The Criminal Justice Conflict

Amidst a growing chorus of politicians pushing for improved criminal justice legislation at the federal level, presidential candidates touting their justice policy bona-fides, and President Obama’s speech calling for sweeping reforms to the justice system, policies aimed at the incarcerated are enjoying a newfound popularity in the political world. It’s a considerable feat, especially for those that recall the "tough-on -crime" rhetoric that dominated Washington just two decades ago.

But in the midst of this swell in support for reform, an increasingly vocal group of advocates, academics, and policy experts is arguing that if politicians are serious about ending mass incarceration, their current strategy—to promote reform efforts for a small group of offenders—is profoundly off the mark.

"Lots of people think that 80 percent of the people who are locked up [in prison] are there for low-level drug offenses and that’s not even true," explained Marc Mauer, executive director of the pro-reform nonprofit the Sentencing Project, in an interview with Slate earlier this year. "Half the people in state prisons today have been convicted of a violent offense. There’s going to be an inherent limitation on how much of a reduction in incarceration we can achieve if we’re not even considering them."

Maurer’s observation touches on an issue the current crop of would-be bipartisan reformers have largely overlooked. Although politicians are working to improve the justice system, they’ve cautiously tiptoed around discussions of violent offenders, talking instead about reforms designed to address the needs of "nonviolent drug offenders", a group that has risen to prominence in the political lexicon as the War on Drugs fades in popularity.

It’s this focus that some experts claim misses the bigger point of prison reform. "Emphasizing the drug war and nonviolent crimes like the president did [in July] can create the perception that nonviolent offenders are the sole victims of mass incarceration," wrote Vox’s German Lopez in an article published shortly after Obama’s address at the 2015 NAACP National Convention. "That’s just not the case."

The tension between those in favor of comprehensive reform for all prisoners and those who want to limit attention to nonviolent offenders is the result of an unresolved conflict that lies at the heart of the national conversation on criminal justice reform. With nearly 1.6 million prisoners split up unequally between federal and state prisons, bridging the divide between these two groups of reformers could have a serious impact on attempts to reduce the number of people incarcerated in the United States.

In order to get a better grasp of the numbers at play here, it is helpful to understand why the distribution of inmates in between federal and state prisons is so uneven. According to the latest figures from the Bureau of Justice Statistics, of the 1.6 million people estimated to be behind bars, a little more than 200,000 are housed in federal prisons. That leaves nearly 1.4 million people in state custody, meaning that when the high levels of incarceration in the United States are discussed, we are almost always referring to those housed in state level prisons.

But the disparity between federal and state prisons does not end with differences in population— there is also a significant divide in the number and types of offenders incarcerated at different levels of the prison system. At the end of 2013, the BJS reported that "more than half (54 percent) of all state prison inmates were violent offenders" (a figure that includes those convicted of robbery, murder, sexual assault, and non-negligent manslaughter), while 16 percent of state prison inmates were incarcerated for drug offenses. Conversely, at the federal level the BJS found that "more than half (51 percent) of federal prison inmates were drug offenders" while just 7 percent of federal inmates were incarcerated for violent offenses.

Based on the significant variations between the populations of federal and state prisons (which has only grown as federal prisons began taking fewer violent offenders and more drug offenders), the political decision to focus on nonviolent drug offenders makes strategic sense, especially with the threat of constituent backlash due to negative attitudes regarding violent offenders hanging in the air. However, even with federal prisons becoming significant drivers of growth in the prison population, the sheer number of offenders incarcerated at the state level means that federal reforms probably won't be enough to end mass incarceration.

Opponents of targeting violent offenders typically argue that focusing reform efforts on those charged with nonviolent offenses reduces the number of low-level offenders who could succumb to recidivism, but a 2004 BJS fact sheet found that among those leaving prison after serving time for nonviolent offenses "about a third had a history of arrests for violent crimes." If, for the sake of consistency, offenders in this group are excluded from those eligible for reform, that does leave a pool of nonviolent offenders and nonviolent drug offenders that would arguably benefit from many of the reforms under consideration. But such a group would hardly be sizeable enough to produce a radical shift in the number of people incarcerated overall. 

On a broader (but arguably related) note, the focus on nonviolent drug offenders also implies that a clear delineation exists between the types of people who commit violent offenses and the types who don’t. A number of criminal justice experts and advocates dispute that claim, offering up the fact that nonviolent offenders are often arrested for violent crimes prior to their incarceration as evidence. In an interview with Slate, UC Berkeley law professor Jonathan Simon pointed out that "violence is a much more capacious legal category than most people assume."

And while some hardliners argue that certain crimes are "inherently violent", many situations—like a person who commits a nonviolent crime but is charged as a violent offender because they had a weapon in their possession at the time of arrest, or someone charged as a nonviolent offender in exchange for accepting a plea bargain to a violent crime—fall into gray areas. "I think that we are capable of identifying those shades of gray within even violent offenses," Alison Holcomb, director of the ACLU Campaign for Smart Justice, told The Marshall Project in March. "The tricky part is: how do you fashion laws based on the nuances of humanity?"

The question of how to best define offenders is likely one that will be answered another day. Given that the bipartisan coalition of lawmakers aiming to pass criminal justice reform needs to remain together long enough to get sustainable legislation on the books, pushing too aggressively could ruffle feathers, particularly among conservatives who were once tough on crime but are currently open to moderate reforms. And with the majority of violent offenders being in state prisons, finding ways to address that population effectively while maintaining public safety is a very tricky task that may ultimately be out of legislators’ hands. Even so, if the end goal is a reduction in incarceration rates across the board, the exclusion of violent offenders is something that politicians can’t afford to ignore for long.