950 words; 4 minutes to read
Many discussions of crime treat so-called ‘violent crimes’ as a special subset that deserves a different, and harsher, response. But there are compelling reasons to be dubious about this distinction. Many of these are laid out in a recent paper by U S law professor Cecelia Klingele.
Her analysis makes several key points
Violence is ubiquitous
First, violence in society is ubiquitous. “Any one of us can be violent, and too often we are.” Yet, Klingele points out, we know that nearly everyone will at some point “inflict some measure of physical pain on another person, whether by shoving, pinching, slapping, punching, biting, or using a weapon”. In fact, “aggression and violence are pervasive human experiences – and not rare acts limited to a deviant few”. She cites data on levels of violence, including domestic violence, and on how many people admit to having been in a fight, to driving aggressively, to destroying things through vandalism.
Though violence is common, only a small portion of violent actions are dealt with through the criminal justice system. This is partly because only some kinds of violence are criminalized in the law but even more because many victims don’t report violence against them and even if they do, police and prosecutors exercise a great deal of discretion as to which cases they choose to pursue. As is well known, much domestic violence, sexual violence, and even common assault are never reported or prosecuted. And as we know, even reporting these events does not mean that any legal action will be taken.
Only some violence is termed criminal
The question of which acts of violence are criminalized is interesting in itself. For most of human history, slavery was legal. Hitting children (and women) was legal. Marital rape only became a crime quite recently. There is still wide variance today from place to place in what kinds of behaviours are regarded as violent or accepted as, say, self-defense.
On the other hand, in many places actions that do not involve any direct harm to another person are named as violent in law. For example in Canada almost all sex crimes are automatically regarded as violent even if there is no known victim. In other places selling drugs may be defined as a violent crime and punished accordingly.
Many people termed violent criminals are often very similar to other people
The ubiquity of violence means that the vast majority of people who commit violent acts do so only rarely. Indeed, this view is confirmed by data showing that murderers are highly unlikely to commit another crime of any kind. “The label “violent criminal” evokes an image of someone dangerous; however, the wide range of behavior included in legal definition of violence calls into question the idea that those convicted of violent crime are meaningfully different from those who are not.”
The state is an instrument of violence also
Violence is more likely where people are poor, marginalized or powerless. In fact, the state is itself a frequent instrument of violence, and that is especially so for groups like the police or prison guards, who operate in settings where the others are powerless. “… the broad power given to police and correctional officers should cause us to more closely examine the ways in which violence may be perpetrated not only by those confined in prisons and jails, but also the state actors who work within them due to the imbalance of power that exists in these environments.”
And even more, “state imposed violence can include all manner of intentional and non-consensual harms, many of which can be found in the routine practices of criminal courtrooms. Activities such as shackling children and intentionally humiliating defendants are everyday activities in criminal courts, sanctioned by law in many instances.” These, too, could be considered forms of violence. Thus, “the criminal justice system itself often replicates and fosters the very violence it condemns.”
Treatment of ‘violent crime’ often unfair, counterproductive
Despite all this, people tend to judge those who commit harshly and to see their actions as fundamental aspects of their personality. “For those of us who have never been convicted of a crime, it is easy to overestimate the degree to which our freedom from legal entanglement is a result of personal virtue – we exaggerate our own virtue and others’ lack of it.” Even more so if the persons accused are from groups with which we do not identify.
As a result we treat people harshly and may regard them as irredeemable. The paper points out the very harsh consequences of being convicted of a crime that is considered violent – longer sentences, less chance of bail before trial or parole at the end of a sentence, and more restrictions on post-sentencing life. Even those accused and not convicted of a violent crime may be seen as ‘uniquely deviant and dangerous’, especially because the internet means that one’s run-in with the law, even if it does not lead to a conviction, is often permanently available to anyone who wants to take the trouble to look.
“ If, however, violence (along a continuum) is actually normative…then periodic or isolated examples of violence—even those that lead to criminal conviction—are not necessarily indicators of persistent, escalating, or enduring danger that must be aggressively controlled in perpetuity. Instead, violent conduct—like any other deficit, such as poor interviewing skills or dishonesty or blaming others— should be met with opportunities to identify the driver of the conduct and build skills to improve the quality of future interactions.” There is no reason to think that people convicted of violent crime are less responsive to intervention than anyone else.
The next time you read or see something that makes glib reference to violent crime, it’s worth pondering on the issues raised in this paper.
Labeling violence, by Cecelia Klingele, was published as a research paper by the University of Wisconsin Law School and is available free at https://ssrn.com/abstract=3664903.