DEFINING VIOLENCE:
Reducing Incarceration by Rethinking America’s
Approach to Violence
Justice Policy Institute │ August 2016

TABLE OF CONTENTS
Introduction.……………………………………………………………..1

Part I: A moment in time: the offense reflects singular events,
not a person’s capacity to change…….……………………….…..…..6
 Homicide: Low recidivism rates……………………………..6

Justice Policy Institute (JPI)
is dedicated to reducing the
use of incarceration and the
justice system by
promoting fair and
effective policies.
JPI envisions a society with
safe, equitable and healthy
communities; just and
effective solutions to social
problems; and the use of
incarceration as a last report

1012 14th Street, NW
Suite 600
Washington, DC 20005
Tell (202) 558-7974

Part II: How violent offenses are categorized differs from place-toplace………………………………………………..……………...…...….9
 Assault……………………...……………………..….……........9
 Burglary………………………………………………………..12

Part III: Context matters in the way a violent or nonviolent offense
is treated by the justice system…………….……...............................14
 Sex Offense: Context matters around penalties, but less
around evidence of effectiveness……………………….….14
 Weapons: Penalties vary based on co-occurring
behavior………………………………………………………..16

Part IV: The cost of incarcerating people for violent offenses is
large, but an even bigger reinvestment is needed in communities
where violence is a challenge….…...........…….….………….…..….20

Part V: Efforts to develop justice approaches that can have an
impact on people convicted of violent offense……………..…...…23

Conclusion: Strategies to reduce the use of incarceration that are
less focused on the offense…………………………………………...30

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JUSTICE POLICY INSTITUTE

INTRODUCTION
“Can we, in fact, significantly reduce the prison population if we’re only focusing on non-violent
offenses where part of the reason that in some countries — in Europe, for example — they have a
lower incarceration rate because they also don’t sentence violent offenders for such long periods
of time. I think it’s smart for us to start the debate around non-violent drug offenders. You are
right that that’s not going to suddenly halve our incarceration rate, but if we get that — if we do
that right … then that becomes the foundation upon which the public has confidence in
potentially taking a future step and looking at sentencing changes down the road.”
—President Barack Obama.1
“I want to go some place that is not safe ground yet because it is not commonly talked about.
Every piece of legislation we have mentioned, [the] REDEEM act is all about nonviolent crimes,
the mandatory minimums, everything nonviolent, nonviolent. I just want to go here to just give
you a foreshadow of the future of what we must do as a society. We have labeled so many things
violent crimes in such a huge way that we have got to start having an honest conversation about
what really we want to be as a society… I am just saying that we have to reexamine the system
as a whole.”
—Senator
Jersey),
Criminal

Cory

Booker

(D-New

Bipartisan

Summit

on

Justice

Reform,

in

Conversation with

Newt Gingrich,

Moderated by Donna Brazile, March 2,
2015.
When President Barack Obama made his

Whether this focus has helped reduce the use of

historic visit to a federal prison last year, he

incarceration remains in question.

underlined the growing policy consensus that
the

nation

incarceration.

needs

to

reduce

the

use

of

But whether it was at an

advocacy summit in Washington around a
pledge to cut prison and jail populations by 50
percent, raised by a coalition of conservative and
liberal organizations focusing on criminal justice
reform, or echoed by the candidates for
president, the justice reform discourse has been
framed as reducing the incarceration of people
convicted of nonviolent offenses rather than
addressing the full spectrum of the prison
population.

Has the focus on
people convicted of
nonviolent offenses
helped reduce the
use of
incarceration?

DEFINING VIOLENCE

2

The latest survey of prison populations showed

people in jail, either as pretrial defendants or

that the nation experienced the second-largest

people sentenced to jail, rose by 1.8 percent.5 The

decline in prison populations in 35 years, with

United States still has the highest incarceration

about half the states and the Federal Bureau of

rate in the world as well as the largest prison

Prisons showing reductions in the number of

and jail populations in the world.

people in prison.
As was underscored by The Marshall Project last
But this decline needs to be put into context: Of

year, and echoed by academics and thought

these 23 jurisdictions, including the federal

leaders,6 “simple math shows why violent

system, 14 states and the Federal Bureau of

offenders would have to be part of any serious

Prisons saw their prison population decline by 2

attempt to halve the number of prisoners.”7 Out

percent,2 or less, with the overall number of people

of the 1.35 million people in state prisons, the

held in a correctional facility dropping by only 1

Bureau of Justice Statistics reports that 718,000

percent (15,400 people out of a total incarcerated

people were serving time for a violent offense.8

population of 1,561,500 people under the custody of a

Accordingly, about half the people in state

prison system)

prisons would not be covered under current

3

strategies that are tailored to exclude people
Underlining the reform challenge playing out in

with convictions for violent offenses.

corrections where a modest reduction in prison
populations has occurred simultaneously with
multi-billion dollar jail expansion4 proposals, the
latest national surveys show that the number of

Between 2013 and 2014, the number of people in prison
fell by -1.0%, and the number of people in jail rose 1.8%
Nearly two thirds
of the places with a
prisoner
population decline
had a reduction of 2
percent or less.

Source: Prisoners in 2014 (2015); Jail Inmates at Midyear 2014 (2015). Bureau of Justice
Statistics.

Source: Prisoners in 2014 (2015); Jail Inmates at Midyear 2014 (2015). Bureau
of Justice Statistics.

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JUSTICE POLICY INSTITUTE

There is no consensus on what the opposite of
“mass incarceration” would look like.

To

answer the question of how many fewer people
would need to be locked up to see significant
change and to lower its incarceration rate to
what European nations currently experience, the

To reach the European standard, 1.2
million fewer people would be
incarcerated – a figure that far exceeds
the number of people incarcerated for
nonviolent offenses nationally.

U.S. would have to reduce its incarcerated
population by 80 percent,9 or about 1.2 million

In Defining violence:

fewer people in prison and jails. It has been

rethinking America’s approach to violence, the

nearly 60 years since the U.S. has experienced

Justice Policy Institute (JPI) explores how

comparable incarceration rates to Europe

and

something is defined as a violent or nonviolent

although we have witnessed a dramatic increase

crime, how that classification affects how the

in our prison population, it has not made us

justice system treats a person, and how all that

safer.11

relates to the use of incarceration. The report

10

Statutes abstractly categorize behavior as violent
or nonviolent. How might these categorizations,
along with the workings of the justice system,

reducing incarceration by

summarizes the relationship of offenses to the
use of incarceration and how that varies by:


combine to limit reform efforts designed to

How violent offenses are categorized
from place to place:

reduce our reliance on incarceration? Does

An act may be

defined as a violent crime in one place

statistical reporting obscure critical facts that

and as a nonviolent crime somewhere

change agents, policymakers, and the public

else. The law in a particular jurisdiction

need to consider when designing policies to

may define something as a nonviolent

significantly reduce the use of incarceration?

crime, but a corrections department may
define the same behavior differently.
For example, although burglary rarely

Incarceration Rates in the United States and
Europe, per 100,000 people

involves person-to-person behavior, it is
defined as a violent crime in some
places and can lead to a long prison

700

sentence;

600



500

400
300

How context matters in the way a
violent or nonviolent offense is treated

623

by the justice system:

Sometimes a

behavior that would not normally be a

200
100

defined as a

150

result in a long prison term can mean a

0
United States

much longer term of imprisonment
when a gun is involved; and

Europe

Source: How to cut the prison population by 50 percent. The
Marshall Project (2015)

“crime of violence” or



The

disconnection

between

the

evidence of what works to make us
safer and our current policies: People

DEFINING VIOLENCE
convicted of some of the most serious

if there was a hint that someone convicted of a

offenses – such as homicide or sex

violent crime might benefit from the change.

offenses

lowest

When someone has been the victim of a violent

recidivism rates, but still end up serving
long prison terms.

crime, they may want to see that person locked

–

can

have

the

These three factors overlap with each other in a
way that brings into sharp relief the fact that the
nation will fail to make meaningful reductions
in the use of incarceration unless we revamp our
approach to violent crime and how the justice
system treats people convicted of a violent
crime. How a behavior is treated by the courts
can occur in isolation from the research that
demonstrates someone’s ability to change, and
brings

4

competing

values

around

what

is

proportionate and just response to behavior.
This is a complicated political and systems
reform issue. When politicians support bills that
focus solely on nonviolent crimes, they can point
to polling and voter-enacted ballot initiatives
that show that the public supports their agenda.
In some places, policymakers have vocally
rejected justice reform bills and ballot initiatives

up. Scholars have noted that if the U.S. wants to
treat the root causes of violence in the
communities most affected by serious crime, it
will require a significant investment of public
resources – more than what we could currently
“reinvest” from downsizing and closing prisons
and jail.
To help unpack some of the complicated issues
at play, the Justice Policy Institute (JPI) analyzes
how

behaviors

are

categorized

under

sometimes-arbitrary offense categories, explores
the larger context that exists when something is
classified as a violent or nonviolent offense, and
shows the consequences for the justice system
and the use of incarceration. This report also
looks at how the debate over justice approaches
to

violent

crime,

nonviolent

crime,

and

incarceration is playing out in legislatures and
how justice reform proposals are debated.12

How many people are incarcerated for violent offenses?
Since most people in prison in America are under the jurisdiction of the states, this analysis
focuses more attention on people in state prison, and in a few select cases, federal prison.
There are approximately 718,000 people in state prisons whose most serious offense is a violent
offense: For national corrections reporting programs, the crimes that are included in violent crime
are, homicide, rape (including sexual assault), robbery and aggravated assault (including simple
assault), and other violent offenses if they lead to someone’s custody for more than one year. In
2014, people convicted of robbery, rape or sexual assault, murder, and aggravated/simple assault
accounted for approximately one out of two people in state prison (185,000, 169,000, 169,000,
135,000 respectively).
There are also the 15,000 people in federal prison whose most serious offense is a violent offense,
and 140,000-plus people are who are awaiting trial in jail—people who are legally presumed
innocent—who were charged with a violent crime. There are also 42,000-plus people who were
convicted of a violent offense.
Source: How many people are locked up in the United States?. (Northampton, MA: Prison Policy Initiative (2016). Unless
otherwise noted with a citation, all statistics that relate to the number of people incarcerated by offense were sourced to the
Prison Policy Initiative

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JUSTICE POLICY INSTITUTE

New York and California: What do violent offenses, violent felony offenses, and
“nonviolent, nonserious, and nonsexual” offenses mean in the context of justice
reform?
Not all violent offenses are classified as felonies and not all felonies are violent crimes. Each state has the
ability to determine what is and is not violent crime, and whether it will be classified as a felony, a
misdemeanor offense, and the consequences a conviction for these offenses will carry. When this statebased reality is parsed into a national discussion about justice reform, the local subtleties can get ‘lost in
translation.’
In New York—as is the case in other states—some violent crimes are considered misdemeanors. New
York also delineates between violent and nonviolent felonies. In New York, a person is not charged with a
violent felony13 per se. Each of New York’s five felony classes are broken down into violent and
nonviolent offenses.14 One can be charged with a Class B felony, like assault in the first degree, which is
considered a violent felony. There are also a series of Class A and Class B misdemeanors that include
behaviors like assault or sexual abuse.
In California, how something is defined as violent or nonviolent runs into statutory categories like
“violent felony offenses:” This category includes homicide, rape, any robbery, assault with the intent to
commit a specified felony, and a series of 19 other behaviors. 15
An entirely different narrative around how the system should treat various behaviors advanced around
Governor Brown’s Public Safety Realignment—the state’s response to federal court orders to reduce
prison overcrowding— expanded the debate around what some people think should be considered
serious or violent crime as opposed to what is a violent crime.
Realignment changed California sentencing laws by shifting thousands of people from serving their
sentences in state prisons to serving them in county jails: To make this politically palatable, Governor
Brown promised that only people convicted of nonviolent offenses, and a larger group of people
colloquially

called

“non,

non,

nons”

could

be

sentenced

to

jail,

instead

of

prisons:

“Non, non, nons” refers to people whose current conviction was for neither a violent felony offense, 16
serious felony,17 or sex offense.18 An additional 60 offenses—many of which would not be defined as a
violent offense in another place – were ultimately excluded from the realignment framework.19
Under California Governor Jerry Brown’s Public Safety and Rehabilitation Act of 2016 – a ballot initiative
being voted on in California in November – changes are being considered that would seek to reduce the
justice involvement of some people convicted of violent crimes. If enacted by voters in November, the
ballot initiative would change the state’s juvenile transfer laws, so that a judge (not a prosecutor) would
ultimately make the decision about whether a youth would end up in the adult system regardless of their
offense. The ballot initiative would also memorialize the state’s response to federal court orders to reduce
prison overcrowding by allowing people convicted of violent crimes to earn time off their sentence when
they participate in education and rehabilitative programs.

DEFINING VIOLENCE

6

Part I:
A MOMENT IN TIME: THE OFFENSE
REFLECTS A SINGULAR EVENT, NOT A
PERSON’S CAPACITY TO CHANGE
Statistics cited by the media, policymakers, and

state laws, and other information learned from

the public on who is in prison for what offense

correctional authorities.

reflect the most serious offense that led to
someone’s current incarceration at a moment in

What this federal accounting of correctional

time. Alone, these figures do not tell much about

statistics does not tell anyone—not the public,

a person’s ability to change or likelihood of

not policymakers, not the media—is whether

recidivism.

someone will engage in the same behavior, or
another destructive behavior, in the future.

