FALSE HOPE

WHAT IS A VIOLENT
OFFENSE?
conviction for a “violent offense” can comprise a huge
A range of conduct. Under the law, the term “violent
offense” incorporates more than serious violent crimes
in which a victim is physically harmed, and the definition
varies greatly across states. Some jurisdictions define violent
crime to include burglary, breaking and entering, manufacture
or sale of controlled substances, possession of a firearm
by a convicted felon, or extortion. 97 Still others include
any offense involving the threat or risk of force against the
person or property of another in the definition of violent
crime, even if neither force nor a weapon is actually used. 98
Burglary is often treated as a violent offense under some
state and federal laws even though only 2.7 percent of
burglaries, at most, involve acts of violence where a person
is harmed. 99 For example, an individual who points a fake
gun at a shopkeeper during a robbery can be convicted of a
violent offense.
Each jurisdiction has its own definition of what constitutes
a “violent crime,” and even within jurisdictions, courts
may interpret “violent” offenses in very different ways.
For example, in interpreting sentencing laws that impose
enhanced penalties on defendants with prior convictions
for “violent crime,” some courts have defined violent crime
to include burglary of an unoccupied dwelling, drunk
driving, or fleeing a law enforcement officer, among other
offenses. Moreover, even when a person is convicted of a
serious violent offense such as murder, this definition might
not correspond with the person’s level of participation in
the offense. Several individuals interviewed by the ACLU
were convicted under the felony-murder rule (also known
as “law of the parties”) when they were accomplices to a
crime such as a robbery or burglary but were convicted of
more serious crimes committed by others in their group,
such as murder. Eric Campbell, for example, was 15 when
he acted as the look-out in a robbery in New York; when a
fight ensued between his co-defendant and the shopkeeper
in which the shopkeeper was shot, Mr. Campbell was also
charged and convicted of murder and sentenced to life in
prison. A few states, including Texas, still allow accomplices
to a murder who were not the triggerman to be sentenced
to death.
Bigstock
“
This idea of total
incarceration just isn’t
working. And it’s not
humane.”
—Supreme Court Justice Anthony Kennedy
before even becoming eligible for parole. As the Sentencing
Project’s analysis of life sentences demonstrates, the issue
is not only that more individuals are sentenced to life and
life without parole today (despite declining rates of crime
across the United States) but also that individuals serving
parole-eligible sentences “are increasingly less likely to be
released or, if they are, their release comes much later than
similarly situated individuals in earlier decades.” 100
Long and harsh sentences are not just an extreme but cabined
outlier in how America punishes. Rather, extreme sentences
have the effect of lengthening the norm for a sentence.
Observes law professor Jonathan Simon, “The existence of
LWOP has also tended to increase the severity of even those
murder sentences that permit parole after some number of
years (typically 15 or 25) by establishing a political norm
that life should mean life.” 101
Even as rates of violent crime continue to decline—not
only in the United States but in less punitive countries in
Europe—Judge Kozinski notes, “We may be spending scarce
AS OF 2013,
47.2%
OF PEOPLE SERVING LIFE
SENTENCES ARE BLACK
taxpayer dollars maintaining the largest prison population
in the industrialized world, shattering countless lives and
families, for no good reason.” 102 As Supreme Court Justice
Anthony Kennedy told Congress in his 2015 testimony on
appropriations, “This idea of total incarceration just isn’t
working,” he said. “And it’s not humane.” 103
B. LONGER FOR SOME: RACIAL
DISPARITIES IN SENTENCING
In the United States, extreme sentences are increasingly the
norm, but they are disproportionately imposed on people
of color. People of color are overrepresented at every contact
point with the U.S. criminal justice system from arrests
through sentencing, and also as victims of violent crime. 104
In the federal system, sentences imposed on Black males are
nearly 20 percent longer than those imposed on white males
convicted of similar crimes. 105
Racial disparities increase with the severity of the sentence
imposed. The level of disproportionate representation of
Black people among prisoners who are serving life sentences
without the possibility of parole (LWOP) is higher than that
among parole-eligible prisoners serving life sentences. The
disparity is even higher for juvenile offenders sentenced
to LWOP—and higher still among prisoners sentenced to
LWOP for nonviolent offenses. Although Blacks comprise
about 13 percent of the U.S. population, according to 2009
Sentencing Project data, Blacks constitute 56.4 percent of
those serving LWOP and 56.1 percent of those who received
LWOP for offenses committed as a juvenile. 106 As of 2013,
Blacks constitute almost half (47.2 percent) of all lifers, and,
in the federal system, 62.3 percent of prisoners serving life
sentences. 107 Based on 2012 data provided to the ACLU by
the U.S. Sentencing Commission and state Departments of
Corrections, the ACLU estimates that nationwide, 65.4 percent
of prisoners serving LWOP for nonviolent offenses are
Black, 17.8 percent are white, and 15.7 percent are Latino. 108
For violent offenses, once again, non-white individuals
are disproportionately convicted and sentenced compared
with their white counterparts. As the National Research
Council’s 2014 report on mass incarceration observed,
20 AMERICAN CIVIL LIBERTIES UNION FALSE HOPE: HOW PAROLE SYSTEMS FAIL YOUTH SERVING EXTREME SENTENCES
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