To cut back on the US incarceration rate, expert says focus on life paths, not sentencing

President Barack Obama is on a campaign to overhaul the US criminal justice system, pledging to directly address and reduce a system of mass incarceration. He recently commuted the sentences of 46 federal prisoners, the largest number of commutations of any president since Lyndon Johnson.

But these 46 prisoners, all nonviolent drug offenders, are not characteristic of most prison inmates, both at the state and federal level. Rather, over 50 percent are imprisoned for violent crimes, such as aggravated assault, robbery, rape and murder. They are the forgotten, or ignored, group in the recent calls for criminal justice reform, which has focused largely on low-level, nonviolent drug offenses.

In addition to making up the majority of inmates, violent offenders also serve longer terms. They are the real driving force behind US incarceration.

“When Obama said that prison growth has been driven by nonviolent offenders serving for very long periods of time,” says John Pfaff, a professor at Fordham Law School who focuses on penal reform, “that was wrong on two fronts. It’s locking up violent offenders, and even then, not for that long. But the long sentences tend to be for violent, and not drug, cases.”

While the reforms for nonviolent offenses are a start, they simply do not address the majority of crimes. For truly significant criminal justice reform — “to get us as far as we need to be” — Pfaff believes that we must take a long look at violent offenses.   

One of the main problems is the discrepancy between the way in which we conceive of violent crimes outside of the legal system, and how they are legally defined.

“Violence is a legal term of art, in a way,” Pfaff notes. “When we say violence, we think serious physical harm; that’s sort of the popular view of it. Guns, murder, rape, aggravated assault. But in many states, many things that are classified as official violent crime, don’t necessarily always result in physical harm.”

Burglary, for example, can be charged as a violent crime, even if there is no one in the house at the time. Nonetheless, more than half of inmates are charged with traditionally aggressive harmful acts, such as aggravated assault and murder.  

Legal reforms are certainly the end goal, but the larger challenge is changing the stigma that faces violent offenders. “It’s a static concept: you are a violent person,” Pfaff says. The problem, though, is that people are not static, particularly when it comes to violence.

“And that just doesn’t seem to match what the data shows. People age into being violent and people age out of being violent. Someone who is violent when they’re 18, will be less violent when they’re 30, and even less violent when they’re 40 … So the sense that you commit a violent crime when you’re 18, let’s just give up and lock you up permanently — It’s a very naive view of what psychologists and sociologists have shown human behavior actually moves over the course of a person’s life.”

This strict classification is not benign. Rather, it further perpetuates a cycle of crime when violent offenders are released, and subsequently impeded from fully engaging in society that could lead people down a different path.

“One of the ways that people tend to desist from crime are through things like getting a job, getting married, having children — these are shown to lead people out of crime.”

A youth spent in prison, then, leads to crime later down the road. Helping violent offenders when released, in addition to looking at the sentencing, is where reforms for mass incarceration need to focus, Pfaff believes.

“Our discussion currently doesn’t even begin to engage with this idea that part of the way out of crime is to not lock you up, but to try to get your life on a different path.”

This story first aired as an interview on PRI's The Takeaway, a public radio program that invites you to be part of the American conversation.