The leading national repository that generates
information on incarcerated populations is the
U.S. Justice Department’s Bureau of Justice
Statistics (BJS). In 2014, of the 1.5 million people

Homicide: Low
Recidivism Rates

incarcerated in prisons, there were about 718,100
people whose most serious current conviction

People whose most serious crime was a

was a violent offense, as reported to BJS by a

homicide can face the longest sentences, but

state corrections department.20 For BJS, the

ironically they show the lowest recidivism rates.

crimes that are included in violent crime are

New information has emerged over the past few

homicide,

assault),

years that underscores that even among the

robbery, aggravated assault (including simple

169,000 people in state prison for homicide, the

assault), and other violent offenses if they lead

offense

to someone’s custody for more than one year.

designated to be the most serious offense—is not

People convicted of robbery, rape or sexual

the primary determinant of whether someone

assault, murder, and aggravated/simple assault

will face challenges when returning to the

accounted for approximately one out of two

community.

rape

(including

sexual

people in state prison.
When BJS reports the offense of a person who is
incarcerated, the only thing that is reported is
the most serious offense that person was
convicted of leading to their incarceration in that
instance, under the jurisdiction of a state or
federal authority, for more than one year of
custody. BJS updates how it defines offenses as
“violent” or “nonviolent” based on changes in



of

conviction—the

instant

offense

Maryland: nine out of 10 people
released for homicide did not return to
prison.
Due to a flaw in jury
instructions, the Maryland Court of
Appeals in Unger v. State ruled that
people convicted in those criminal cases
were entitled to new trials. Because of
the challenges of bringing new trials
based on offenses that occurred decades
ago, the cases—most of which involve

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JUSTICE POLICY INSTITUTE
people age 60 or older and most of
whom were convicted for homicide—
were settled in a way that resulted in the
release of most of the people
affected by the Unger decision.
A
private foundation provides resources
to support enhanced reentry services for
people leaving prison under the Unger
decision, with a special focus on
addressing their housing needs. As of
March 2016, of the more than 100 people
who have been released under the
Unger decision, none has been convicted
of a new felony offense.21


Michigan: nine out of 10 people
paroled for homicide did not return to
prison. Michigan increased the capacity
of the parole board so that a larger pool
of people who had been denied parole
could have their cases reviewed. Of all
the people once convicted of homicide
who were paroled from 2007 through
the first quarter of 2010, more than 99
percent did not return to prison within
three years with a new sentence for a
similar offense.22



New York: nine out of 10 people
released for homicide did not return to
prison. According to the Department
of
Corrections
and
Community
Supervision Board of Parole, there were
987 people convicted of A-I violent
felony offenses who were granted
parole between 2009 and 2012 (most of
whom were serving a homicide related
offense). Of those who were granted
parole, only two—or less than one
percent—were re-imprisoned for a new
felony conviction.23 Over a longer
timeline, of the 871 A-1 violent felony
offenders who were conditionally
released from their life sentences in
2008, 2009, 2010, and 2011, only five
were
returned
on
new
felony
24
convictions.

Recidivism rates are important, but even they
have their limitations particularly as they relate
to how to help people who face challenges after
justice system involvement, regardless of
whether they were convicted of violent or
nonviolent offenses.

Are people leaving prison less likely to
return to prison than has been
suggested?
In a paper published in Crime & Delinquency in
2014, researchers who routinely study data
collected by BJS suggested that the national
discourse around recidivism as it relates to
offenses may obscure the success most people
have when they leave prison because it is solely
focused on a moment in time—the event—that
is studied. In contrast to recidivism figures that
show that half of people who leave prison will
return within three years on a new offense or for
a violation of their supervision, the researchers
show that roughly two out of every three people
who enter and exit prison will never return to
prison.25 The principal difference in the way the
two figures are represented is the lack of
individualized attention to the person’s risk to
reoffend that comes with a more in-depth study
of the person’s individual strengths or
challenges. The way recidivism is reported does
not necessarily account for someone’s assessed
risk to engage in new behavior—something that
can change over time, change with someone’s
age, or change based on whether we provide
someone with appropriate support.

People convicted of drug offenses can
face more challenges with recidivism
than people convicted of violent
offenses.
People catalogued by justice system agencies as
being convicted for nonviolent offenses may
have much higher rates of recidivism than
people convicted of violent offenses.

DEFINING VIOLENCE
If a person convicted of a drug offense 26 or a
property offense engages in behavior because of
an addiction, they may have a higher recidivism
rate because of relapse and continued activity in
pursuit of sustaining drug use than someone
convicted of a violent crime.27 While only 2 to 3
percent of released prisoners in New York State
who had been incarcerated for violent offenses
were returned to prison for committing a new
felony offense, a drug offense, or a technical
parole violation—not a new violent crime—was
the main reason these people were returned to
prison.28
In summary, policymakers and the public need
to interpret corrections and law enforcement
statistics on offenses with caution; these figures
only tell someone what happened at a point in
time, and they do not explain much about
someone’s capacity to change.

8

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JUSTICE POLICY INSTITUTE

Part II:
HOW VIOLENT OFFENSES ARE
CATEGORIZED DIFFERS FROM PLACE TO
PLACE
An act may be defined as a violent crime in one
place and as a nonviolent crime somewhere else.
The law may define something as a nonviolent
crime, but a corrections department may define
the same behavior differently.

Maryland: 2nd Degree Assault
Many states have three or four categories of
assault so that the justice system can choose
from multiple options when reacting to a
particular event.

Assault

In New York, for example,

Assault in the 3rd Degree is a Class A
misdemeanor.

The Bureau of Justice Statistics includes both
aggravated assault and simple assault in its

Maryland has two categories of assault—first

accounting of violent crimes.

and

In 2014, there

were 135,000 people in state prisons in

for

assault.

degree.

Because

Maryland

recognizes common-law crimes, no statute
defines their elements. But Maryland case law
fully

Assault

second

can

be

defined

by

articulates

them.

As

recognized

in

correctional

Maryland common law, an assault is an

authorities as a crime of violence, and as with a

attempted battery or an intentional placing of a

variety of crimes, assault is defined differently

victim

from one state to another. Some states define

imminent battery.

assault as the intentional use of force or violence

“unlawful beating of another,” and includes

against another, such as punching a person or

“any unlawful force used against a person of

striking the victim with an object. In other states,

another, no matter how slight.”30 The common

assault need not involve actual physical contact

law offense of battery thus embraces a wide

and is defined as an attempt to commit a

range of conduct, including “kissing without

physical attack or as intentional acts that cause a

consent, touching or tapping, jostling, and

person to feel afraid of impending violence. In

throwing water upon another.”31

in

reasonable
29

apprehension

of

an

A battery is defined as the

some places, domestic violence offenses are
prosecuted under simple assault, which can

As part of a review of what is driving growth in

carry a lesser penalty than aggravated assault

Maryland’s

but is defined as a violent crime.

Reinvestment

prison

population,

the

Justice

Council

(JRCC)

showed that, in 2014, Assault in the 2

Degree

Coordinating

nd

Sometimes it does not matter whether an assault

was the second most common offense that

is “simple” or “aggravated” or whether it is a

resulted in someone being returned to prison for

felony or a misdemeanor to result in significant

a new offense while on parole. The data also

consequences when the behavior occurs.

showed that people convicted of 2nd degree

DEFINING VIOLENCE

10

assault were less likely to be released close to

APO statute extends to probation and parole

their parole date than people convicted of 1 st

staff.

degree assault (the more serious crime).

32

The APO statute covers a wide range of
In 2015, Maryland’s JRCC contemplated adding

behaviors and has been critiqued because of

3rd and 4th degree categories of assault that

how, in the context of an interaction with law

would have carried different penalties. The

enforcement,

administrative parole process that the JRCC

needlessly escalate and result in someone’s

enacted

deeper justice system involvement.

–

something

that

allows

people

something

that

occurs

can

approaching their parole date to automatically
be processed, and not necessarily have to face

The Washington, D.C., APO statute on the books

automatic parole hearings—excluded people

in 2015 was very broad, including in its

convicted of 2

language “whoever without justifiable and

nd

Degree assault. The proposed

inclusion of Assault in the 2nd Degree under a

excusable

cause,

assaults,

resists,

opposes,

reformed administrative parole process was

impedes, intimidates, or interferes with a law

criticized by the Maryland Crime Victims

enforcement officer…” while the officer is

Resource Center for carving out an avenue for

performing their duties.36 This translates into

release of people engaged in violent behaviors.33

behaviors being charged as APO that have
included wiggling in handcuffs, yelling at a

As the Maryland Justice Reinvestment Act was

police officer, or removing an officer’s hand

being debated in the spring of 2016, the issue of

from one’s person when they are not being

what constitutes a violent or nonviolent crime

arrested can result in a charge. In contrast, in

became a significant point of contention; some

another state—in another context—a person can

legislators argued that someone selling drugs

only be charged with APO if they cause serious

really cannot be considered ‘nonviolent’ because

physical injury to a police officer with the intent

of the drug trade’s impact on the community.34

to disrupt their duties.37

Washington, D.C.: Assaulting a police
officer

The application of the APO statute to minor
incidents has broad implications. A five-month
investigation by WAMU 88.5 and American

In Washington, D.C., Assaulting a Police Officer

University looked at nearly 2,000 cases of APO

(APO) is an offense that can be a misdemeanor

between 2012 and 2014 and found that the cases

or a felony. The offense can result in a sentence

clog up the courts, rarely result in injuries to

of six months in jail, but if it co-occurs with

officers and residents, can result in arrest

another offense or causes significant bodily

records and convictions that carry lifelong

injury to a law enforcement official, it can result

consequences, and disproportionately affect the

in a 10-year penalty.35 Similar to the Assault in

city’s African American residents.38

the 2

nd

Degree statute in Maryland, the District’s

11

JUSTICE POLICY INSTITUTE

Key findings from the investigation included:





About one in four people charged with APO needed medical attention, while one in five
police officers involved in these situations needed medical attention;
Compared with cities of comparable size, Washington, D.C., uses the APO charge three times
more often;
Prosecutors declined to press charges in more than 40 percent of the arrests for assaulting an
officer;
90 percent of those charged with APO were African American even though only 50 percent of
the city’s population is black;

90% of persons arrested for APO are Black, even though
only 50% of the city's population is Black

10%
Black
Other

90%

Source: Center for Investigative Reporting (2015).



Nearly two thirds of the people charged with APO were not charged with any other
offense.39

Nearly two thirds of the people charged with APO
are not charged with anything else

APO Charge Only

34%
66%

APO Charge and Additional
Charge(s)

Source: Center for Investigative Reporting (2015).

DEFINING VIOLENCE

12

Washington, D.C.’s Chief of Police, Cathy
Lanier, has said that the APO statute is too
broad and should be revised, as it caused
“tensions between police and residents.” 40

In

2016, the D.C. Council passed legislation that
created two separate offenses for “assault on a
police officer” and “resisting arrest”: the change
narrowly tailored the charge of APO, and
created a charge that can be filed when an
individual intentionally resists a lawful arrest.
Both charges can result in a jury trial.

The

change to D.C.’s APO law will become law in
September, 2016.41

Burglary
Source: Is Burglary a Crime of Violence (New York City: John

“Simple burglaries very seldom involve violence, and

Jay College of Criminal Justice, 2015).

when violence does indeed occur, separate criminal
charges for those acts are added onto the burglary

Recent research using data collected by the

charges”

Federal Bureau of Investigations Uniform Crime
Reports (UCR) and the National Criminalization

– Richard F. Culp et al., Is

Victims Survey (NCVS) shows that, overall,

Burglary a Crime of Violence?

burglaries do not include person-to-person

An Analysis of National Data

contact. The NCVS shows that 7.6 percent of all

1998-2007 (New York John Jay

burglaries between 1998 and 2007 involved

College

burglary and a violent crime.43 Of the burglaries

of

Criminal

Justice,

reported to NCVS during this time, only 2.7

2015).

percent resulted in actual physical injury. The
People who are incarcerated for burglary are

National Incident Based Reporting System,

reported by national correctional authorities as

which provides supplemental expanded data to

being in prison for a nonviolent property offense;

the UCR, found that 0.9 percent of all burglaries

about 142,000 people are in state prisons for

co-occurred with a violent crime.44

burglary.

While correctional statistics report

burglary as a nonviolent offense, most federal
and state statutes define burglary as a violent
offense

in

some

contexts,

whether

as

California’s Three Strikes Law and
burglary

a

standalone offense or when it occurs with other

The changes to California’s Three Strikes Law–

behaviors.

Forty-seven states and the federal

synonymous with America’s embrace of “tough

government use an array of methods to

on crime” sounding laws—demonstrate the

determine if a burglary is catalogued as violent

challenge of navigating how offenses are

or nonviolent.

characterized and treated from place to place.

42

13

JUSTICE POLICY INSTITUTE

To get around the challenges of having to garner

person convicted of an offense listed in the

a two-thirds majority vote in the California

Virginia code face [sic] major impediments to

legislature,

modify

incarceration, and they often result in serving

California’s Three Strikes Law through a voter

much longer prison terms. Being categorized as

ballot initiative enacted in 2012.

reformers

moved

to

The change

a “violent offender” creates significant barriers

meant that the third offense that could lead

to rehabilitative, self-improvement and reentry

someone

programs.”49

to

serve

45

25-years-to-life-in-prison

could only be what is defined in California as
“serious or violent.” As of March 10, 2016, 2,188

As the Virginia legislative session drew to a

people who had been sentenced under Three

close in 2016, no changes to the statute

Strikes, and whose third strike was not serious

governing burglary were enacted. As a result,

or violent, had been released.

The Stanford

barriers remain in place that prevent people

Law Three Strikes Project reported that, as of

convicted of violent crimes from participating in

November 2014, among the 1,613 people who

drug court and other alternative interventions.

46

had been released under the changes to the law
resulting from the ballot, the recidivism rate was
1.3 percent.

47

United States Sentencing Commission
recommends amendments to burglary
as a “crime of violence.”

The ballot initiative changing California’s Three
Strikes Law was an important step forward, but

In 2016, the U.S. Sentencing Commission offered

in

an

California,

burglary

of

an

unoccupied

amendment that would
treated

by

that can lead someone to serve a 25-to-life

amendment deletes burglary of a dwelling from

sentence.

