Defining Violence: It’s Not as Simple as You Think

The public’s perception of violence is often drastically at odds with the legal definition.
Los Angeles Police Department gang unit officers aim their guns and pistols at a stolen car stopped on a freeway bridge filled with 6 possibly armed hispanic youths after a three mile chase in the Rampart district of Los Angeles, California. (Photo: Robert Nickelserg/Getty Images)
Sep 19, 2016· 2 MIN READ
Samantha Cowan is an associate editor for culture.

A man is pulled over for a traffic violation. The police officer finds drugs and a gun in the vehicle. He’s charged with sale of a controlled substance while armed with an illegal weapon. A woman holds up a bodega with a squirt gun. She’s charged with armed robbery. A man beats up a drug dealer who stole his money. His charge: aggravated assault with intent to kill.

“Tell me if you’re worried about ‘aggravated assault with intent to kill.’ Of course you are. So am I,” Todd Clear, a professor at Rutgers School of Criminal Justice, told TakePart. “The term ‘violence’ occupies space in all of our heads that is an extremely problematic space. But the things that people actually do to get that label do not always occupy that same space.”

The examples named above are all real crimes committed by students Clear works with in Rutgers University’s prison-to-college program. All were convicted of violent crimes, putting them in a category of offender that is often regarded as too dangerous to consider when discussing prison reform.

“They’re all doing well in college. They’re all articulate. Their lives are lives you would want to invest in,” Clear said of the students. “They are not what society fears when society says we cannot have any reforms for violent criminals.”

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Crimes such as murder, aggravated assault, and armed robbery are uniformly classified as violent, but across the country, criminal codes also include offenses that have an element of threat or a risk of force against either a person or a property, regardless of the actual conduct.

“Trying to define violence as having to involve actual injury seriously complicates things like emptying your gun at somebody but missing,” said Adam Gelb, director of The Pew Charitable Trusts’ Public Safety Performance Project, which works to reduce state prison populations. That’s why a crime could be considered violent if committing it would lead to a “reasonable expectation” of a violent confrontation, Gelb explained.

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Determining what crimes contain a reasonable expectation of violence isn’t black and white, as dozens of them exist in gray areas, and their classification as violent or nonviolent varies from state to state.

Some of the offenses classified as violent in individual state penal codes include drug trafficking in Oklahoma, solicitation of a minor in Minnesota, and rioting in South Dakota. More than a dozen state criminal codes include unarmed burglary among their lists of violent crimes.

“We over-characterize nonviolent behavior as violent and sentence people who commit nonviolent conduct egregiously by denominating them violent offenders,” said Joe Margulies, a law professor at Cornell University.

The distinction between a violent and a nonviolent crime is significant. Being charged with a violent crime has immediate and long-lasting consequences, from dictating the plea deal offered to bail eligibility to length of prison sentence to establishing a history of violence if the offender commits another crime.

“Once they are called a violent offender we behave as though they will be that and they are that for all time, so we can let them rot in prison,” Margulies said.

Violent offenders make up roughly 53 percent of state prison populations, according to the most recent data from the Bureau of Justice Statistics. But BJS defines violent crime as murder, manslaughter, robbery, assault, and sexual assault. When folding in property crimes and public order crimes, as many states do, the percentage of inmates convicted of violent crimes in the state system climbs upwards of 70 percent, according to BJS figures.

Although past prison reform policies have focused primarily on nonviolent offenders, there is a growing consensus that violent offenders must also be considered to significantly reduce America’s prison population.

“What we’re seeing now is a willingness to look at some of the offenses that have been deemed violent…and view them in a different light,” Gelb said. “There is a bipartisan agreement that we can have less crime and incarceration. And we can do that by focusing prison space on truly violent and career criminals while shifting lower-level offenders into alternatives that work better and cost less.” The Pew Charitable Trusts has recommended that states introduce presumptive probation rather than prison time for low-level criminals and increase access to earned time credits for good behavior or for participating in educational programs.

Last year, the BJS reported a 1 percent decrease in the state and federal prison populations, much of which was thanks to policies that diverted nonviolent offenders. Yet many federal and state prisons are dangerously overcrowded and will stay that way until violent offenders are included in prison reform legislation.