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Addressing Violent Crime More Effectively

Excessive punishment is the wrong response to rises in homicide rates.

  • David Alan Sklansky
September 27, 2021
Darren Hauck/Getty
View the entire Punitive Excess series

This essay is part of the Bren­nan Center’s series examin­ing the punit­ive excess that has come to define Amer­ica’s crim­inal legal system.

Over the past year and a half, as the United States struggled to address Covid-19, homicides in major Amer­ican cities have increased sharply, and aggrav­ated assaults appear to have increased, too. The numbers have been fright­en­ing: a 30 percent jump in killings in 2020, and a further increase of 16 percent in the first half of 2021. Over an 18-month period, about 33,000 lives were lost to viol­ence in the United States — 8,400 more than would have been killed had homicide rates stayed the same as in 2019.

These numbers pale, of course, beside the more than 600,000 Amer­ican deaths from the coronavirus over the same period. It’s also true that homicide rates across the United States have stayed far below their peaks in the 1980s and early 1990s, and about the same as what they were in the early 2000s. Still, 8,400 killings — let alone 33,000 killings — is a stag­ger­ing toll. The numbers are even more devast­at­ing for Black Amer­ic­ans and Lati­nos, who are dispro­por­tion­ately the victims of lethal viol­ence in the United States. For Black men under 45, homicide is far and away the lead­ing cause of death, account­ing for nearly a third of all fatal­it­ies; for Latino men in the same age group, it is the second lead­ing cause of death.

So, while it’s good that the recent spike in homicides is getting atten­tion, it’s crit­ical not to respond with the kinds of policies that gave us mass incar­cer­a­tion and are help­ing to perpetu­ate it — in partic­u­lar, the aggress­ive use of decades-long, mandat­ory prison sentences for “viol­ent” crimes. There are better ways to respond: approaches that have proven effect­ive in redu­cing extreme viol­ence, without driv­ing prison popu­la­tions even higher.

For the last half-century, Amer­ica’s chief strategy for attack­ing viol­ent crime has been to double down on punish­ment. About half of all people behind bars in the United States are serving time for offenses clas­si­fied as viol­ent, many of them with mandat­ory terms prescribed by “three strikes” laws adop­ted in the 1990s. A third of all Cali­for­nia pris­on­ers, for example, were sentenced under the state’s three strikes law.

These laws are part of a web of punit­ive policies aimed at viol­ent offend­ers, who also are commonly excluded from diver­sion programs, prob­lem-solv­ing courts, eligib­il­ity for early parole or human­it­arian release, oppor­tun­it­ies to expunge or seal convic­tions, and laws allow­ing re-enfran­chise­ment. In Oklahoma, for example, defend­ants charged with viol­ent crimes cannot be diver­ted to drug courts or mental health courts. If they are convicted and sent to prison, they can be paroled only by special order of the governor, and they gener­ally are ineligible to use the state’s expun­ge­ment stat­ute.

People charged with viol­ent crimes are also often denied proced­ural protec­tions provided to other defend­ants. For example, in Nevada the evid­en­tiary priv­ileges for spouses cannot be invoked by defend­ants accused of viol­ent offenses. Even before the pandemic, viol­ent crime was some­thing of a third rail for crim­inal justice reform in the United States, despite the clear, math­em­at­ical fact that there is no way to seri­ously address mass incar­cer­a­tion without radic­ally redu­cing penal­ties for viol­ent offend­ers.