Another ballot initiative was offered

the list of enumerated offenses under “crimes of

in 2015 to remove burglary of an unoccupied

violence”: “In implementing this change, the

dwelling from having a role under the Three

Commission

Strikes Law, but it failed to garner financial

offenses rarely result in physical violence, (2)

support or enough signatures to be placed on

“burglary of a dwelling” is rarely the instant

the 2016 ballot.

offense of conviction or the determinative

considered

federal

that

(1)

law.

how

burglary

48

is

redefine

dwelling can count toward one of the strikes

The

burglary

predicate for purposes of triggering higher

Virginia’s recommended review of
burglary’s classification.

penalties under the career offender guideline,
and (3) historically, career offenders have rarely
been rearrested for a burglary offense after

The Commonwealth’s Commission on Parole

release.”50

Review recommended in 2015 that the state
reevaluate whether burglary should be classified

Unless the Congress rejects the change, the U.S.

as a violent crime under the statute, including if

Sentencing Commission’s amendment will take

it occurs in association with another offense:

effect November 1st, 2016.

“The Commission reviewed evidence that a

DEFINING VIOLENCE

14

Part III:
CONTEXT MATTERS IN THE WAY A
VIOLENT OR NONVIOLENT OFFENSE IS
TREATED BY THE JUSTICE SYSTEM
When a weapon is involved in violent crime, the
person who engaged in the behavior can face a
much longer prison term. But such sentencing
enhancements are divorced from the larger
context that the U.S. is a country with more
guns than people. Because of the charges
usually brought in reaction to these behaviors,
people often plead guilty and receive long
sentences (because of mandatory minimum or
sentencing enhancements), thus, placing a great
deal of power in the hands of prosecutors. For
example, there are gradients of behavior that fall
under the category of “sex offenses.” But the
approach to incarceration and community
control of people convicted of sex offenses are
detached from whether registries work, and
whether they cause more harm than good.

In 2014, there were 169,000 people in state
prisons for sex offenses, which include rape and
sexual assault, and they were categorized as
violent offenses.52
Because the larger context of discourse around
what works in curbing sex offending behavior is
divorced from the science, the behavior carries
significant consequences that extend beyond an
actual prison sentence.
Policymaking around how to respond to sex
offenses

has

been

obscured

by

public

perception. According to a study published in
the Analyses of Social Issues and Public Policy, “it
was found that community members believe

Sex offenses: context
matters around
penalties, but less
around evidence of
effectiveness

that sex offenders have very high recidivism

“Studies have indicated that sex offenders have
among the lowest recidivism rates… Additionally,
some of the most dangerous sexual crimes, those
involving rape and murder, account for less than
three percent of sexual offenses perpetrated in the
United States.”

offenses, with 73 percent saying they would

—Kate Hynes, “The Cost of
Fear: An Analysis of Sex
Offender
Registration,
Community Notification, and
Civil Commitment Laws in the
United States and the United
Kingdom.”51

offense compared with people convicted of

rates, view sex offenders as a homogeneous
group with regard to risk, and are skeptical
about the benefits of sex offender treatment.”53
One research study done in Florida showed that
67 percent of respondents said they thought
prison was an effective strategy to reduce sexual
“support these policies even if there is no scientific
evidence showing that they reduce sexual abuse.”54
People leaving prison for sex offenses are
considerably less likely to be re-arrested for any
other offenses, and their re-arrest rate within the
first three years of discharge is still relatively
low at 5.3 percent.55 Data from Michigan show
that 99 percent of people released from prison

15

JUSTICE POLICY INSTITUTE

through parole for a sex offesnse did not return
to prison for a sex offense within three years.56

employment and residence, physical assaults,

A sex offense can carry significant consequences

While registries and community notifications

that may compromise community safety. Many

carry significant consequences for people placed

of these consequences extend beyond an actual

on them, it isn’t clear that these policies work to

prison sentence.

change behavior. A 2008 National Institute of

and, in a few cases, death by vigilantes. 59

Justice study examined recidivism among sex
After someone convicted of a sex offense

offenders before and after the law requiring

completes their prison term, they can end up

community notification and concluded that

being on a sex offense registry, and have that

“Megan’s Law showed no demonstrable effect

information publicized through a community

in reducing sexual re-offenses.”60 According to

notification process. Recent figures suggest that

the study, there is little evidence to date that

about 850,000 people convicted of sexual

supports the claim that Megan’s Law61 (and

offenses were registered across the United

other registration and notification laws) are

States. When someone is listed on a registry, it

effective in reducing new first-time sex offenses

can take decades to be removed from it.

The

or sexual reoffenses,62 except for a slight

proliferation of registries and notification laws

reduction in reoffending by sex offenders who

has proven to be a barrier to re-entry for persons

were acquainted with their victims. Evidence is

convicted of a sexual offense. Most notable are

mixed as to whether community notification

cases

reduces recidivism.63

57

phone

of

58

harassment including threatening

calls,

property

damage,

loss

of

Violent and Sex Offenses Still on the Books
Some state statutes contain offenses that are outdated or unnecessary. When it comes to violent
offenses, a few states outlaw dueling, an act considered antiquated and not relevant to today’s times.
For sex offenses, many states consider adultery, fornication, and other sexual acts to be illegal.
DUELING
Massachusetts, Mississippi, Nevada, Oklahoma, Rhode Island, South Carolina
ADULTERY
Florida, Idaho, Kansas, Maryland, Massachusetts, Minnesota, Mississippi, New York, Oklahoma,
Rhode Island, South Carolina, Utah, Virginia, Wisconsin
FORNICATION
Idaho, Massachusetts, Minnesota, Mississippi, South Carolina, Utah Virginia

DEFINING VIOLENCE

Weapons: penalties vary
based on co-occurring
behavior

16

According to a study by the Bureau of Justice
Statistics, among prisoners carrying a firearm
during their crime, 40 percent of State inmates
and 56 percent of Federal inmates received a
sentence enhancement because of a firearm.68

The Bureau of Justice Statistics says that if one’s
most serious offense at commitment is simply a
weapons offense, that person is serving time on
a nonviolent public order offense. There were

Federal sentencing reform bills stoke a
debate over what is violent and in
what context.

approximately 52,000 people in state prisons
whose most serious offense was something

In 2016, there were nearly

a half-dozen

relating to a weapon.

bipartisan

reform

federal

sentencing

bills

moving through Congress that sought to reduce
The federal prison system had 33,000 people in

sentence lengths for people convicted of certain

prison for weapons, explosives, and arson in

types of crimes. The same debates playing out

2015.64 There are more people in prison for

in statehouses over what constitutes a violent

weapons offense than are in prison for all

crime and in what context are also echoing

offenses in all but 13 states.

through the halls of Congress.

65

Weapons statutes can sometimes be vague. Most

Changes to one federal bill, The Sentencing

states do not have “deadly weapon” statutes

Reform and Corrections Act (2015), were

that identify what a deadly weapon is; instead,

prompted when a group of senators laid out

states employ a broad definition of deadly

their critique of the legislation for benefiting

weapon.66

“violent offenders” associated with the federal
mandatory minimums. The issue that has been

While a weapons offense in one context may be

raised is whether someone whose current

defined as a nonviolent offense, if the behavior

offense is a federal drug offense but who has a

occurs along with something else, it may carry

crime of violence conviction in their past would

much more severe penalties regardless of how

benefit from the bill.

the offense is defined.

If someone has prior

AR) countered, “these sentencing reductions

convictions or is convicted of behavior that

will apply not to first-time offenders but to

occurs in a particular location (for example, near

repeat offenders – felons who have made the

a school), the penalties may be enhanced, and

conscious choice to commit crimes over and

under state or federal law, weapons offenses can

over again. And they will not apply just to so-

lead to longer prison terms. Particularly when

called “nonviolent offenders,” but thousands of

someone has a weapon, the context in which

violent felons and armed career criminals who

charges are brought, how sentencing laws work,

have used firearms in the course of their drug

or the adversarial court process can determine

felonies or crimes of violence.”69

whether

something that

is defined

as a

nonviolent or violent crime carries a long
penalty.

Senator Tom Cotton (R-

The critique led the sponsor of The Sentencing

67

Reform and Corrections Act (2015) to amend the
legislation to allow fewer people convicted of

17

JUSTICE POLICY INSTITUTE

violent crimes to be eligible to apply for release.

incarcerated or to face a longer sentence than

As the lead sponsor of the legislation, Senator

would be associated with the underlying felony.

Charles Grassley (R-IA), explained: "The authors

In 2016, the Michigan House Criminal Justice

fine-tuned some provisions to ensure violent

Committee passed a bill that would have

criminals do not benefit from reduced sentence

eliminated the mandatory flat sentence and

opportunities established by the bill. It now

given judge’s discretion to set an indeterminate

expressly excludes offenders convicted of any

term. The legislation is still under consideration.

serious violent felony from retroactive early

Context matters for penalties, but not
for gun availability.

release.”70
The Sentencing Reform and Corrections Act is
still being debated.

While context matters around whether carrying
a weapon affects someone’s penalty, gun

Michigan’s felony firearm law

availability is not part of the larger context
around sentencing and imprisonment.

In Michigan, possessing a weapon is not a
violent crime, and it is not categorized by the

Four out of 10 people in state prison, and more

Michigan Department of Corrections as violent

than half the people in federal prison, received a

if the only crime someone is in prison for is the
possession of a weapon.

sentencing enhancement because a firearm was
associated

with the

weapons

playing

instant offense.
a

significant

With

role

in

But under Michigan’s felony firearm law, if you

lengthening someone’s prison term and also

possess a firearm while committing another

playing a role in lethal violence, how does the

felony, you can be subject to a mandatory two-

larger context of gun availability figure into the

year minimum prison sentence, even if the other

picture?

felony would only result in probation. By way
of example, if you had a rifle in the back of your

The last decade saw a sizeable increase in the

truck while you engaged in another felony that

number of guns produced in America: in the fall

carried

mandatory

of 2015, the U.S. Department of Justice’s Bureau

minimum prison term would apply. In 2013,

of Alcohol, Tobacco and Firearms reported that

there were 1,275 prisoners whose longest

7.5 million more guns were produced in the

minimum sentence was for a felony firearm
conviction.

United States in 2013 (10,884,792) than in 2003

The felony firearm law has been critiqued for a

Not including guns that are sold illegally, the

number of reasons: Judges have raised concerns

Congressional Research Service estimates that

that it ties their hands: if they believe that

there are more than 300 million guns in the

something less than a mandatory two-year

United States.72 Including estimates that include

consecutive sentence is called for, they cannot

guns

impose such a sentence. The law also has been

approximately 357 million guns in the U.S. as of

critiqued for giving prosecutors undue leverage

2013, which would mean that America is a

in plea negotiations and for causing people who

country with more guns than residents.

no

prison

term,

the

would not otherwise be prison-bound to be

(3,308,404)—a growth of nearly 230 percent.71

possessed

illegally,

there

are

DEFINING VIOLENCE

18

As organizations that focus on the gun industry

they normally would not commit if guns were

have

not available.”74

highlighted,

firearms

escaped

safety

regulation in the 1970s when the U.S. Congress
created the major product safety agencies—a

Youth behavioral surveys show that some kind

unique exemption that means that when a

of assaultive behavior or forcible theft can

company makes a teddy bear, it is subject to

happen more often than might be perceived

consumer and health standards that do not

through adolescence, raising questions about

apply to gun manufacturers.

how assault should be treated.75 Access to a gun

73

can mean a shift from something that can be
The question of whether the mass availability of

resolved without confinement to a prison term

guns plays a role in enhancing safety or

for robbery and aggravated assault. About 35

reducing crime has become part of the polarized

percent of people serving time for robbery in

debate over gun control in the U.S.

state prisons and 40 percent in the federal prison

New

system had a gun at the time of the offense.76

international studies shed some light on the U.S.
exceptionalism.

A look at the relationship

between gun availability and crime in cross-

The enforcement of laws that cover offenses can

national samples of cities showed that gun

have implications for all communities, but it

availability influenced rates of assault, gun

particularly affects communities of color in the

assaults, robbery, and gun robberies – a set of

context

behaviors

enhancements.

that

are

widely

subject

to

of

sentencing

and

sentencing

enhancements and long prison terms, and that
are all categorized as violent crimes. The author

Despite the fact that most gun owners in

of the study notes that “for the cities sampled

American are white, most people serving time

here, increasing gun availability provides an

for

incentive for city residents to commit crime that

American or Hispanic, particularly in the federal

weapon

related

offenses

are

African

system.

41% of of
households
thatthat
havehave
a firearm
are white
41 percent
households
firearms
are white
50
40
30
20

41%

10

20%

19%

Hispanic

African American

0
White

Source: Pew Research Center, “The Demographics and Politics of Gun-owning Households,” July 2014. According to Pew
Research Center, 41% of households that have a firearm are non-Hispanic white, 19% are African American, and 20% are
Hispanic, http://www.pewresearch.org/fact-tank/2014/07/15/the-demographics-and-politics-of-gun-owning-households/.
United States Sentencing Commission, “Incarceration in the Federal Bureau of Prisons,” Sourcebook 2014,
http://www.ussc.gov/research-and-publications/annual-reports-sourcebooks/2014/sourcebook-2014.
According to the United States Sentencing Commission, 26.9% of persons incarcerated for a firearms offence are white, 23%
are Hispanic, and 48.6% are African American.

19

JUSTICE POLICY INSTITUTE

Households in America where a gun is owned
90000

Total
households
of Households
number of
Total Number

80000
70000
60000
50000

Total number of households

40000
Total number of gun-owning households

30000
20000
10000
0
White

Hispanic

African American

Percent of People Imprisoned by Race for
of people imprisoned by race for
Percent
Offenses
Firearm
offenses
firearm

Race of households

Federal prison population for firearm
offenses by race and ethnicity
80
70

60
50

40
30
20
10
0
White

Hispanic and African American
Race of Respondents

Source: United States Sentencing Commission, “Incarceration in the Federal Bureau of Prisons,” Sourcebook
2014, http://www.ussc.gov/research-and-publications/annual-reports-sourcebooks/2014/sourcebook-2014. Figures
on incarceration relating to gun offenses in state prison show that about half (48% or 24,400 prisoners) of the
people in prison for gun offenses were African American, with state prisons holding an additional 13,900
Hispanic and 11,200 white prisoners sentenced for weapons crimes (Prisoners in 2014).

