery, and aggravated assault." On top of that, its definition includes the "threat of force."

Margulies said that if you are witnessed saying that you intend to hurt someone, even if you don't do it, can result in your crime being elevated to a violent crime in certain scenarios.

Furthermore, being arrested with a weapon, even if it wasn't used, can also change how a crime is classified. "In the eyes of the law, the mere possession of a gun changes the character of the offense from a low-level nonviolent drug offender to a 'gun user,' and that's a very different thing," he said.

Having a gun or knife or other weapon on you when you are caught selling weed could transform your nonviolent crime into a violent crime, regardless of if it has ever been used to harm someone.

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Even the time of day can affect whether a crime is classified as violent or not. "In some states, depending on what time of day you do a burglary, it can be classified as a violent offense or a property offense," Nazgol Ghandnoosh, a research analyst at The Sentencing Project, told ATTN:. A crime committed at 9 p.m. is somehow different from a one committed at noon. She said there are too many technicalities that can turn a nonviolent crime case into a violent crime case in the eyes of the law.

Ghandnoosh also agrees with Margulies' argument that we need to create policies that allow criminals who have actually been violent to be rehabilitated and released. "We need to think about not creating policy or having criminal justice practices that come out of emotions and fear, but that they have some kind of reasonable basis to them," she said.

The Sentencing Project has advocated for a maximum prison sentence of 20 years, which is close to Norway's maximum of 21 years. Other countries have similar policies. "If we're spending this much money incarcerating people for such long sentences, that's money that we could be spending on all kinds of programs that could help prevent crimes," she said. As we've noted before, a major factor contributing to mass incarceration problems is extremely long sentences, and longer sentences don't typically deter crime.

Overall, we may need to reexamine what is truly a violent crime and stop adding years to people's punishments for crimes that were not truly violent. "We have grossly over-defined and overextended the category of 'violent' offenders," Margulies said.

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