My brother Aaron, a violent felon, is neither my brother nor violent. The fact that these two descriptors aren’t technically accurate is basically irrelevant. In practice, they function as truth.
I was reminded of this last July when my dad called me from the county courthouse. “How’d it go?” I asked, but I already knew it was bad news. If Aaron had been released, it would’ve been his voice on the line.
“The judge gave him 90 more days,” my dad said.
“But I thought—”
“Yeah, well. The judge agreed to that before she knew he was a violent felon.” He paused. “I saw her sentence a couple of guys to eight years. Young guys. He got lucky.” His voice was a tangle of sadness and anger and relief.
I’ve worked in criminal justice reform long enough that phrases like “violent felon” have largely been stripped of their emotional content. But this moment was personal, and hearing the term was jarring. For a second I thought my father must be talking about someone else.
Reform advocates have spent years trying to get the public to pay attention to the injustices of America’s merciless criminal justice system. The good news is it seems to be working, albeit slowly and fitfully, with public perception shifting across the political spectrum. There’s a long way to go—we still imprison more people than any other country in the world and the system is full of inhumanities—but there have been some important, if tiny, triumphs.
But even these minor victories have costs. To make justice reform digestible, we’ve had to draw black-and-white lines that obscure the shades of gray. Take, for example, the binary split between nonviolent and violent offenders. Because nonviolent offenders are much more sympathetic, they’ve received almost all the reform attention. Any mercy the system has demonstrated has gone almost exclusively to those we can safely lump into this nonthreatening category, a group we’ve separated rhetorically from the “violent” types who are generally considered beyond redemption or mercy.
The ones like Aaron. (I’m using a pseudonym to protect his privacy.)
Aaron and I met in eighth grade, more than 16 years ago. That summer he worked the cash register at the local pool, and I hung around the concession stand waiting for him to notice me. The infatuation was brief. We became friends instead.
In high school, our paths diverged. He was perpetually in trouble and rarely in class. By the time I graduated, he’d been kicked out of public school, kicked out of boarding school, and sent to rehab. By the time I’d finished college, he’d gone to rehab at least once more and had been arrested at least twice—including once for a violent offense.
The arrest stemmed from a dispute about money between Aaron and an acquaintance. “He Maced me, then pulled out a gun and hit me on the back of the head with a gun,” the victim told 911. “I had a bunch of money … and he grabbed it and ran.” A witness later confirmed Aaron’s assertion that he hadn’t pulled a gun, but the pepper spray and robbery parts were true.
Aaron was arrested and charged. In 2010, he entered a plea deal, one that defined him as a violent felon. He will carry that designation for life.
It’s a commonly held belief that mass incarceration is a direct result of the war on drugs—that most of the people in American prisons have been locked up on charges of drug possession or drug dealing. This is not true. In state prisons, where 84 percent of prisoners reside, more than half are serving time for violent offenses. In only 17 percent of cases is it true that a state prisoner’s most serious offense is a nonviolent drug crime.
If we want to fix the crippling irrationality of our criminal justice system, this is the reality we must grapple with. The numbers do not lie: There are millions of Aarons. If we want to cut the prison population significantly, we’re going to have to release a whole lot of “violent criminals.”
Like so many other things in politics, justice reform is rife with jargon that carries irrational weight. The nature of a violent offense differs between states and even counties, and the crimes included in this broad category are not always intuitive. In Washington, D.C., for example, yelling at a police officer has been charged as a violent offense. Until recently in California, robbing an empty house could be considered a violent act.
The characterization of violent criminals as irredeemable goes beyond rhetoric: It is also reflected in policy. Even the most progressive prosecutors campaign on cracking down on violent offenders. People with violent offenses on their records often have trouble getting access to diversion or treatment programs. And it’s almost impossible to pass a piece of criminal justice reform legislation if it could benefit violent offenders in any way.
There’s a strong case to be made, as Marc Morjé Howard does in the New York Times, that we should be far more willing to parole those who commit even truly violent crimes. It’s also true, however, that we use the term violent far too imprecisely.
What does it mean to be violent? Surely we can agree that certain crimes, such as rape, are necessarily violent, while others, such as jaywalking, are not. Others are harder to categorize. An addict shares his dose of heroin with a girlfriend, and she accidentally overdoses. Is he a murderer or a nonviolent drug offender? Two men rob a house while a third serves as lookout. They all think the house is empty, but it turns out someone’s home and one of the robbers panics and shoots him. Is the lookout a violent criminal?
Some of the most important questions we can ask about violent criminals have more to do with philosophy than policy. Is violence a permanent and immutable condition? Is violence always physical? What if a person is harmed and hurt and scared but never touched? Is fear a prerequisite for violence? How much does intention matter? Is violence more violent if you wear a certain color or if you’re friends with certain people? If you’re a certain race? Should those who are deemed violent be condemned forever, or are there violent people wasting away in prison cells who deserve our mercy?
These questions may seem obscure or irrelevant, but if you haven’t spent time pondering them it’s only because you can afford not to. Aaron’s future depends on the answers.
As I began studying for finals during my first semester of law school, Aaron began his sentence at a state corrections facility. After his release, he didn’t have money or a bus ticket home. It was a seven-hour drive and my dad barely knew him, but my father agreed to pick him up. Almost seven years later, Aaron still lives with my parents. He helps in the garden, hangs out with my cousins, and eats my leftovers. Last spring, he put on a suit and walked my grandmother down the aisle at my wedding. He’s not a friend anymore. To me, he’s my brother.
But even with my family’s help, the past six years have been a struggle. He’s had trouble renting apartments and getting approved for benefits. For years, he cleaned city parks for 40 hours a week in the hope that one day he’d be able to get a desk job.
He stayed clean for years. But 18 months ago, after losing his best friend to an overdose, he tested positive for marijuana, a violation of his eight-year probationary sentence. It wasn’t a violent offense, but because he had one on his record already he got 90 days—six times the sentence his attorney had told him to expect. He told me later that he asked the judge for mercy. “I’ll lose my new job,” he said. He had finally gotten that desk job. She just shrugged.
Still, my dad was right. He got lucky.
Aaron’s out now. Every morning he attends recovery meetings, and as of June he’s working again. He’s not looking for anything special—no shortcuts or easy breaks. He is just looking for a chance.
It can be virtually impossible for someone with “violent offender” on his record to rebuild his life. Aaron will be burdened forever by a debt he has long since accounted for. How long should he have to pay?