DEFINING VIOLENCE

20

PART IV:
THE COST OF INCARCERATING PEOPLE
FOR VIOLENT OFFENSES IS LARGE, BUT
AN EVEN BIGGER REINVESTMENT IS
NEEDED IN COMMUNITIES WHERE
VIOLENCE IS A CHALLENGE
The unfolding justice reform discourse has

Conference

focused on the fact that taxpayers spend

reported

of

upwards of $80 billion a year to imprison and

approximately $24 billion incarcerating people

jail more than 2 million people and keep another

convicted of something other than a nonviolent

5 million people under some form of parole or

offense.78

that

State
in

Legislatures

2013

(NCSL)

taxpayers

spent

probation supervision.77 A significant focus of
the debate has been on strategies to reduce the

NCSL’s

take

on

what

taxpayers

pay

to

costs associated with incarcerating people for

incarcerate people for violent crimes represents

nonviolent offenses and reserving prison space

just a small portion of what our current justice

for others.

system policies may cost us.79

This country already spends billions of dollars

Other collateral costs exist that researchers are

incarcerating people for violent offenses.

only beginning to quantify and that speak to the
need to advance a broader approach to justice

Excluding county and city spending on jails and

reform than simply looking at the offense.

the federal corrections budget—the National

The 10 states that spend the most incarcerating people
convicted of a violent offense spend $12 billion.
Texas
$2,639,568,534.00
California
$2,265,075,114.00
Florida
$1,712,188,922.00
Georgia
$873,567,692.00
New York
$872,128,536.00
Ohio
$857,486,688.00
Pennsylvania
$839,246,950.00
Illinois
$803,549,624.00
Michigan
$721,674,162.00
Arizona
$668,675,678.00
Source: National Conference of State Legislation (2014)

21

JUSTICE POLICY INSTITUTE


Cost to expending tax dollars with
limited public safety outcomes: In
cases of incarceration for a homicide or
a sex offense, data show that there are
people in these offense categories who
could have some of the lowest
recidivism
rates.
Taxpayers
are
spending money to imprison hundreds
of thousands of people included in
various offense categories that is not
improving public safety or helping
engage someone in behavior change.



Cost of lifetime lost revenue for
government and communities: There is
a
growing
literature—particularly
focusing on young people and
juveniles—that has attempted to
quantify what the larger, long-term cost
is to a community and a society when
the community relies on incarceration.
In Sticker Shock: Calculating the Full Price
Tag For Youth Incarceration, JPI estimated
that the nation loses $8 to $21 billion
dollars every year incarcerating young
people when you include lost future
earnings of confined youth, lost future
government tax revenue, additional
Medicare and Medicaid spending that
could have been avoided if someone
was able to access the job market, and
other costs due solely to the
incarceration of youth.
In 2016, the
Brennan Center for Justice is launching
a project to better quantify the longer
term costs of adult incarceration.



Cost to children and communities
when parents are incarcerated: As more
and more information has emerged on
the impact of incarceration, it has
helped fuel pressure to challenge laws,
policies, and practices that have led to
2.3 million people being incarcerated
and has shown the much larger costs
our
current
policies
have
on
communities. Over 5 million children

have had a parent incarcerated at some
point in their lives.80 When a child has a
parent in prison, it has lifelong
consequences for them and for the entire
community: A recent study shows that
the traumatic experience of having a
parent in prison has the same
magnitude as abuse, domestic violence
and divorce. When fathers are
incarcerated, family income can drop 22
percent, a parent in prison when they
were children experienced a 22 percent
drop in family income, and 65 percent
of families with a parent in prison could
not meet their basic needs (e.g. food,
utilities, rent).81


Concentrated costs to communities
of color: People of color are
disproportionately incarcerated; they
are also disproportionately incarcerated
for violent and nonviolent offenses
alike. In 2014, whites accounted for 31
percent of people in prison for violent
offenses, whereas 40 percent were
African American, and 23 percent were
Hispanic.82 While there is some evidence
that in some crime categories violent
behaviors come to the attention of law
enforcement
more
frequently
in
communities of color than among other
groups, these studies do not control for
the impact of higher unemployment,
lower incomes, and the collateral impact
of higher levels of justice involvement
that also could contribute to people of
color being more likely to engage in
some behaviors and be arrested,
convicted, and imprisoned.83

Simply reallocating funds from the criminal
justice system to meet human needs before
crime occurs gives short shrift to the scale of the
investment needed to truly address what drives
people’s engagement in crime, including violent
crime.

DEFINING VIOLENCE
Scholars, including those from the consensus
report of the National Academy of Sciences, The
Growth of Incarceration in the United States, have
said that the kind of investment needed by the
communities

most

incarceration

to

affected
address

by

mass

longstanding

disinvestment in the jobs, schooling, and
treatment infrastructures that drive violent
crime exceeds what is currently being spent on
corrections.
As Marie Gottschalk, a member of the National
Academy of Sciences Task Force on Mass
Incarceration wrote, “if the United States is
serious about engineering deep and sustained
reductions in urban violence, then addressing
the country’s high levels of inequality and
concentrated poverty must become a top
priority, not a public policy afterthought.”84
The need to invest in the communities most
affected by violence and crime with something
larger than a $24 or $80 billion correctional price
tag speaks to the need to expand the definition
of “reinvestment” being offered by various
justice reform agents.

22

23

JUSTICE POLICY INSTITUTE

PART V:
EFFORTS TO DEVELOP JUSTICE REFROM
APPROACHES THAT CAN HAVE AN
IMPACT ON PEOPLE CONVICTED OF
VIOLENT OFFENSES
Justice reform approaches that move beyond the

person on a negative trajectory, including one

offense are being offered, but the challenges that

that could lead to a violent offense.

proponents of such changes are having in
mounting policy reform proposals underline

While prison and jail populations have been on

how much work will need to happen to see

the rise, the number of young people confined

significant

and placed out of the home fell by about 50

and

sustained

reductions

in

incarceration.

percent between 1999 and 2013.

During that

time, the number of young people confined or
JPI offers a review of how policymakers are

placed out of the home for a violent offense also

seeking

change

declined by 43 percent. As juvenile confinement

proposals that rely less on how behavior is

fell, so did juvenile crime rates, showing that the

categorized.

reduction in the use of confinement has not

to

broaden

justice

policy

adversely affected public safety.

Reductions in juvenile confinement
transcend offense categories.
The juvenile justice system functions differently
and under different presumptions so that when
a young person is convicted of a violent offense
and remains under juvenile court jurisdiction,

Total number of youth confined or placed
out of the home for a violent offense
120000
100000
80000

the system has more tools to serve that young
person in the community.

The juvenile system

69, 334
60000
Total number of youth confined
or placed-out-of-home

is more likely to give the corrections department
the ability to decide where a young person is

40000

34,226

best served, regardless of the offense, and it
grants corrections administrators more authority
to manage a young person’s length of stay. The
juvenile system also emphasizes diversion more

20000

34,885
19,922

Total number of youth
convicted of committing a
violent crime

0
2001

Year

2013

than the adult system does, which offers the
opportunity for the courts to keep young people

Source: Census of Residential Placement, Office of Juvenile

out of the justice system entirely and to avoid

Justice and Delinquency Prevention, 2001 and 2013 (2016).

the system exposure that can put a young

DEFINING VIOLENCE

24

The changes in the juvenile justice system are

the chance to get a new sentence with the

good news for young people, but the trend

possibility of parole. Under Senate Bill 260,

should not signal that the problem of youth

people who received extremely long sentences

incarceration has been fully addressed. Much

before age 18—sentenced consecutively to terms

more needs to be done in juvenile justice policy

that would lead to their incarceration for

reform.

decades—have an opportunity for a parole
hearing, and the parole board has to consider

Some laws on the books still require the

their youthfulness at the time of the offense, that

confinement of young people even when the

the person may have been less responsible for

data might show that they could be safely

their actions than adults, and the person’s

served in the community. While many laws that

propensity to change through maturity. Under

transfer young people to the adult court have

Senate Bill 261, Senate Bill 260 was extended to

been changed, and fewer young people are

people whose offense occurred before age 23.

being transferred to the adult system overall, in
many states a young person convicted of a

There are some people who, by the nature of

violent crime can still end up in an adult jail or

their offense, will not benefit under Senate Bills

prison.

9,85 260,86 and 261.

The juvenile “deincarceration trend”

This reflects legislators’

also has been lopsided by offense: the decline

attempts to navigate the way California has

has largely been driven by fewer young people

layered

being confined and placed out of the home for

mandatory minimums through voter-enacted

nonviolent offenses, making up 70 percent of the

ballot initiatives, and the high threshold that

decline in young people removed from their

two-thirds87 of the legislature must support

homes and locked up since 2001.

changes to voter-initiated laws.

sentencing

enhancements

and

The change

does mean that people convicted of a crime that

Juvenile life without parole case law
expands offenses considered for
release.

relates to a homicide, robbery, or an offense
with a gun enhancement have an opportunity
for a parole hearing at the fifteenth, twentieth, or
twenty-fifth year of their sentence. These three

Since 2005, Supreme Court rulings that have

laws created pathways for people to show that

banned the use of capital punishment for

they should be paroled, and as a result, people

juveniles—and retroactively banned the use of

convicted of serious and violent offenses have

mandatory life without parole—have catalyzed

been paroled.

changes aimed at reducing incarceration for

released under the Youth Offender Parole, most

young people convicted of violent crimes. On a

of them people who were convicted of a violent

state-by-state basis, these rulings have created

offense, and as many as 16,000 more remain

pathways for lawmakers, attorneys, and young

eligible.88

people to reduce the sentence length for people
who have been convicted of a violent crime.

Under HB 4210, which passed in 2014, the state

About 300 people have been

of West Virginia eliminated life without parole
California’s Senate Bill 9 allows a person who

sentences for young people prospectively (going

was under 18 years old at the time of a crime

forward) and retroactively (youth convicted

and sentenced to life without parole to submit a

prior to the law change). Under the law,

request to have a new sentencing hearing and

everyone who was sentenced in adult criminal

25

JUSTICE POLICY INSTITUTE

court for any crime committed as a young

make

person must become eligible for release on

someone’s capacity to change and less reliant on

parole after no more than 15 years. The effect of

the offense that led them to be incarcerated.

this

change

consecutive

neutralizes
sentencing,

as

the
well

impact
as

parole

decisions

more

reliant

on

of

harsh

In New York, members of the Assembly and

mandatory minimums for young people. During

Senate introduced legislation that has been

the parole hearing, the board must also now

offered in previous years and dubbed by some

consider how young people are different from

as the “SAFER Act.” New York has seen low

adult offenders, their diminished culpability,

parole approval rates in recent years, with the

and other age-related mitigating factors. The law

only justification for parole denial recorded as

also requires judges on the “front-end” to

“the nature of the crime,” which excludes a

consider these differences before sentencing a

variety of other factors that could reasonably be

young person who has been transferred to adult

considered in the decision about someone’s

court.

propensity to change or the likelihood that they
might reoffend upon release.

Assembly Bill

Under AB 267, which passed in 2015, the state of

02930 (and Senate Bill 01728) would add a series

Nevada eliminated life without parole sentences

of systemic changes to the parole process and

for all children prospectively, and nearly all

revised criteria that would “provide for the

children retroactively. Under the new law,

release of inmates who meet release criteria” in

children convicted of non-homicide offenses

ways

must receive parole eligibility after no more

consideration beyond the “nature of the crime.”

than 15 years; children convicted of offenses

Governor Cuomo indicated a need for parole

where a person was killed receive parole

reform in his State of the State this year.89

that

provide

other

avenues

for

eligibility after no more than 20 years. Similar to
West Virginia, the effect of the new law in

In California, pressure to reduce the prison

Nevada has been to neutralize the impact of

population under a court order forced the state

stacked and consecutive sentencing, sentencing

to establish an Elderly Parole Program. Under

enhancements, and harsh mandatory minimums

the existing program, people over age 60 who

for children convicted of serious offenses.

have been incarcerated for 25 years can be
referred to Board of Parole Hearings, with

Seventeen states now ban life without parole for

certain sentencing limitations.90 As of February

all young people convicted of offenses, and an

2016, the Board had held 1,187 hearings

additional five states ban it for nearly all young

resulting in 317 grants of parole, 781 denials,

people.

and 89 stipulations of unsuitability.91 Senate Bill
1310,

Changes offered to parole laws and
practices can transcend the offense.

introduced

in

2016,

would

have

established the Elderly Parole Program as a
matter of law and would have expanded the
universe of people who might benefit from it

A number of legislative proposals were being

(while still excluding some categories of offenses

debated in the first half of 2016 that would seek

from consideration).92 SB 1310 was withdrawn

to change the parole process so that more people

from legislative consideration when the entire

who might have had a violent crime in their

Elderly Parole Program was put under the

distant past would be eligible for release, and to

DEFINING VIOLENCE
microscope as the result of crime victims raising
concerns about the process.93

26

to all people in prison who qualify “regardless
of offense.”97

In Michigan, substantial bipartisan support

Both presumptive parole and the medical parole

(including from the Republican governor ) has

bills passed the Michigan House and are

been building in 2015 and 2016 for changes to

pending for consideration in the Michigan
Senate.

94

the state’s parole process. HB 4138, introduced
by a Republican legislator and supported by the
Republican governor, establishes a presumption
of parole for people who score a high
probability of parole on the parole guidelines

Changes to sentencing enhancements
and mandatory minimums chip away
at offenses.

and limits the parole system’s denials to a set of
criteria that focuses the process more on a

In 2016, legislatures considered proposals to

person’s risk of future violence and less on the

change laws, policies, and practices that would

offense. Presumptive parole will not apply to

provide some relief for people who received

parole-eligible

lifers but that is based on the

sentencing enhancements, long sentences due to

sentence type, not the crime. The changes would

the consecutive nature of multiple convictions,

seek to ease the challenge of thousands of

or mandatory minimums.

people being incarcerated beyond their first

changes marked the first repeal of mandatory

parole eligibility date, despite scoring a high

minimums that some states had seen.

probability

of

parole

on

the

In some cases, the

Michigan

Department of Corrections’ parole guidelines,

Florida policymakers have faced challenges

an indicator that someone presents a very low

enacting any kind of meaningful sentencing

risk to public safety.

reform, regardless of whether the primary focus

people

who

have

There are about 1,900
minimum

has been on people whose most serious offense

sentences and have been denied release despite

served

their

at conviction was a violent crime or a nonviolent

having high probability of parole scores.

crime, and thus leading the prison population to

95

The

Michigan Department of Corrections estimates

keep ticking upwards.

that a shift towards presumptive parole would

incarceration in Florida is the state’s 10-20-Lifer

save 3,200 prison beds and save $75 million over
a five year period.96

statute. Under the law, someone who uses a

A primary driver of

firearm while committing a forcible felony can
be sentenced to the law's maximum, and the

Also in Michigan, the parole board had a prior

mandatory

authority to grant medical parole to people who

consecutive to any additional sentence a person

were physically or mentally incapacitated, but

must serve.

the

sentencing”

mandatory minimum prison sentence under the

legislation that requires every person to serve

10-20-Lifer Law for aggravated assault with a

every day of his or her minimum sentence in a

firearm. In 2016, there were 235 people serving

secure facility ended the practice.