There are three things wrong with these “brute force” responses to viol­ent crime.  The first is that they impose massive harm for negli­gible bene­fit. There’s no evid­ence that draconian sentences have done much to reduce viol­ence in the United States. They keep offend­ers locked up long after they repres­ent any signi­fic­ant threat, and they don’t appre­ciably increase deterrence, which depends more on the certainty of punish­ment than on its sever­ity. It’s true that crime plummeted in the 1990s, when impris­on­ment rates were rising, but impris­on­ment rates also rose during the 1970s and 1980s, without any change in crime rates. And crime rates during the 1990s — partic­u­larly rates of seri­ous viol­ence offenses — dropped just as dramat­ic­ally in Canada as in the United States, and there was no mass incar­cer­a­tion north of the border. Decades of research have failed to show any bene­fi­cial effect of our long prison sentences on public safety. What is certain is that they destroy lives, tear apart famil­ies, hollow out communit­ies, and wreck state budgets. 

The second prob­lem, which exacer­bates the first, is that “viol­ence” is a morally freighted term without clear bound­ar­ies. Call­ing a crime “viol­ent” is a way of placing it beyond the pale, outside the proper sphere of mercy, redemp­tion, or under­stand­ing. Legal defin­i­tions of “viol­ent crime” are highly arbit­rary, reflect­ing the vagar­ies of moral condem­na­tion rather than efforts at descript­ive accur­acy. Burg­lary is widely clas­si­fied as viol­ent, for example, even if no one is hurt or even at home when the crime occurs.  Arkan­sas and Rhode Island even treat larceny as a viol­ent offense. Bodily assaults, on the other hand, gener­ally trig­ger the special penal­ties for viol­ent crimes only when they are “aggrav­ated” by the inflic­tion of “seri­ous” injury or the involve­ment of a “deadly” weapon, factors that typic­ally reflect the subject­ive judg­ment of police and prosec­utors.  Whether a crime qual­i­fies as “viol­ent” can also be heav­ily influ­enced by racial bias and other forms of preju­dice.

The third and final prob­lem with Amer­ica’s heightened penal­ties for viol­ent crime is that they treat viol­ence as over­whelm­ingly a matter of char­ac­ter rather than of circum­stances. It takes remark­ably few epis­odes of viol­ence for someone to be labeled a “career” or “habitual” offender — three “strikes,” or in many places only two. In Cali­for­nia, for example, a single previ­ous convic­tion for a “seri­ous or viol­ent felony” doubles the required prison term for a subsequent offense. In many states, simil­arly, a single convic­tion for a viol­ent felony, some­times only a single arrest, can disqual­ify a defend­ant from diver­sion programs. The assump­tion under­ly­ing modern recidiv­ism enhance­ments, and the eligib­il­ity restric­tions on diver­sion programs, isn’t that a small subset of murders, rapes, and aggrav­ated assaults are carried out by people who commit viol­ent offenses again and again; it’s that anyone who commits two or three viol­ent crimes is likely to be inher­ently viol­ent. Our laws increas­ingly assume that the roots of viol­ence are in the hearts and minds of offend­ers, not in the situ­ations in which they find them­selves. We tend to neglect the power­ful social drivers of viol­ence: from poverty and racism to the wide avail­ab­il­ity of guns in the United States. 

Covid-19 may be in that category, too. It’s not clear exactly why homicides have spiked in the United States during the pandemic. The same thing hasn’t happened in the United King­dom or else­where in Europe, and there are cities in the United States that have bucked the trend as well. Some of the nation­wide increase in killings over the past 18 months may have to do with the disrup­tion of social services, which were already thin­ner here than across the Atlantic. Some may be due to a surge of gun purchases during the pandemic. Some may be trace­able to the erosion of trust between the police and public follow­ing the murder of George Floyd in May 2020. (One factor that can be ruled out, though, is the adop­tion of more leni­ent crim­inal justice policies, includ­ing the early release of some pris­on­ers, in liberal parts of the coun­try. Killings have risen in all parts of the coun­try, just as much in Repub­lican-led cities as in cities with Demo­cratic mayors, and just as much in counties with and without progress­ive prosec­utors.) There’s good reason to think, though, that bring­ing the coronavirus under control should be part of any strategy to confront the rising homicide rate. And, in fact, as the worst days of the pandemic have receded in New York City, homicides have fallen as well.

