Op-Ed: To end mass incarceration, look beyond ‘non-violent drug offenders’

Ever since President Obama commuted the prison sentences of 46 nonviolent drug offenders last week, reformers have been calling for similar acts of leniency for other nonviolent drug offenders still behind bars. Obama himself used his clemency declaration to denounce mass incarceration and racial disparities in sentencing, focusing on overpunishment of drug offenders in particular.

The White House’s push for meaningful criminal justice reform is laudable and arguably unprecedented. But if the president and reformers hope to radically reduce the number of people in American prisons and address glaring disparities in criminal justice, focusing narrowly on nonviolent drug offenses won’t get them very far.

The truth is that prosecution for violent crimes, and not prosecution for drug possession and sales, is the primary engine of mass incarceration in this country. Economist and criminal justice scholar John Pfaff of Fordham Law School, using numbers from the National Prisoner Statistics database, has shown that from 1980 to 2009, the increase in drug offender incarcerations accounted for only 21% of the growth in state prison populations. By contrast, the increase in violent offender incarcerations during that period accounted for more than half of prison population growth. (Property crimes accounted for an additional 16%.) Moreover, the huge and much-criticized racial disparities in drug prosecution rates also exist in violent crime prosecution rates.

Conceptualizing nonviolent drug offenders as somehow qualitatively different from other offenders creates a false distinction. Many crimes labeled “violent” under our criminal codes are either directly motivated by drug addiction or directly related to drug sales or possession. A heroin-addicted veteran who walks into a garage to steal tools to feed his drug habit has committed a first-degree burglary, a “violent” crime under many state codes. A drug-motivated unarmed robbery in which the offender pushes the victim, takes cash from his wallet, and runs away is also a “violent” crime under most state laws. A person who owns a firearm and has it in his house while engaging in a drug deal has committed a “crime of violence” under the federal sentencing guidelines. In short, “violent crime” is a legally constructed term that includes within its broad reach a great deal of drug-related conduct that wouldn’t be considered “violent,” as Americans colloquially use that term.

Painting nonviolent drug offenders as a special group that deserves leniency obscures the fact that even those guilty of indisputably violent acts should not be overcharged or sentenced to disproportionately long prison terms. Piling on charges and strong-arming guilty pleas under the threat of mandatory-minimum sentences are fixtures not merely of drug prosecutions, but of all prosecutions in the modern tough-on-crime era.

For decades, politicians have looked to score easy political points — without meaningfully combating crime — by proposing gratuitous increases in punishment for violent offenses. In Washington, D.C., for instance, an 18-year-old with a pocket knife
who tells a victim to get out of his car, and then takes the car for a quick ride, faces a mandatory 15 years in prison for “armed carjacking.”

In California, even after recent reforms to its three-strikes law, an offender with two previous felony drug convictions who commits a carjacking by “threat” receives a mandatory life sentence. In most states, low-level drug mules can be held criminally responsible for killings committed by higher-up drug dealers in the operation, so long as those killings were foreseeable and in furtherance of the operation, under broad theories of co-conspirator liability. And with any previous felony conviction, a person committing an unarmed robbery in which no one is injured can face significant mandatory time in prison and maximum sentences of 40 or more years in many states.

These crimes absolutely deserve serious punishment. But we should not ignore or excuse irrational overpunishment simply because an offender has done something violent.

Addressing the overpunishment and racially disparate treatment of violent offenders is a necessary step toward reining in this country’s bloated prison system. The sooner lawmakers and reformers come to terms with that uncomfortable truth, the sooner America can move beyond the scourge of mass incarceration.

Andrea Roth is an assistant professor at UC Berkeley School of Law who teaches and researches criminal law.

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