Here is a good example of an article that I largely agree with for its main point, even though I come from an opposite viewpoint on the underlying policy question. The title above is the first sentence of Benjamin Levin's article in Slate, while the actual headline and subhead is "less pithy," as Doug Berman points out. "It's time to rethink 'violent' crime: How mislabeling misconduct contributes to our bloated criminal justice system. -- The distinction between violent and nonviolent crime is a problematic metric for determining criminal punishment."
As with many other terms, "violent" and "non-violent" are easy enough to distinguish in their core territories (e.g. murder v. tax evasion), but there is a gray zone.
Burglary is generally classified as a "property" crime rather than a violent one. That is where you will find the numbers tallied in the FBI's Uniform Crime Reports. Yet in terms of its effects on victims, burglary of a home is a crime of psychological violence. The emotional reaction to having one's inner sanctum invaded is often far worse than any tangible property loss. Many victims make an explicit analogy to sexual assault in terms of their reaction.
As with many other terms, "violent" and "non-violent" are easy enough to distinguish in their core territories (e.g. murder v. tax evasion), but there is a gray zone.
Burglary is generally classified as a "property" crime rather than a violent one. That is where you will find the numbers tallied in the FBI's Uniform Crime Reports. Yet in terms of its effects on victims, burglary of a home is a crime of psychological violence. The emotional reaction to having one's inner sanctum invaded is often far worse than any tangible property loss. Many victims make an explicit analogy to sexual assault in terms of their reaction.
When legislatures make important sentencing determinations turn on whether the crime is "violent" or "nonviolent," they are tempted to stretch the meanings of words. In the Armed Career Criminal Act, Congress went so far as to declare all burglaries "violent," even burglaries of purely commercial property.
An example of the opposite problem can be found in section 667.5 of the California Penal Code. Defining "violent felony" for the specific purpose of imposing a five-year sentence enhancement for priors, the Legislature produced a seriously underinclusive list. Many felony assaults, for example, are not "violent felonies" by this definition.
Though I agree with Levin on the problem, my policy concern is different. Many measures for so-called "reform," both enacted and proposed, proceed on the assumption that anyone whose offense is classifiable as "nonviolent" is harmless and can be safely released. Not so.
I have noted before the regressive impact of auto theft on people of modest means. I have also noted how high burglary rates can have entire neighborhoods living behind bars. The people who commit these crimes are not harmless. They have a major adverse impact on the people they victimize, spreading out to their families and neighborhoods. The notion currently in vogue that we can safely release with only token punishment anyone convicted of a "nonviolent" offense is a dangerous delusion.
In California, Gov. Jerry Brown's proposed Jailbreak Initiative would allow the parole board to release anyone convicted of a "nonviolent" felony after completing only the base term for the present offense -- effectively wiping out all the sentence enhancements for priors, violent or not, as well as wiping out all the consecutive sentences for multiple offenses, without any limit on the number.
So how does this initiative define the all-important distinction between "violent" and "nonviolent"?
It doesn't. Ponder that.
An example of the opposite problem can be found in section 667.5 of the California Penal Code. Defining "violent felony" for the specific purpose of imposing a five-year sentence enhancement for priors, the Legislature produced a seriously underinclusive list. Many felony assaults, for example, are not "violent felonies" by this definition.
Though I agree with Levin on the problem, my policy concern is different. Many measures for so-called "reform," both enacted and proposed, proceed on the assumption that anyone whose offense is classifiable as "nonviolent" is harmless and can be safely released. Not so.
I have noted before the regressive impact of auto theft on people of modest means. I have also noted how high burglary rates can have entire neighborhoods living behind bars. The people who commit these crimes are not harmless. They have a major adverse impact on the people they victimize, spreading out to their families and neighborhoods. The notion currently in vogue that we can safely release with only token punishment anyone convicted of a "nonviolent" offense is a dangerous delusion.
In California, Gov. Jerry Brown's proposed Jailbreak Initiative would allow the parole board to release anyone convicted of a "nonviolent" felony after completing only the base term for the present offense -- effectively wiping out all the sentence enhancements for priors, violent or not, as well as wiping out all the consecutive sentences for multiple offenses, without any limit on the number.
So how does this initiative define the all-important distinction between "violent" and "nonviolent"?
It doesn't. Ponder that.
The mantra about "nonviolent" offenses is deceptive. As I have pointed out, it's a central premise of sentencing reformers' argument that offenses not involving violence simply aren't as serious as our criminal justice system has made them.
For punishment purposes, however, the correct question is not just whether the offense involves violence; the correct question is whether it involves harm. They want us to think it doesn't. That's not true.
Non-violent offenses do incalculable harm. The trafficking and consumption of hard drugs, for example, is one of the most socially destructive enterprises going on in America, even when if comes without direct violence. There's nothing violent going on when a teenage addict slides the needle in his arm, but if he gets the dosage wrong, he'll be dead by nightfall. There's nothing violent going on when a nine year old is enticed to pose for obscene pictures, but her childhood has been poisoned. There's nothing violent going on when an older couple is swindled out of their life savings, but their hopes to help their grandchildren are gone. The drastically misleading siren song of the "nonviolent" offender will lead us into a swamp where people who can't afford to run for Congress will drown.
I would add that in some circumstances, crimes normally classified as 'property crimes' can also be indicative of a propensity for violence. Specifically, residental burglary committed during the nighttime when typically, the residence is occupied is a crime of violence and a marker for future criminality of far greater harm. Federal code correctly classifies burlgary as a crime of violence.
We are also seeing agitation for the removal of min man requirements against the possession of firearms while committing other crimes, most often drug trafficking, as being "non-violent" if the weapon was not brandished or otherwise used in some fashion, as though the carrying of the firearm was for no other reason than as a fashion statement or something.
JCC
Bill: Do you think lots of actions that do not "involve harm" should be crimes at all? I generally think there is a proper assumption that all offenses that we bother to criminalize at all involve concerns about "harm" and thus the discussion of violence is, in my view, an obvious effort to invoke a notion of serious/significant/lasting harm.
Your examples, Bill, reference offenses that end up causing serious/significant/lasting harm, but we could tweak the fact to make nonviolent crimes look not-so-harmful by discussing Willie Nelson's touring crew passing around a joint (a federal felony drug crime) or high-school teens texting naked pics to each other (a federal felony sex crime) or a doctor inflating his Medicare billings when treating an older couple (a federal felony fraud crime).
Ultimately, as I see it, the modern discourse with a violent/nonviolent narrative is really an effort --- and a largely failed one --- to distinguish serious and not-so-serious crimes. In the old days, the labels felony and misdemeanor were used for this important distinction (and, arguably, Prop 47 was an effort to go back to the use of these labels to make this important distinction).
Ultimately, I concur with any and everyone who fears that simple labels are more likely to obscure than clarify in these settings. And thus I applaud all of those who help other see that simple descriptions in the criminal justice universe are rarely as simple or as descriptive as we might hope.
Doug, did you seriously mean to say that Medicare fraud does not cause serious, significant, and lasting harm?
The cost of health care is one of America's greatest problems. People who aggravate that problem with outright fraud do indeed cause serious harm and should go to the slammer for substantial time, in my opinion.