Under a

a prison term under the 10-20-Lifer Law whose

medical parole package (5078-81) that passed

primary offense was aggravated assault, or 2.3

the Michigan House Appropriations Committee

percent of the 10-20-Lifer population in Florida

in February 2016, new provisions would apply

prisons. Building on previous changes made to

enactment

of

“truth

in

sentences

must

be

imposed

This statute included a 3-year

the law in earlier legislative sessions, SB 228

27

JUSTICE POLICY INSTITUTE

deletes aggravated assault from the list of
convictions that carry a minimum term of
imprisonment.

The legislation was approved

Policy approaches seek to address the
root causes of violence or reduce the
harm of violence.

by Florida’s Republican Senate and signed by
Governor Rick Scott in February 2016, and it

A U.S. Justice Department study showed that,

marked the first mandatory minimum that

while young men of all races between the ages

Florida had repealed in 20 years. Various other

of 16 and 24 experience higher rates of violence

violent offenses98 are still subject to the 10-20-

than other age groups (including assault and

Lifer Law, and the breadth of support for the

robbery), over an 11-year study period, young

change among law enforcement and gun rights

African American men were more likely to be

organizations was around the impact of the law

robbed and more likely to be victimized by

for people who display or fire a gun in self

violence.

defense.99

overrepresented among homicide victims.100

In 2015, Colorado, through the passage of HB15-

What is true nationally is also true locally. In

1303, legislators amended their state statutes to

Washington, D.C., where just under half the

remove a five-year mandatory minimum for

residents are African American, more than eight

someone convicted of second degree assault on

out of 10 homicide victims in the city were

a

African American and a third of those were

peace

officer,

firefighter,

or

emergency

management team member when committed

Young men of color are also

between the ages of 18 and 24.101

with the intent of prevention of a lawful duty.
Under the new law, the mandatory minimum no

The choices that policymakers can make around

longer applies unless serious bodily injury

dealing with violent crime were brought into

occurs.

The change aligned the offense with

sharp relief this year in Washington, D.C., and

other classes for felonies, allowing a judge to

neighboring cities. An analysis by the Brennan

take into consideration the circumstances of the

Center for Justice showed the homicide rate

case.

from

nationally in 2015 was projected to be about 15

Colorado prosecutors and law enforcement, the

percent higher than last year in the 30 largest

changes to second degree assault became the

cities,

first mandatory minimum repealed in Colorado.

Washington, D.C.—accounted for almost 50

Despite

significant

opposition

but

just

two

cities—Baltimore

and

percent of the national increase in homicides.
In 2016, the Colorado Governor signed into law
legislation that removed the requirement that

Digging even deeper, incidents of lethal violence

consecutive sentences be imposed if someone is

in just three police districts accounted for most

convicted of two or more separate crimes of

of the growth in homicides in Washington D.C.,

violence arising from the same incident and one

and they occurred in parts of the city where a

of such crimes is aggravated robbery, second

larger proportion of residents are African

degree assault, or escape. SB 16-051 returned

American, where unemployment is higher, and

discretion to the court to impose either a

where

concurrent

employment,

or

consecutive

sentence.

Amendments to the bill limited the crimes
where the courts could impose either a
concurrent or consecutive sentence.

greater

challenges

school

residents’ income.

success,

exist
and

around
raising

DEFINING VIOLENCE

28

In the wake of the first significant increase in

annual trainings to help police avoid bias-based

homicides seen in a decade, local policymakers

profiling.

in Washington D.C. were offered two starkly
different approaches to violence prevention.

Along with the unanimous passage of the NEAR
Act in Washington, D.C., neighboring Baltimore,

One legislative proposal offered by Washington

Maryland, is also seeking to build on its public

D.C.’s Mayor in 2016 would have expanded the

health approach to violence prevention.

authority of officers to conduct warrantless
searches in homes where people on parole,

When someone in Baltimore has been shot,

probation, and supervised release lived, and it

stabbed, or severely beaten, they can be brought

would have lengthened sentences or increased

to a designated city hospital that has a Shock

the ability to detain people pretrial. While the

Trauma Center; there a violence intervention

increase in lethal violence was not associated

counselor assesses the person’s needs and

with the public transportation system or parks,

challenges, identifies other options besides

the proposal would have enhanced penalties for

retaliation

several dozen offenses if committed against a

individuals, and steers affected individuals

public transit passenger or worker, or against

toward services.

to

resolve

conflicts

between

any person while located in or near a public
park.

What is common to Baltimore’s Shock Trauma
Center and what is being imagined in the

While the more punitive legislative proposal did

Washington, D.C., NEAR Act is having someone

not move forward, the Washington D.C. City

facilitate preventing an escalation of conflict by

Council in the spring unanimously endorsed a

working in the community (or hospital) to help

public health approach to violence prevention

the parties stop the cycle of retaliation, to

that was focused on responses outside the

mediate conflicts, and to connect people to

justice system. The Neighborhood Engagement

resources to address the harm of the violence

Achieves Results Amendment Act of 2016 (The

outside the justice system.

NEAR Act) would establish offices that will
coordinate city agencies’ responses to violent

Along with the public health approach being

crime, and places clinicians in emergency rooms

offered in these cities, other approaches also

to respond to the needs of victims and to help

exist to address violent crime that do not rely on

prevent the escalation of violence. The NEAR

incarceration and seek to address harm.

Act also calls on the city to identify teenagers
and young adults at the highest risk for

In New York City, Common Justice (a project of

committing or being a victim of violent crime to

the Vera Institute of Justice) approaches violent

participate in a stipend-based program to assist

crime in a manner that transforms the lives of

them in life planning, provide trauma-informed

victims and fosters racial equity without relying

therapy when appropriate, and offer mentorship

on incarceration. Common Justice serves as the

services. The NEAR Act also provides law

first alternative-to-incarceration and

enforcement with community-policing training,

service program in the United States that focuses

requires the collection of data around “stop and

on violent felonies in the adult court, almost

frisk” and police use of force, and provides

exclusively serving young adults of color. If—

victim-

and only if—the harmed parties consent,

29

JUSTICE POLICY INSTITUTE

Common Justice diverts cases such as assault
and robbery into a dialogue process designed to
recognize the harm done, identify the needs and
interests

of

those

harmed,

and

develop

appropriate responses to hold the responsible
party accountable. Under the Common Justice
approach, program staff rigorously monitor
responsible

parties’

compliance

with

agreements—which may include restitution,
community service, and commitments to attend
school

and

work—and

supervise

their

completion of the 15-month intensive violence
intervention program.102

In 2015, Common

Justice staff launched a national learning
collaborative to support people working with
young men of color harmed by crime nationally.

DEFINING VIOLENCE

30

CONCLUSION:
STRATEGIES TO REDUCE THE USE OF
INCARCERATION THAT ARE LESS
FOCUSED ON THE OFFENSE
While this is a complicated issue, the data show

resource other than prison or jail when

that the only way to bring down prison and jail

serious public safety challenges arise. The

populations to a level that looks like the

challenge for policymakers is not to end up

opposite of “mass incarceration” will involve

in the position of offering multi-pronged

changes to laws, policies, and practices that

approaches where only one of the prongs is

change how society responds to violent crime.

resourced. As the field has learned from

Such

by

efforts to reduce gang crime, efforts to

acknowledging how people convicted of violent

prevent, intervene, and suppress gang

and nonviolent offenses alike are treated by the

activity have seen a lopsided investment in

system.

suppression.103 If prison and jails are to be

policy

changes

must

begin

downsized, prevention, intervention, and
As a first step, JPI recommends scrutinizing all

public

laws, policies, and practices that affect the

prevention need to be resourced at scale,

length of time that someone is in prison or jail

along the lines of a “Marshall Plan” for

based

conviction.

America’s distressed communities. In other

A person’s propensity for change, an assessment

words, we need more than a simple

of their risk to engage in other behavior (and an

reallocation of the approximately $80 billion

assessment of what they would need to change

that the nation spends on corrections. As

their behavior), and the most effective ways to

dollars are targeted to these approaches,

address the harm caused by crime need to be

they should be targeted to the communities

elevated as issues in the discourse.

that face the biggest crime and incarceration

solely

on

the

person’s

health

approaches

to

violence

challenges, should support approaches that
Specifically, JPI offers the following approaches

largely occur outside the formal justice

to help the country develop sounder justice

system, and should be stable from year to

reform proposals that may more meaningfully

year. A revamped approach to prevention,

reduce the use of incarceration across offense

intervention, and public health approaches

categories.

to violence prevention also will target more
dollars to communities of color, where crime

1) Increase

prevention,

intervention,

and

public health responses to violence. Local

and

incarceration

occur

in

higher

approaches

without

proportions.

responses to the spike in violent crime in
Washington, D.C., Baltimore, and other

2) Expand

diversion

cities have shown support for efforts that

stringent offense prohibitions. There has

address the root causes of violent crime, de-

been

escalate conflict, and focus on providing a

attention towards approaches that divert

a

significant

increase

in

policy

31

JUSTICE POLICY INSTITUTE
someone from the justice system before they

include a broader range of behaviors,

end up being arrested, convicted, and

including those defined in some contexts

imprisoned. By way of example, Law

(statutory or correctional) as being a violent

Enforcement

Diversion—where

crime. When changing the classification of

police officers have the option of diverting

an offense, caution should be taken so that

someone they would otherwise arrest and

the approach also seeks to reduce the

book, to a case manager that lines them up

number of people sentenced to local jails,

with various services—have been pioneered

and to reduce the chances that reductions in

in some jurisdictions. These programs create

state prison populations would lead to more

opportunities to reduce the number of

people being sentenced to jail.

Assisted

people formally processed by the justice
system.

Right

diversion

4) Reduce the number of offenses that result

approaches are only targeted to individuals

in criminal and delinquency proceedings.

whom

For decades, American legislators have

law

now,

many

enforcement

identifies

as
104

engaging solely in nonviolent crimes.

simply layered their statutes with more and

Approaches that divert someone from the

more offenses, some of which can lead

justice system before they end up being

directly to imprisonment or to deeper

arrested, convicted, and imprisoned should

penetration into the justice system through

be expanded, and offense restrictions to

an arrest.

these approaches should be scrutinized.

for an end to “overcriminalization”—the

Some conservatives have called

trend to use the criminal law rather than the
3) Reduce the number of offenses that can

civil law to solve every problem, to punish

result in incarceration. There has been

every mistake, and to compel compliance

significant movement to reclassify certain

with regulatory objectives,”105 a frame that

behaviors so that they are no longer eligible

seeks to reduce the role of the justice system

for prison and create opportunities for a

on individuals and corporations. In Ohio,

person

the

to

be

re-sentenced.

When

Criminal

Justice

Recodification

Californians passed Proposition 47, the

Committee was instituted and tasked with

voter-initiated law changed a series of

reviewing the criminal code to “recommend

felony offenses to misdemeanors, which

a plan for a simplified criminal code” and

permitted people previously sentenced for

reviewing how offenses—including violent

these crimes to petition for re-sentencing.

crimes—are

As of January 6, 2016, approximately 4,532

Legislators throughout the country should

people

under

start reducing the number of behaviors that

Proposition 47, but like many changes in

result in a criminal or civil offense and help

justice policy in California, the crafting of

ratchet down the reach of the justice system.

have

been

released

treated

under

the

statute.

Proposition 47 landed squarely in the debate
around what constitutes a violent offense.

5) Reduce

the

number

of

people

on

While the uniqueness of California’s statute

community supervision. While 2.3 million

and the polarized justice reform discourse

people in the country are incarcerated, an

affect who can benefit from recent reforms,

additional

these changes represent a base to build

community supervision, with 4 million of

from.

those on probation. In alignment with best

Offense

reclassification

should

5

million

people

are

on

DEFINING VIOLENCE

32

practices, probation, parole, and pretrial

their age, progress in completing treatment

agencies are being asked to ratchet down

or a service, or the demonstration that the

supervision based on a person’s assessed

person has a capacity to change. All laws,

needs; remove fees, fines, or housing

policies, and practices that lengthen the

restrictions

that

someone’s

serve

success;

as

connect

barriers

to

amount of time someone is incarcerated

people

to

need to be put under the microscope, across

services; and shorten supervision terms or

offense categories.

create incentives for people to earn their

need to be looking at mandatory minimums,

way off supervision. This best-practice

sentencing

approach also calls on supervision agencies

sentencing laws, statutes that make certain

to change their approach from something

offenses ineligible for parole, and practices

colloquially described as “nail them and jail

that restrict people from earning time off

them”—a manner of supervision solely

their

reliant on monitoring behavior—to an

programing and services. Legislators and

approach

justice system professionals need to increase

where

a

supervision

agent

Justice system leaders

enhancements,

sentence

for

for

truth-in-

participation

an

in

engages the person they are working with in

opportunities

individualized

positive behavioral change. The hallmark of

approach to assessing whether the use of

this approach is an objective assessment of

incarceration is just, both for the person

what a person needs to change their

incarcerated and the harmed party, and for

behavior, a less subjective assessment of

the community.

their risk to reoffend, and a tailored
approach to meet the needs of each person.

