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Incarcerating the non-violents. Time to stop?

November 12, 2011

2. Law, 7. Post-Trial

Incarcerating the non-violents.  Time to stop?

It’s a drumbeat echoed throughout academia.  The argument is that non-violent offenders pose no risk to society, and that we’re using precious resources incarcerating them that could be better used elsewhere.  If the premise were true – that no risk is posed to society – then it would be an easy argument to support.

The problem lies not in the “true” non-violent offender but in the way social scientists define “non-violent.”  I’m not going to get on a for-or-against abortion rant, but my research into “non-violent” reminds me of a student in a Law & Social Policy class I taught.  She needed a topic for her paper.  We ran through a few.  She was very adamant in her support of abortion, so I suggested she write a paper in two parts – defending abortion then defending pro-life.  By the end of the term, she had switched her personal belief.  One factor was what she perceived as dishonesty in proffered arguments.  Abortion is allowed, she told me, to protect the life and health of the mother.  “The problem,” she continued, “is how they define health.”  A mother who is concerned about having enough money to fed another kid is stressed.  Stress could lead to depression.  Depression is a mental-health issue.  Mental-health issues affect the health of the mother.  Ta da!  “It seems,” she said, “that the big money behind abortion has dumbed down the definition so far that there’s no honesty left.”

So before we deal with defining “non-violent,” let’s look at the impact of incarcerating folks.  And keep something in mind – the last thing I ever want is my client to do time.  But we’re talking on this blog – you and me – sometimes as me sharing legal information but also person to person.  Spout the non-incarceration line all you like when you’re at the defendant’s table, but then turn the tide and listen to yourself – your precious daughter lives on her own and her apartment just got burgled …

Lots of money is being spent to incarcerate “non-violents.”  This excerpt is a bit dated, but the point is made and the trend hasn’t changed:

The $24 billion spent last year by federal, state and local units of government to incarcerate 1.2 million nonviolent offenders was almost 50% larger than the entire federal welfare budget ($16.6 billion) which provides income supports for 8.5 million people, and represents six times what the federal government will spend on child care for 1.25 million children. Further, America is spending more building prisons ($2.6 billion) than universities ($2.5 billion). Overall, the combined expenditures for America’s prisons and jails have increased from $5 billion in 1978 to $31 billion in 1997.

And here in Pennsylvania:

The auditor general noted that over 19,000 inmates, 39 percent of the state’s prison population is made up of non-violent offenders at a cost that has tripled over the past 30 years. Find ways to give these folks more opportunity and there is no longer a need to house them on the state dime.

OK, then.  We have an exploding incarcerated population of non-violents and the money could be better spent elsewhere.  The argument has merit, right?   The issue becomes how we define “non-violent.”

I’m gonna grab some data from this US DOJ report in no particular order:

  • A non-violent presently sitting in jail has on average 9.3 prior arrests and 4.1 prior convictions
  • One-third were previously arrested for a violent crime
  • 8% possessed a gun during the commission of their “non-violent” offense
  • 15% committed Burglary (historically an inherently violent felony) as their “non-violent” offense
  • 19% had so much drug weight that their “non-violent” offense was Trafficking
  • 88% of “non-violents” fall into the “serious offender” category:  They used a weapon in the current offense; had a prior violent-crime conviction; they were on probation or parole, or had escaped at the time of the present offense; or had multiple prior sentences

Enough, eh?  Naw, one more stat:  70% of released non-violents are re-arrested for another crime within three years.  That’s pretty funny seeing the overall recidivism rate for all released folks is ten points lower at 60%.

The definition of “non-violent” is stupid.  I think if we walked down the street and asked random people to classify a list of crimes as violent or non-violent the answers would be predictable.  Possessing an ounce or less of weed is non-violent.  Breaking into someone’s house packing a gun is violent.  We need to set aside the observation that people get killed when they wander too close to the pot fields in Columbia and Humboldt County, California – and that rolling a joint out of your dime bag is directly linked thereto.

So we need to both narrow and broaden the definition of “non-violent.”  There is no way I can be convinced that Trafficking, Burglary, or possessing a gun during the commission of a crime is non-violent.  That’s like driving 100 MPH through town and claiming you drove safely because you survived and nobody else got hurt.  Luck of the draw, my friend.

What’s a proper definition of non-violent?  Crimes with no property damage and no personal injury.  Crimes committed without possessing a weapon.  Misdemeanors and first-time Felony 3’s.  And nothing that classifies historically as an inherently violent Felony – Burglary, Arson, Rape, Robbery, Kidnapping, and Sodomy.  Don’t jump too quickly – in addition to the Burglary stat above, another 1% of “non-violents” are in for Arson.

And we need to transit from non-violent crimes to non-violent offenders.  Sorry, brothers, but if you get popped for stealing under $2,000 so you get a Misdemeanor grading, don’t tell me that counseling or job training is gonna benefit you when your NCIC shows a history of snatching purses from grandmothers.  You’re laughing at the system when the bleeding hearts label you non-violent … and don’t forget, if I’m your attorney then I’m laughing right next to you.  No jail time is the only bright side to a client’s conviction.

Should we sentence non-violents to other than incarceration?  Yes, absolutely.  But let’s be honest about the discussion.  According to the US DOJ, we’re talking about 12% of the folks currently labeled as such, not the 1,000,000+ claimed by academia.

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About Clyde

Clyde is the lead attorney in the firm. Licensed to practice in 1993, he's also taught Constitutional and Criminal Law for several years at a private university, primarily at the Master's level.

View all posts by Clyde


  1. 3 views on whether states should legalize marijuana | Head Shop Law - September 15, 2012

    […] One the flip side, I wrote on my other blog about the “stop incarcerating nonviolent offenders” mantra.  ”Stoners shouldn’t be in jail,” we hear often.  I get it.  But “nonviolents” is a bit of a misnomer.  From the other post: […]