Are too many nonviolent offenders sent to prison?

To follow is an excerpt from the CQ Researcher issue "Downsizing Prisons" by Peter Katel on March 11, 2011.

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Much of the argument over incarcerating nonviolent offenders centers on drug offenses, which often don't involve direct physical harm to another person. Neither, generally, do theft, burglary and “white collar” crimes.

Amid the states' budget crises, the debate has taken on new urgency. In New Hampshire, a 2010 “justice reinvestment” law limits sentences for nonviolent crimes to no more than 20 percent above the minimum requirement. [Footnote 17]

And even before the budget crisis, the Kansas legislature passed a law in 2007 designed to cut recidivism, with provisions that reduce prison sentences for good behavior and expand parole and probation programs. As a result, the prison population remained virtually flat instead of increasing by a projected 700 inmates. (Budget cuts to programs designed to help ex-prisoners reintegrate into society have pushed recidivism back up, writes Joan Petersilia, co-director of the Stanford University Criminal Justice Center.) [Footnote 18]

But not everyone agrees that violence should be the sole criterion to determine whether an offender is sent to prison or gets probation.

Moreover, the proliferation of drug courts — 2,038 as of July 2009, the most recent figure available — and similar programs for the mentally ill (about 175 courts nationwide) and veterans (about 50) has expanded the options to jail or prison. [Footnote 19]

These alternative programs have tended to make state prison inmates precisely the sorts of dangerous offenders for whom prison was designed, some prosecution-oriented advocates argue.

Scheidegger of the Criminal Justice Legal Foundation argues that statistics on the offenses for which state inmates were imprisoned may be misleading. An offender may have physically harmed someone in committing a drug crime, for instance, but be sentenced on the drug offense alone after a deal with prosecutors, he says.

“Ninety percent of prisoners go in under plea bargains,” says Scheidegger. “Those who did not have a violent offense as the offense of commitment are not necessarily nonviolent. Dropping the strongest charge is usually part of a plea bargain.” And nonviolent offenders may be incarcerated because they have a record of violence, he says.

But Indiana public defender Landis says that in his experience, plea bargains haven't followed the pattern Scheidegger laid out. “We don't break down too many crimes that are violent to a nonviolent offense,” says Landis. A plea bargain might, for instance, lower a charge of rape with serious bodily injury to rape plain and simple, he says. But rape by definition is a violent act. “You would never,” he says, “call that pleading out to a nonviolent crime.”

An offender's record of past offenses inevitably influences the sentencing process, Landis acknowledges. But “you ought to do the time for the crime,” he says, referring to a defendant's current case, “not for the crime you already did the time for.”

While the philosophical argument about who belongs behind bars is complex, an even more complicated question is whether defendants whose crimes indisputably didn't involve violence should be sent to prison.

In Missouri, Supreme Court Chief Justice William Ray Price Jr. has declared that his state imprisons too many nonviolent offenders. But Stanley Cox, Missouri House Judiciary Committee chairman, disagrees. “There is a class of lawbreakers who by their own intention and design have become such a threat — not a violent threat, but a threat — to society that it is better to incarcerate them,” says Cox.

Cox, a Sedalia Republican and former state prosecutor, adds, “It is false to believe that prisons, certainly in this state, are filled with people who end up there because they committed one nonviolent offense. That is absolutely not true. The people who fill our prisons, including these nonviolent offenders, are people who just never took the breaks they were offered. They offended, were placed on probation, and reoffended multiple times.”

But Philadelphia District Attorney R. Seth Williams told the Commerce, Justice, Science and Related Agencies Subcommittee on Feb. 11 that “people who commit the most crimes over and over are people who commit low-level property crimes. We don't need to send so many people who are nonviolent — through mandatory sentences — to prison.”

Williams also argued that high levels of recidivism by nonviolent offenders show evidence of system failure as much as individual shortcomings. “Where did society fail that person?” he asked. “What can we do to teach that person to be a barber or a cobbler or an auto mechanic or some real job?” Once they're trained, he said, “We won't see them again.”

The Issues

* Can states afford to maintain their current prison populations?
* Are too many nonviolent offenders sent to prison?
* Can diversion programs substitute for imprisonment?

For more information on the CQ Researcher report on "Downsizing Prisons" [subscription required] or purchase the PDF.

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Footnotes

[17] Clement, et al., op. cit., pp. 65-66.

[18] Ibid., pp. 60-61. See also Joan Petersilia, “Beyond the Prison Bubble,” Wilson Quarterly, winter 2011, www.wilsonquarterly.com/article.cfm?AID=1774.

[19] “Drug Courts — Facts and Figures,” National Criminal Justice Reference Guide, updated Sept. 1, 2010, www.ncjrs.gov/spotlight/drug_courts/facts.html; Emma Schwartz, “Mental Health Courts,” U.S. News & World Report, Feb. 7, 2008, www.usnews.com/news/national/articles/2008/02/07/mental-health-courts; “Justice for Vets,” National Association of Drug Court Professionals, updated Feb. 14, 2011, www.nadcp.org/JusticeForVets. For background, see Marcia Clemmitt, “Combating Addiction,” CQ Researcher, Feb. 9, 2007, pp. 121-144.