7) Increase restorative justice and trauma-

If these approaches were adopted at scale,

informed approaches to reduce violence.

they would include changes that would

Under

remove from intensive supervision people

approaches to meet the needs of crime

assessed to be at low risk of reoffending and

victims and promote restorative justice

with few needs, reduce the number of

practices, the line between who is the

people on supervision, reduce the time

harmed party and the person causing the

people are on supervision, and reduce the

harm—and what they both need—stretches

number of people revoked and sent to

beyond the offense. As one federal agency

prison

community

notes, “the majority of people who have

All of these approaches are

behavioral health issues and are involved

less reliant on the instant offense that leads

with the justice system have significant

to someone’s justice system involvement.107

histories of trauma and exposure to personal

or

supervision.

106

jail

from

some

of

the

more

thoughtful

and community violence. Involvement with
6) Change laws, policies, and practices that

the justice system can further exacerbate

affect length of stay. Significant numbers of

trauma for these individuals.”108

people in prison face mandatory terms of

strength of trauma-informed, public health,

The

incarceration and parole restrictions that are

and restorative justice approaches is that

based on the crime that occurred in

they address root causes of crime and make

someone’s distant past and that limit the

restoring the harm caused by behavior more

integration of other factors such as a

central than simply punishing a person

person’s assessed risk to reoffend due to

based on the offense. These approaches also

33

JUSTICE POLICY INSTITUTE
help focus resources in the right direction,

they have seen little change in their overall

largely away from the justice system and

use of incarceration. Initiatives have been

toward addressing the harm.

Surveys of

offered to cut the prison and jail population

crime victims show that there is more

by 50 percent or to reduce a particular state

support

prison population by a certain amount.

for

using

alternatives-to-

incarceration, restitution, and providing a

Jurisdictions

service to a crime victim than simply relying

reform proposals the idea that the metric of

on long prison or jail sentences.

success should include a reduction in the

109

could

start

building

into

overall number of prisons and jails. Making
8) Use risk assessment tools in decision-

reductions in the number of prisons and jails

making. Risk assessments are being used

part of justice reform proposals will give

throughout the criminal justice system to

policymakers a tool to move beyond offense

help make better decisions, particularly

categories in how they redesign public

around whether someone can be released

safety systems.

pretrial or paroled. These tools need to be
scrutinized for any factors that might

10) Reduce gun availability.
gun

availability

The role that

needlessly ratchet up someone’s offense

mass

history (such as increased law enforcement

incarceration is something that needs to be a

presence in one community over another).

broader area of focus in justice reform

While risk assessments hold promise to help

proposals. With America becoming a place

move the discussion from a sole focus on the

with about as many guns as people, and

offense to help justice system professionals

with guns playing such a significant role in

manage the system, these tools are just that,

increasing

tools. Risk assessments are only as good as

disparities, the relationship between guns

what they were designed to do, how they

and incarceration needs to be part of the

are used, who is using them, and to what

overall

end. Risk assessments do not eliminate the

Reducing gun access,

need for a trained justice professional to

production, and reexamining the role that

make an individualized judgment around

guns play in sentencing need to be part of a

what a person might need to help change

broader approach to reducing the use of

their behavior, or replace the value that a

incarceration.

justice system needs to act proportionately

violence that focus on restrictions on who

and justly. All assessment tools need to be

can have a gun (versus reducing the supply

carefully validated and reviewed to know

of guns) need to be balanced to get to the

that they are assessing risk accurately and

heart of reducing the use of incarceration,

that they are not perpetuating racial and

and enhancing public safety.

sentence

dialogue

plays

lengths

in

in

mass

and

justice

racial

reform.

availability,

and

Efforts to reduce gun

ethnic bias.
By expanding the use of prevention, diversion,
9) Make prison and jail closures part of
justice reform proposals.
states

have

already

A number of
gone

and revamping community supervision; making
better use of trauma-informed approaches;

through

identifying and removing barriers to length of

stakeholder-driven processes to recommend

stay; and making prison closures part of justice

strategies to right size their systems, and

reform proposals, fewer people will be locked

DEFINING VIOLENCE
up.
result

Taken together, these strategies would
in

a

reduction

of

justice

system

involvement overall and would guard against
having a population of people needlessly moved
from prisons to jails or from locked custody to
less-effective forms of supervision.

34

35

JUSTICE POLICY INSTITUTE

Is studying the problem the same as solving the problem?
As the issue of the overuse of incarceration has become part of the mainstream justice debate, various task
forces, commissions, and study groups have been convened to study the problem and recommend policy
changes. While it is important in the hyperpolarized justice policy field for stakeholders to have an
opportunity for meaningful dialogue around sound policy proposals, studying the problem of mass
incarceration isn’t the same as solving the problem. Ohio, Virginia, and Illinois offer cautionary tales
about the need to balance a process of studying the problem with tangible progress in addressing the
problem.
In Ohio, the Criminal Justice Recodification Committee work is not yet complete, and recommendations
for changes to how offenses are catalogued have not yet been offered to legislators. As noted by the
ACLU in Ohio, the need to study the statute to potentially reduce the number of offenses did not stop the
Ohio General Assembly from introducing 54 new bills—11 percent of the total number introduced in both
chambers—that increased the number of offenses or penalties that could result in a prison or jail term. 110

In Virginia, Governor McAuliffe (D) instituted a Commission on Parole to assess the impact of the
Commonwealth’s abolition of parole, truth-in-sentencing, and correctional policies.

While two dozen

recommendations were offered to legislators—including redefining what constitutes a violent crime and
changes to sentencing and statutes that would have meant people convicted of violent crime might have
had opportunities to leave prison sooner—none of the recommendations offered was enacted in the 2016
legislative session.
Illinois, the State Commission on Criminal Justice and Sentencing Reform was charged with developing
policy proposals that would review the “current criminal justice and sentencing structure, sentencing
practices, community supervision, and the use of alternatives to incarceration” and to “make
recommendations for amendments to state law that will reduce the State’s current prison population by
25% by 2025.” In March 2016, three bills that stemmed from recommendations in the report were offered
to legislators: bills that would issue state identification cards to people leaving prison, a requirement that
a judge review pre-sentencing reports and explain why incarceration (rather than probation) is
appropriate, and legislation to expand the use of electronic monitoring for people sent to state custody for
less than a year.

Thus far, these approaches have been focused on finding ways to reduce the

incarceration of people convicted of nonviolent offenses. Illinois Governor Rauner (R) noted when these
legislative proposals were introduced that “this is not the end of anything. This is the very beginning of a
process that will go on for years to improve our criminal justice system.” 111

DEFINING VIOLENCE

1Daniel

36

Denvir, “‘Non-serious, non-violent, non-sexual’: Fixing our mass incarceration problem means getting past the easy steps,”
Salon, October 26, 2015,
http://www.salon.com/2015/10/26/non_serious_non_violent_non_sexual_fixing_our_mass_incarceration_problem_means_getting_p
ast_the_easy_steps/
2Sixteen states out of twenty four saw declines in their prison population saw declines of two percent or less, and the federal prison
population declined by 2 percent. See E. Ann Carson, Prisoners in 2014 (Washington, D.C.: U.S. Department of Justice, Office of
Justice Programs, Bureau of Justice Statistics, 2015).
3E. Ann Carson, Prisoners in 2014 (Washington, D.C.: U.S. Department of Justice, Office of Justice Programs, Bureau of Justice
Statistics, 2015).
4By way of example, in California, between 2007-2015, the state spent $2.2 billion on building new jails, and the most recently
enacted state budget added another $270 million to that figure. Personal correspondence, Steve Steven Meinrath, ACLU of
California, Center for Advocacy and Policy, June 23, 2016.
5 Todd D. Minton and Zhen Zeng, Jail Inmates at Midyear 2014 (Washington, D.C.: U.S. Department of Justice, Office of Justice
Programs, Bureau of Justice Statistics, 2015). “Twenty-eight counties are leveraging $1.7 billion in state grants to build and expand
35 jails. These projects, in various stages of design and construction, will initially add about 12,000 jail beds in the state, according to
the Public Policy Institute of California. But many of the new jails are designed to accommodate future expansions that could
significantly increase their capacity.” See Anat Rubin, “California’s Jail-building Boom: What comes after mass incarceration? Local
incarceration,” The Marshall Project, July 2, 2015, https://www.themarshallproject.org/2015/07/02/california-s-jail-buildingboom#.Rjr3eRYek
6 Marie Gottschalk, “Are We There Yet? The Promise, Perils and Politics of Penal Reform,” Prison Legal News, January 1, 2016,
www.prisonlegalnews.org/news/2016/jan/1/are-we-there-yet-promise-perils-and-politics-penal-reform/
7Dana Goldstein, “How to Cut the Prison Population by 50 Percent. No, freeing potheads and shoplifters is not enough,” The
Marshall Project, March 4, 2015, www.themarshallproject.org/2015/03/04/how-to-cut-the-prison-population-by-50percent#.sPHgvXGF5
8 “Mass Incarceration: The whole pie. ” (Northampton, MA: Prison Policy Initiative, 2016).
http://www.prisonpolicy.org/reports/pie2016.html
9 Dana Goldstein, “How to Cut the Prison Population by 50 Percent,” The Marshall Project, March 4,
2015,www.themarshallproject.org/2015/03/04/how-to-cut-the-prison-population-by-50-percent
10 Jason Ziedenberg, “The Punishing Decade: Prison and Jail Estimates at the Millennium (Washington, DC: Justice Policy Institute,
2000) http://www.justicepolicy.org/images/upload/00-05_rep_punishingdecade_ac.pdf
11 A study analyzed crime rates between the United States and other developed European countries. It found that the United States’
average homicide rate from 1950 – 1960, per 100,000 residents is 5.27. Conversely, Europe’s homicide rate, which included Great
Britain, Netherlands, France, Germany, Italy, Spain, Sweden and Poland, in the same time frame, was .88 per 100,000 residents.
During this time period, the United States’ incarceration population was comparable to the current conditions in Europe.
Furthermore, in 2000 the United States’ homicide rate per 100,000 was 6.1 compared to Europe’s 1.225; Any Kiersz, “The U.S. has
had the Western World’s Worst Rate of Homicide for at least 60 Years,” Business Insider, November 2014.
http://www.businessinsider.com/us-vs-western-homicide-rates-2014-11
12 A statutory analysis was conducted for select states and the District of Columbia to highlight how helpful broad offense
categories might be in understanding how to reduce prison and jail populations. A literature review supplements the statutory
analysis, and additional information was reviewed to put certain behaviors in their proper social and community context.
13 In New York, violent felonies include aggravated murder, crime of terrorism, assault in the first degree, burglary in the first
degree, robbery in the first degree, and rape in the first degree. http://yonkerspd.com/penal.law/bviolent_felonies.htm
14 In New York, nonviolent felonies include grand larceny in the first degree, insurance fraud in the first degree, compelling
prostitution, bribery in the first degree, enterprise corruption, and aggravated vehicular homicide. See,
http://yonkerspd.com/penal.law/b_felonies.htm
15 Division of Adult Parole Operations Non-Revocable Parole. California Department of Corrections and Rehabilitation.
http://www.cdcr.ca.gov/parole/non_revocable_parole/non-revocable_parole_faqs.html
16 Defined in Penal Code section 667.5(c).
17 Defined in Penal Code section 1192.7(c).
18 Defined a registerable offense under Penal Code section 290.
19 “While, as of October 1, 2011, local communities will begin taking custody of offenders who meet the criteria of being non-violent,
non-serious, and non-sex offenders, there are some exceptions to this rule. There are a number of crimes that are categorized as
being non-violent, non-serious, and non-sex offenses but nonetheless, under the California Penal Code, will still require that
offenders serve their sentences in State prisons. These crimes are also known as the Exclusions, and there are a total of 59. Their
exclusion status is due to their enactment as majority-vote bills wherein voters decided that tougher and longer sentences were
required for certain kinds of offenses. Thus, any offender convicted of any one of these 59 exclusions will serve their sentences with
the State.”

