Early Release for Prisoners Convicted of Violent Crimes: Can Anyone Escape the Incapacitation-Retribution Catch-22?

Two decades of criminal-justice reform in the United States have achieved only a modest reduction in the nation’s historically high imprisonment rate. Returning to the much lower imprisonment rate of a generation ago will almost certainly require shorter prison terms for individuals who have been convicted of violent crimes. Such a change, however, would draw at least two important objections: (1) people who have been convicted of violent crimes are an especially dangerous offender group who ought to be incapacitated behind bars for as long as possible, and (2) violent crimes are so serious that long prison terms are required as a matter of justice. In order to evaluate the strength of these claims, it is necessary to develop a more nuanced understanding of who is serving time for violent offenses and what exactly they have done. In the hope of advancing this understanding, this Article undertakes a unique empirical analysis of the nearly 14,000 violence-convicted individuals who are currently in prison in one state, Wisconsin. Focusing first on the incapacitation objection, the Article identifies indicators of recidivism risk and quantifies their prevalence among violence-convicted prisoners. Next, the Article identifies a set of aggravating and mitigating circumstances that bear on just punishment and quantifies their prevalence. Additionally, the Article synthesizes national benchmarks for prison length of stay (LOS) for the major categories of violent crime. Taking into account risk factors, desert factors, and LOS norms, the Article suggests a rough estimate of the proportion of violence-convicted prisoners who seem to be viable candidates for early release. The analysis underscores the practical and political challenges of achieving large reductions in this component of the prison population, but also highlights the wide variation that is masked by the stigmatizing “violent criminal” label