But if Covid-19 has in fact increased homicides, simplistic gener­al­iz­a­tions about “viol­ent crime” have in turn worsened the public health emer­gency. It was clear from early 2020 that over­crowded pris­ons and jails would help the virus spread rapidly. But govern­ment offi­cials across the coun­try, Demo­crats as well as Repub­lic­ans, have repeatedly balked at releas­ing “viol­ent” offend­ers from pris­ons and jails, even as the death toll from the virus in carceral insti­tu­tions has surpassed 2,700, and even as the defin­i­tion of “viol­ent” remains vague and contin­gent.

Plainly, though, tack­ling Covid-19 can’t be the begin­ning and end of our anti-homicide strategy. Even before the pandemic, far too many people were dying viol­ently in the United States. Fortu­nately, there is grow­ing evid­ence that gun homicides between non-intim­ates — the kind of killings that have risen sharply over the past year and a half — can be reduced dramat­ic­ally by viol­ence reduc­tion programs concen­trated on the relat­ively small number of people, places, and social inter­ac­tions respons­ible for most of the street viol­ence in a given city. These programs are not easy to carry out success­fully, and they are even more diffi­cult to sustain over the long term. Pair­ing focused deterrence with social services and peer-to-peer coun­sel­ing, they require trust and collab­or­a­tion between police and community groups, close analysis of local patterns of viol­ence, restraint on the part of police and prosec­utors, a strong commit­ment to help­ing indi­vidu­als exit cycles of viol­ence, and an insti­tu­tional frame­work that can survive lead­er­ship changes, budget crises, and the inev­it­able calls for tougher approaches when, as in 2020 and 2021, homicide rates begin to climb. 

The most famous of these programs, and a model for many of its successors, was Boston’s Cease­fire initi­at­ive, which dramat­ic­ally reduced youth homicides by inter­rupt­ing cycles of retali­at­ory gang viol­ence. Cease­fire iden­ti­fied a relat­ively small number of groups respons­ible for the bulk of youth shoot­ings in Boston and targeted their members with threats of crim­inal enforce­ment along with offers of economic support and social services if they refrained from gun viol­ence. The program relied on consulta­tion and coordin­a­tion between the police depart­ment, a range of other muni­cipal agen­cies and nonprofit groups, and inner-city clergy. A more recent, success­ful version of the Cease­fire approach, in Oakland, Cali­for­nia, has focused on adult shoot­ers rather than juven­iles (reflect­ing differ­ences between homicide patterns in Oakland and Boston) and has deem­phas­ized the role of the police while expand­ing the role of peer-to-peer coun­sel­ing.

It often takes several tries, stretch­ing over years, before a city finds the right approach, appro­pri­ately tailored to local circum­stances. And even the most success­ful programs, like those in Boston and Oakland, are not pana­ceas: both cities have seen increases in gun viol­ence during the pandemic.

Still, we know these programs can work. Boston’s reduced youth homicides by roughly 50 percent. Those gains began to disap­pear in the early 2000s when the program was discon­tin­ued, then were recovered when the program was restar­ted. The results in Oakland were simil­arly impress­ive: both homicides and nonfatal shoot­ings were cut in half. We also know that there are ways to reduce viol­ent encoun­ters between the police and the public, and ways to curtail prison viol­ence, and ways to help victims of abuse within famil­ies and intim­ate rela­tion­ships protect them­selves from getting killed.

None of this is easy. Simpler and emotion­ally cath­artic responses, like longer prison sentences for people convicted of viol­ent crimes, have an obvi­ous allure. But we have been down that road before. It leads nowhere good. Viol­ence is a hard prob­lem, and it cannot be ignored or simply wished away. But even the most press­ing of crises can be made worse.

David Alan Sklansky is the Stan­ley Morrison Professor of Law and a faculty co-director of the Stan­ford Crim­inal Justice Center at Stan­ford Law School.