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E. Ann Carson, Prisoners in 2014 (Washington, D.C.: U.S. Department of Justice, Office of Justice Programs, Bureau of Justice
Statistics, 2015),Appendix Table 4 and 5, http://www.bjs.gov/content/pub/pdf/p14.pdf
21Personal Communication, Elizabeth Smith, University of Maryland's Carey School of Law, February 26, 2016. Also see “From A
Life Term To Life On The Outside: When Aging Felons Are Freed,” National Public Radio, February 18, 2016,
http://www.npr.org/2016/02/18/467057603/from-a-life-term-to-life-on-the-outside-when-aging-felons-are-freed
22Of 820 people who had been serving for murder or manslaughter, two (0.2 percent) returned to prison for a new homicide. About
6 percent of this group did return to prison for other crimes over the three year period. Barbara Levine, 10,000 Fewer Michigan
Prisoners: Strategies To Reach the Goal, (Lansing, Michigan: Citizens Alliance on Prisoners and Public Spending, June 2015).
23 Freedom of Information Law appeal, email message from Terrence Tracy, April 19, 2013
24 Prison Returns for A-1 Violent Offenders. How do Violent Offenders preform in the community? 2012 Annual Report from the
Parole Board to the New York State Legislature.
25“Recent studies suggest that 50 percent of offenders released from state prisons return to prison within 3 to 5 years. In contrast,
this article shows that roughly two of every three offenders who enter and exit prison will never return to prison. Using data from
the Bureau of Justice Statistics’ newly revised National Corrections Reporting Program, we examine prison admissions and releases
over a 13-year period in 17 states and over shorter periods in other states to determine the rate at which individual offenders return
to prison. We distinguish between the traditional event-based sampling methods for studying recidivism and our alternative
offender-based method, explaining how each is useful but how the two approaches answer different policy questions.” William
Rhodes, Gerald Gaes, Jeremy Luallen, Ryan Kling, Tom Rich, and Michael Shively. “Following Incarceration, Most Released
Offenders Never Return to Prison,” Crime & Delinquency (2014): 1-23.
26 As of 2014, 3 percent of people in state prison were there for drug possession offenses, 12 percent were people incarcerated whose
most serious drug offense was “other” – a category designed to exclude individuals convicted of trafficking and other drug
offenses. In total, there were about 50,000 people in state prison in 2013 whose most serious offense was drug possession, among the
208,000 people in state prisons for drug offenses. In the federal system, there were 86,080 on December 26, 2015 whose most serious
offense was a drug offense.
27 Doug McVay, Vincent Schiraldi, and Jason Ziedenberg. Treatment or Incarceration: National and State Findings on the Efficacy and
Cost Savings of Drug Treatment Versus Imprisonment (Washington, D.C.: Justice Policy Institute, 2004).
28Carla Marquez et al., “How Much Punishment is Enough? Designing Participatory Research on Parole Policies for Persons
Convicted of a Violent Crime,” paper presented at the Annual Meeting of the American Anthropological Association, Montreal,
Canada, November 16-20, 2010: 10.
29 See Lamb v. State, 93 Md.App. 422, 441, 613 A.2d 402 (Md.Ct.Spec.App.1992).
30 State v. Duckett, 306 Md. 503, 510, 510 A.2d 253 (1986).
31 Epps v. State, 333 Md. 121, 127, 634 A.2d 20 (1993).
32Proposals that were offered to the Maryland JRCC around assault included: adding a category of Assault in the 3rd degree and 4th
degree, new offenses that would have carried penalties between 3 and 5 years, in contrast to the 10 year sentence that a judge can
apply under Maryland’s 2nd Degree Assault law. Sentencing Worksheet, Maryland Justice Reinvestment Coordinating Council,
November 3, 2015.
33 “Important to understanding the scope of the Justice Reinvestment Initiative recommendations is to understand the definition of
“violent crime” as currently defined and used…..The scope of that definition does not include crimes that many individuals would
deem to be violent and it would also include crimes that many individuals would not deem to be violent. Justice will be denied if
crimes that are equally or more serious than existing “violent crime” and “crime of violence” are not similarly situated. The crimes
in Appendix B should not obtain day for day (30 days a month) of diminution credits and they should not be released on
administrative parole without a parole hearing. These are violent crimes and they should not be treated as nonviolent in nature.”
Testimony of Roberta Roper, Debra Tall, and Russell P. Buttler in Support of the Justice Reinvestment Act, Maryland Crime Victims
Resource Center, March 3, 2016.
34"Pushing heroin and other opioids isn't nonviolent. Shooting a person is violent; quietly poisoning them may not draw blood, but
the result is the same. Reducing jail time for heroin pushers, during an opioid epidemic, does not send the message heroin pushers
need to hear." Del. Herb McMillan, Republican (Anne Arundel). “Maryland House Approves Criminal Justice Overhaul,” The
Baltimore Sun, April 4, 2016, http://www.baltimoresun.com/news/maryland/politics/bs-md-justice-house-20160404-story.html
35The D.C. statute reads as follows: (1) 22-405(b) – is 180-days under current law and it makes it a crime to assault, resist, oppose,
impede, etc. a law enforcement officer engaged in his/her official duties.(2) 22-405 (c) – is a 10-year offense and it makes it a crime to
commit subsection (b) AND cause or create a grave risk of causing “significant bodily injury” to the officer. See Code of the District
of Columbia 22–405, Assault on member of police force, campus or university special police, or fire department.
36Id.
37 Law Offices of Stephen Bilkis & Associates, “N.Y. Pen. Law § 120.08 New York Assault on a Police Officer,”
http://criminaldefense.1800nynylaw.com/new-york-assault-on-a-police-officer.html
38 Christina Davidson and Patrick Madden, “In DC, Wiggling while Handcuffed Counts as Assaulting an Officer.” Center for
Investigative Reporting Reveal News, May 9, 2015, www.revealnews.org/article/dcs-assaulting-an-officer-charge-could-hide-policeabuse-critics-say/
20

DEFINING VIOLENCE

38

Christina Davidson and Patrick Madden, “In DC, Wiggling while Handcuffed Counts as Assaulting an Officer.” Center for
Investigative Reporting Reveal News, May 9, 2015, www.revealnews.org/article/dcs-assaulting-an-officer-charge-could-hide-policeabuse-critics-say/
40 Christina Davidson and Patrick Madden, “In DC, Wiggling while Handcuffed Counts as Assaulting an Officer.” Center for
Investigative Reporting Reveal News, May 9, 2015, www.revealnews.org/article/dcs-assaulting-an-officer-charge-could-hide-policeabuse-critics-say/
41See, Report on Bill 21-0360, the “Neighborhood Engagement Achieves Results Amendment Act of 2016,” January 27, 2016,
http://dccouncil.us/files/user_uploads/event_testimony/B21-0360%20Committee%20Report%20without%20Attachments.pdf
42 Defined as aggravated (violent) or simple (nonviolent). Richard F. Culp et al., Is Burglary a Crime of Violence? An Analysis of
National Data 1998-2007 (New York, NY: John Jay College of Criminal Justice, 2015), www.ncjrs.gov/pdffiles1/nij/grants/248651.pdf
43 Richard F. Culp et al., Is Burglary a Crime of Violence? An Analysis of National Data 1998-2007, (New York, NY: John Jay College of
Criminal Justice, 2015), www.ncjrs.gov/pdffiles1/nij/grants/248651.pdf
44 Richard F. Culp et al., Is Burglary a Crime of Violence? An Analysis of National Data 1998-2007, (New York, NY: John Jay College of
Criminal Justice, 2015), www.ncjrs.gov/pdffiles1/nij/grants/248651.pdf
45 “Proposition 36, passed as part of a ballot initiative in California in 2012, revised the three strikes law to impose life sentence only
when the new felony conviction is "serious or violent, authorized re-sentencing for offenders currently serving life sentences if their
third strike conviction was not serious or violent and if the judge determines that the re-sentence does not pose unreasonable risk to
public safety. The law change continues to impose a life sentence penalty if the third strike conviction was for "certain non-serious,
non-violent sex or drug offenses or involved firearm possession,” and maintains the life sentence penalty for felons with “nonserious, non-violent third strike if prior convictions were for rape, murder, or child molestation.” See Ballotpedia, Proposition 36,
www.ballotpedia.org/California_Proposition_36,_Changes_in_the_%22Three_Strikes%22_Law_(2012)
46 Update to the Three Judge Court (State of California, Department of Corrections and Rehabilitation, March 15, 2016).
47 ‘The CDCR data shows that the recidivism rate of prisoners released under Proposition 36 is 1.3 percent. By comparison, the
recidivism rate of all other inmates released from prison over the same period of time is over 30 percent.” See Proposition 36 Progress
Report: Over 1,500 Prisoners Released Historically Low Recidivism Rate (Stanford, CA: The Stanford Law Three Strikes Project, 2014),
http://law.stanford.edu/wp-content/uploads/sites/default/files/child-page/595365/doc/slspublic/ThreeStrikesReport.pdf
48 Paige St. John, “Petition Drive To Scale Back California's Three Strikes Law Cleared for Circulation,” The Los Angeles Times,
October 20, 2015.
49 Commonwealth of Virginia, The Commission on Parole Review, December 4, 2015.
39

U.S. Sentencing Commission, Amendment to the Sentencing Guidelines, January 21, 2016.
www.ussc.gov/sites/default/files/pdf/amendment-process/reader-friendly-amendments/20160121_RF.pdf
50

Kate Hynes, “The Cost of Fear: An Analysis of Sex Offender Registration, Community Notification, and Civil Commitment Laws
in the United States and the United Kingdom,” The Penn State Journal of Law & International Affairs. 2 (2013): 351-79.
52 “Sexual assault. A wide range of victimizations, separate from rape or attempted rape. These crimes include attacks or attempted
attacks generally involving unwanted sexual contact between victim and offender. Sexual assaults may or may not involve force
and include such things as grabbing or fondling. It also includes verbal threats. See “Rape and Sexual Assault,
http://www.bjs.gov/index.cfm?ty=tp&tid=317
51

53

Jill S. Levenson, Yolanda N. Brannon, Timothy Fortney, and Juanita Baker, “Public Perceptions About Sex Offenders and
Community Protection Policies,” Analyses of Social Issues and Public Policy, 7 (2007): 1-25.
54 Jill S. Levenson, Yolanda N. Brannon, Timothy Fortney, and Juanita Baker, “Public Perceptions About Sex Offenders and
Community Protection Policies,” Analyses of Social Issues and Public Policy, 7 (2007): 1-25.
55 “The rearrest rate for all crimes – not just sex offenses – was 43 percent for released sex offenders compared to 68 percent for
released non-sex offenders, or about one third lower. The reconviction rate for sex offenders for all crimes was 25.” Patrick A.
Langan, Erica L. Schmitt, and Matthew R. Durose, Recidivism of Sex Offenders Released from Prison in 1994 (Washington, D.C.: U.S.
Justice Department, Office of Justice Programs, Bureau of Justice Statistics). Certain subgroups of sex offenders do pose
comparatively higher risk of offending, including same-sex child serious abusers and men who assault women. See Tracey
Velazquez. The Pursuit of Safety:
Sex Offender Policy in the United States (Vera Institute of Justice: New York City, 2008).
56 Of the 4,109 people once convicted of a sex offense who were paroled from 2007 through the first quarter of 2009, 32 (0.8 percent)
returned to prison for a new sex offense.
57 Center on Youth Registration Reform. Understanding Youth Registration, May 2016, http://impactjustice.org/cyrr/
58 For tier II sex offenders it is 25 years and tier III sex offenders appear on a registry for life.
59 Richard Tewksbury, “Collateral Consequences of Sex Offender Registration,” Journal of Contemporary Criminal Justice Research 21
(2005): 75, table 2; Richard Tewksbury, “Exile at Home: The Unintended Collateral Consequences of Sex Offenders Residency
Restrictions,” Harvard Civil Rights-Civil Liberties Law Review 42 (2007): 532-34
60Kristen

Zgoba, Phillip Witt, Melissa Dalessandro, and Bonita Veysey, Megan’s Law: Assessing the Practical and Monetary Efficacy
(Washington, DC: National Institute of Justice, 2008), https://www.ncjrs.gov/pdffiles1/nij/grants/225370.pdf

39

JUSTICE POLICY INSTITUTE

Refers to both sex offender registration and community notification.
There was a slight reduction in reoffending by sex offenders who were acquainted with their victims, which are a small part of the
population of people on registries. Kristen Zgoba, Phillip Witt, Melissa Dalessandro, and Bonita Veysey, Megan’s Law: Assessing the
Practical and Monetary Efficacy (Washington, DC: National Institute of Justice, 2008),
https://www.ncjrs.gov/pdffiles1/nij/grants/225370.pdf
63Offenses Statistics based on prior month's data, Last Updated Saturday, 26 December 2015. Federal Bureau of Prisons, accessed
February 15, 2016,
64“Mass Incarceration: The whole pie. ” (Northampton, MA: Prison Policy Initiative, 2016).
61
62

65

The Sentencing Program, “The Facts: State-by-State Data,” (2014) http://www.sentencingproject.org/the-facts/#map

66During

a 30-state statutory analysis, it was found that 20 states either do not define what a deadly weapon is or they say it is a
firearm or anything else that can cause death. The other 10 states define what a deadly weapon is and give explicit examples of the
weapon.
67Prosecutors

are not legally allowed to charge individuals with crimes unless they feel they have a reasonable likelihood of a
conviction. However, scholars have identified discernible differences in strategies employed by prosecutors that can affect how a
criminal justice process ends under the plea process: vertical overcharging relies on charging a single offense at a higher level than
the circumstances seem to warrant, and horizontal overcharging relies on multiplying the number of charges. In both cases, these are
tools the criminal justice system assigns to prosecutors in the process: there is a possibility to acquire a conviction, and the threat of
a greater sentence due to the augmented charges helps to secure a plea deal and avoid a time consuming trial. These processes are
important because the vast majority of cases that result in someone being convicted of a particular offense are resolved through a
plea deal: In 2013, 97 percent of federal criminal charges were resolved with a plea bargain while only 3 percent went to trial. Kyle
Graham, Overcharging, www.moritzlaw.osu.edu/students/groups/osjcl/files/2014/06/10.-Graham.pdf; Instead of focusing on the
principal offense, the prosecutor delves into and fragments said offense into numerous criminal transactions, Kyle Graham,
Overcharging, www.moritzlaw.osu.edu/students/groups/osjcl/files/2014/06/10.-Graham.pdf; Jed S. Rakoff, “Why Innocent People
Plead Guilty,” November 20, 2014, www.nybooks.com/articles/archives/2014/nov/20/why-innocent-people-plead-guilty/
68Caroline Wolf Harlow, Firearm Use by Offenders (Washington, D.C.: U.S. Department of Justice, Office of Justice Programs, Bureau
of Justice Statistics, 2001).
69Senator Tom Cotton, “Why I Oppose the Sentencing Reform and Corrections Act,” The Washington Times, February 12, 2016.
70 Dara Lind, “Criminal Justice Reform in Congress Has Officially Caved to a Dangerous Myth,” Vox, April 28, 2016,
http://www.vox.com/2016/2/9/10949310/criminal-justice-reform-bill
71Firearms Commerce in the United States, Annual Statistical Update (Washington, D.C.: U.S. Department of Justice, Bureau of Alcohol,
Tobacco and Firearms, 2015).
72William J. Krouse, Gun Control Legislation (Congressional Research Service, 2012), www.fas.org/sgp/crs/misc/RL32842.pdf
73 Regulate Firearms Like Any Other Consumer Product (Washington, D.C.: The Violence Policy Center, 2016).
74 Irshad Altheimer, “An Exploratory Analysis of Guns and Violent Crime in a Cross-national Sample of Cities,” Southwest Journal of
Criminal Justice, 6 (2010): 204-27.
75 National survey data show that African-American youth are often less likely to report committing serious offenses such as
carrying weapons to school. According to the 2013 Youth Risk Behavior, 5.3 percent of African American male students reported
carrying a weapon to school compared to 8.3 percent of white male students.; Laura Kann, Steve Kinchen, Shari L Shankin, et al.,
Youth Risk Behavior Surveillance —United States, 2013 (Atlanta: Center for Surveillance, Epidemiology, and Laboratory Services,
Centers for Disease Control and Prevention, 2014).
76 Caroline Wolf Harlow, Firearm Use by Offenders (Washington, D.C.: U.S. Department of Justice, Office of Justice Programs, Bureau
of Justice Statistics, 2001).
77 The total corrections and supervision expenditure of $39 billion does not include the nearly $26 billion spent by local governments
or any money budgeted by the federal government for federal prisons. See Alison Lawrence, Managing Corrections Cost
(Washington, D.C.: National Conference of State Legislatures, 2014),
http://www.ncsl.org/documents/cj/managingcorrectionscosts.pdf. The Bureau of Justice Statistics reports that in 2010, the total state
incarceration expenditure was roughly $48.5 billion. This report does not include any federal spending. See Tracey Kyckelhahn,
State Corrections Expenditures, FY 1982-2010 (Washington, D.C.: Bureau of Justice Statistics, 2014),
www.bjs.gov/content/pub/pdf/scefy8210.pdf
78 See Tracey Kyckelhahn, State Corrections Expenditures, FY 1982-2010 (Washington, D.C.: Bureau of Justice Statistics, 2014),
www.bjs.gov/content/pub/pdf/scefy8210.pdf
79 See Tracey Kyckelhahn, State Corrections Expenditures, FY 1982-2010 (Washington, D.C.: Bureau of Justice Statistics, 2014),
www.bjs.gov/content/pub/pdf/scefy8210.pdf
80 A Shared Sentence: The Devastating Toll of Parental Incarceration on Kids, Families and Communities (Baltimore, Maryland: Annie E.
Casey Foundation, 2016).
81 A Shared Sentence: The Devastating Toll of Parental Incarceration on Kids, Families and Communities (Baltimore, Maryland: Annie E.
Casey Foundation, 2016).

