Labeling Violence

In recent years, federal and state-level criminal justice reforms have softened the punitive responses to crime that defined the quarter-century from 1980–2005. The main beneficiaries of these reforms have been non-violent criminals, who are increasingly eligible for pre- and post-charge diversion, expungement, early release from custody and early discharge from community supervision. For those convicted of violent offenses, not much has changed: sentences remain long; opportunities for release remain few; and conditions of post-release supervision are tightly enforced, leading to high rates of return to prison. The justification for a harsh response to violent crime is that such crime inflicts significant harm and represents a dramatic deviation from standards of acceptable behavior. In fact, “violent” behavior—that is, behavior that is intended to cause, or does in fact cause, physical injury to another person—is hardly anomalous. Across the life-course, and particularly in youth and young adulthood, such behaviors frequently occur among a broad spectrum of the population and rarely lead to criminal conviction. This Article explores why only some behavior is labeled violent, and what implications this fact has for sentencing and correctional management of people convicted of violent crimes, and for the broader management of the criminal justice system. “I think the big point is that there are not two kinds of humans: one the kind that commits crimes and gets imprisoned and another the kind that does not commit crimes . . . . I think there is but one kind of human beings, all of whom are a mix of good and bad, all of whom do a mix of good and bad things. As for the bad things, comparatively few of them have been labeled criminal. There is an infinite number of ways not declared crimes in which, without justification, we inflict pain and sorrow upon and exploit one another and destroy the thin envelope of air and water and soil in which we live.” —Hon. James E. Doyle, U.S. District Judg