Works in Progress Group # 5 Criminal Justice: Decarceration

Go Back

Session Type: Works-in-Progress

Session Capacity: N/A

Location: N/A

Room: N/A

Floor: N/A

Why We Should Stop Talking about “Violent Offenders”
Mira Edmonds, University of Michigan Law School

The movement to decarcerate risks foundering because of our failure to grapple with so-called “violent offenders,” who make up a majority of U.S. prisoners. “Violent offense” is itself an inchoate term that is both under- and over-inclusive and varies by jurisdiction and context. “Violent offender” is an even less helpful term, as it attempts to describe the essential state of a person based on a single act – or even worse, based on a single act committed by someone else, as is the case for those convicted of felony murder or of aiding and abetting. The category is specious and of limited utility in understanding who truly poses a risk to public safety.

The severe curtailment of early release mechanisms in most jurisdictions has created a population of “permanent prisoners.” Statistically, this population has “aged out” of crime, and additionally, many of these individuals clearly pose no danger due to their physical or mental deterioration as they have aged. Nonetheless, there is strong resistance to developing mechanisms that would facilitate the release of these individuals from prison. While the moral imperative to release nonviolent offenders serving draconian sentences is clear, such efforts will ultimately be a drop in the bucket if we fail to deal with the majority of prisoners who are serving sentences for offenses categorized as violent. Professor Edmonds' article suggests it is time to recognize a moral imperative to release “violent offenders,” too, as the lengthy sentences that they have been serving defy penological goals, data-driven research, and fiscal logic.

Compassionate Release and Decarceration in the States

Though the U.S. prison population has declined slightly over the last decade, progress toward decarceration has been exceedingly modest. Creating or expanding mechanisms for early release from prison could help accelerate the pace of decarceration. Compassionate release – early release from prison based on a serious or terminal medical condition – is the only early release mechanism already available in nearly every state. Professor O'Leary's article uses compassionate release as a case study in the possibilities and limits of early release measures as tools for decarceration in the states.

So far, decarceral reforms have largely failed to reach people convicted of violent crimes, who account for over half of the state prison population. The challenge presented by the prevalence of violent convictions is particularly acute for compassionate release. People age 55 and older, who make up a significant and growing share of people in state prisons, are the age group most likely to qualify for compassionate release. They are also the age group most likely to be incarcerated for a violent conviction. Through a 50-state survey of compassionate release laws, this article identifies the significant barriers that people incarcerated for violent convictions face when seeking compassionate release, even when they are not outright barred by their conviction.

This article argues that to be effective, tools for decarceration, compassionate release, and other early release measures must reduce the obstacles to release for people incarcerated for violent convictions. The article models this approach with concrete suggestions for reforming compassionate release in the states.