DEFINING VIOLENCE

82E.

40

Ann Carson, Prisoners in 2014 (Washington, D.C.: U.S. Justice Department, Office of Justice Programs, Bureau of Justice
Statistics, 2015), Appendix Table 4 and 5.
83The National Academies notes that there are a couple of factors that drive disparities in who engages in select categories of crime.
First, the overrepresentation of African Americans in prison for violent offenses persists in spite of the fact that the relative
involvement of African Americans in violent crimes has steadily declined since the 1970s. Second, because policing strategies lead
to law enforcement observing crime more often in communities of color, behavior that is common across races and ethnicities are
more likely to result in people of color being arrested, convicted, and imprisoned. Stop and frisk and drug offenses were specifically
cited as examples where the observed behavior of some communities lead to their higher levels of involvement in the justice system
downstream. Third, the chronic concentration of negative justice system involvement matched with structural disadvantages that
communities of color face in employment, income, and access to health represent structural and historical disparities that are not
controlled for in any research around differential rates of offending. See The Growth of Incarceration in the United States: Exploring
Causes and Consequences. Committee on Causes and Consequences of High Rates of Incarceration, J. Travis, B. Western, and S.
Redburn, Editors. Committee on Law and Justice, Division of Behavioral and Social Sciences and Education (Washington, DC: The
National Academic Press, 2014).
84 Marie Gottschalk.,“Are We There Yet? The Promise, Perils and Politics of Penal Reform,” Prisoner Legal News,
https://www.prisonlegalnews.org/news/2016/jan/1/are-we-there-yet-promise-perils-and-politics-penal-reform/
85People who were sentenced to life without parole for a crime in which the person was convicted of torturing their victim, or were
sentenced to life without parole for a crime in which the victim was a public safety official are excluded from the SB 9 framework.
86People who received a life sentence under the "One Strike" law for particular sex offenses and
“Three Strikes" life sentence based on two or more prior serious or violent felonies are excluded from the SB 260 and 261
framework.
87In California, legislative changes to initiative statutes may require even more than the two-thirds majority, depending on the
language of the initiative. For example, ‘Victim’s Bill of Rights’ enacted by voters in 2008 changed parole eligibility, and requires a
four-fifths vote of the legislature to modify.
88Rob Kuznia, “An Unprecedented Experiment in Mass Forgiveness,” The Washington Post, February 8, 2016. Report to the Three
Judge Court, California Department of Corrections and Rehabilitation, January 15, 2016, http://www.cdcr.ca.gov/News/docs/3JP-Jan2016/January-2016-Status-Report.pdf
89 “We have the most aggressive re-entry program in the country. We have a new conditional pardon program for youthful
offenders. We are working to end warehousing in prisons and moving towards educating and rehabilitating as an operating mantra
for our corrections system. We all agree that public safety is paramount.” See, Andrew Cuomo, 2016 State of the State and Budget
Address, January 13th, 2016, www.governor.ny.gov/news/video-transcript-built-lead-governor-cuomos-2016-state-state-and-budgetaddress
90 People who are sentenced to death or life without the possibility of parole are not eligible to receive a hearing or to be granted
parole under this program. Parole process for inmates 60 years of age or older having served at least 25 years. The Board continues
to schedule eligible inmates for hearings who were not already in
the Board’s hearing cycle, including inmates sentenced to determinate terms. From February 11, 2014 through December 31, 2015,
the Board has held 1,080 hearings for inmates eligible for elderly parole, resulting in 288 grants, 710 denials, 82 stipulations to
unsuitability, and there currently are no split votes that require further review by the full Board. See California State Senate, Senate
Bill. No. 1310. An act to add Section 3055 to the Penal Code, relating to parole.
91 Update to the Three Judge Court, State of California Department of Corrections and Rehabilitation, March 15, 2016.
92 See California State Senate, No. 1310. An act to add Section 3055 to the Penal Code, relating to parole.
93 “In Sacramento, prosecutors and victims rights groups have been working to prevent this temporary program from becoming
state law. They scored a small victory last week when, after a call from this newspaper, state Sen. Mark Leno, D-San Francisco,
gutted Senate Bill 1310, which he introduced last month. The original bill would not only make the Elderly Parole Program state
law, but it would also lower the eligibility age to 50 and the time in prison to 15 years. The withdrawal was unexpected and came
with little explanation. Leno said in a statement Thursday that the bill would be used as a place holder for "other criminal justice
reforms" and that "the bill will not deal with the issue of elder parole." See Julia Prodis Sulek, “California's Elderly Parole Program
Forcing Victims to Face Attackers Decades Later,” The San Jose Mercury News, March 21, 2016, www.mercurynews.com/crimecourts/ci_29663124/californias-elderly-parole-program-forcing-victims-face-attackers
94 “The Legislature has considered a proposal that would have instituted presumptive parole at the earliest release date for inmates
determined to have a high probability of success. This reform would result in significant savings without having a substantial
negative impact on the rate of recidivism.” Governor Snyder (R ) Michigan, Special Criminal Justice Message, May 18, 2015, see
https://medium.com/governor-rick-snyder-s-criminal-justice-special/governor-snyder-s-2015-criminal-justice-special-message456df83f064#.5eieaax8z
95“In fact, parole data shows that the board often denies release based on the nature of the offense, with assaultive and sex offenses
far more likely to result in denial. Since the nature of the offense was already a major factor in setting the minimum sentence, the
parole board is effectively engaging in resentencing, substituting its judgment of how long someone should serve for that of the
court. However, prisoners can no longer appeal parole denials and the current parole guidelines cannot be enforced.” See

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“Evidenced-based Parole Reform Bill (HB 4138) Is an Important First Step,” Citizens Alliance on Prisons and Public Spending,
January 2016, http://2015capps.capps-mi.org/2015/10/house-criminal-justice-committee-votes-8-1-for-presumptive-parole-reform/
96 Personal Communications, Barbara Levine, Citizens Alliance on Prisons and Public Spending, June 20 th, 2016.
97“Medical Parole Package (5078-81) Passes House Appropriations Committee,” Citizens Alliance on Prisons and Public Spending,
January 2016, http://2015capps.capps-mi.org/2016/02/medical-parole-package-5078-81-passes-house-appropriations-committee/
98 Specified crimes still covered under the 10-20-Lifer Law include homicide, sexual battery, robbery, burglary, arson, aggravated
assault, and aggravated battery. The Florida Senate, Bill Analysis and Fiscal Impact Statement, CS/SB 228, Mandatory Minimum
Sentences, February 2016.
99“Bill to Reform Florida’s 10-20-Life Law filed by Aaron Bean, Niel Combee,” Floridapolitics.com,
http://floridapolitics.com/archives/189701-bill-to-reform-floridas-10-20-life-law-filed-by-aaron-bean-and-neil-combee
100As cited by Danielle Sered, Young Men of Color and the Other Side of Harm: Addressing Disparities in our Responses to Violence (New
York City: Vera Institute of Justice, 2015). Bureau of Justice Statistics (BJS), National Crime Victimization Survey, Table 10: Number of
victimizations and victimization rates for persons age 12 and over, by race, gender, and age of victims and type of crime, 1996 2007, http://www.bjs.gov/content/pub/sheets/cvsprshts.cfm (accessed August 13, 2014). When these numbers are broken down by
crime type, there are types of crime, e.g., domestic violence, in which other groups are significantly more likely to be victims. K.F.
Parker, Unequal Crime Decline: Theorizing Race, Urban Inequality, and Criminal Violence (New York: New York University Press, 2008).
101Safer, Stronger DC Advisory Committee Kick-Off Meeting (PowerPoint Presentation). (Washington, DC: Department of Health
and Chief Office of the Medical Examiner, December 2016).
102 Vera Institute of Justice, “Common Justice,” March 11, 2016, http://www.vera.org/project/common-justice
103Judith Greene and Kevin Pranis, Gang Wars: The Failure of Enforcement Tactics and the Need for Effective Public Safety
Strategies (Washington, D.C.: Justice Policy Institute, 2007).104Roy L. Austin, “LEAD-ing the Way to a More Efficient Criminal Justice System,” The White House Blog, July 2, 2015, accessed
March 13, 2016, https://www.whitehouse.gov/blog/2015/07/02/lead-ing-way-more-efficient-criminal-justice-system
105See “Legal Issues: Overcriminalization.” http://www.heritage.org/issues/legal/overcriminalization
106See Community Corrections Collaborative Network: Safe and Smart Ways To Solve America’s Correctional Challenges (Washington, D.C.:
U.S. Department of Justice, Federal Bureau of Prisons, National Institute of Corrections, 2014).
107 For example, if someone lives in a community where police are deployed more than somewhere else, they are more likely to be
arrested for crimes that are fairly common.
108 “Trauma Training for Criminal Justice Professionals,” SAMHSA, August 19, 2015, http://www.samhsa.gov/gains-center/traumatraining-criminal-justice-professionals
109 When Iowa burglary victims were surveyed in the 1997 Iowa Crime Survey around what punishments they preferred, they
voiced stronger support for approaches that rely less on incarceration, such as community service (75.7 %), regular probation
(68.6%), treatment and rehabilitation (53.5%), and intensive probation (43.7%). Support among surveyed burglary victims for a short
jail term (41.4%) and a prison sentence for more than a year (7.1%) garnered much less support. See Gene M. Lutz et al., The 1997
Iowa Adult Crime Victimization Survey (Des Moines, Iowa: Iowa Crime Research Initiative, 1998). One survey of California crime
victims found that, when asked where the state should prioritize resources, seven in 10 victims supported directing resources to
crime prevention versus towards incarceration (a five-to-one margin). California Crime Victims’ Voices. Findings from the First
EverSurvey of California Crime Victims and Survivors (Californians for Safety and Justice, 2012).
110 American Civil Liberties Union of Ohio, Ohio’s Statehouse-to-Prison Pipeline (Columbus, Ohio: American Civil Liberties Union,
2015).
111 Kevin Hoffman, “Rauner, Bipartisan Group of Lawmakers Announce Illinois Criminal Justice Reform Package,” Reboot Illinois,
March 2, 2016, http://www.rebootillinois.com/2016/03/02/editors-picks/kevin-hoffmanrebootillinois-com/rauner-bipartisan-groupof-lawmakers-announce-illinois-criminal-justice-reform-package/53855/

ABOUT THE ORGANIZATION
Justice Policy Institute is a national nonprofit that is dedicate to reducing the use of incarceration and the
justice system by promoting fair and effective policies.
JPI staff includes Paul Ashton, Elizabeth Deal, Jeremy Kittredge, Olivia Martinez, Marc Schindler, Jamille
White, Keith Wallington, and Jason Ziedenberg.

ACKNOWLEDGMENTS
JPI would like to acknowledge the researchers who collected information to help develop this report.
Researchers.
Melinda Miller provided much of the analysis of state statutes and data that constitute the core of the
document. Other research interns who played a role in collecting and summarizing information on this
report include, Margaret Christ, Luis Escoboza, Erika Feinman, Stefany Henriquez, Wendy Pacheco, and
Sara Walenta. The organization acknowledges Dr. Marie Gottschalk’s seminal work The Prison State and
the Lockdown of American Politics (2014) as a key source for the approach to this report.
Reviewers.
While all estimates, inferences, and the way information is characterized in the document are the sole
responsibility of JPI, we would like to acknowledge the following reviewers for giving us feedback to
improve the document:
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Christine Donner, Colorado Criminal Justice Coalition;
James Dold, Advocacy Director, Campaign for the Fair Sentencing of Youth;
Laura E. Hankins, Public Defender Services, Washington, D.C.;
Christine Leonard, Director, Office of Legislative and Public Affairs United States Sentencing
Commission;
Alan Rosenthal, Counsel, Center for Community Alternatives;
Laura Sager and Barbara Levine, Citizens Alliance on Prisons and Public Spending;
Steven Meinrath and Margaret Dooley-Sammuli, ACLU of California;
Bobby Vassar, former Chief Counsel to the Minority in the House Subcommittee on Crime,
Terrorism and Homeland Security;
Mary Denise Davis, Ricardo Flores and Brian Saccenti, Maryland Office of the Public Defender;
Rob Poggenklass, formerly of the ACLU of Virginia.

JPI would like to acknowledge Sarah E. Baker, editor, for her editorial review of the final draft of Defining
Violence.
This report would not have been possible without the generous support of the Open Society Foundation,
and independent donors to JPI.

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