Professor Joan Petersilia comments on flaws in sentencing laws for violent and nonviolent criminals for Slate. 

It has become conventional wisdom that America’s prisons are too full, and prominent elected officials on both sides of the aisle have expressed enthusiastic support for reducing the number of Americans behind bars. Of course, different politicians have different ideas about how to pursue this goal. Sens. Mike Lee, R-Utah, and Dick Durbin, D-Illinois, have proposed legislation that would make prison sentences shorter, by loosening mandatory minimum laws and giving judges more leeway in doling out punishment. Sens. Rob Portman, R-Ohio, and Sheldon Whitehouse, D–Rhode Island, are pushing to allow more inmates to leave prison early by going through rehabilitation programs.

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One thing all these reform-minded lawmakers seem to agree on is that the beneficiaries of a more lenient criminal justice system should be strictly limited to nonviolent offenders—people who were convicted of drug offenses, property crimes, and other low-level felonies. The Lee-Durbin bill, for instance, would affect only nonviolent drug offenders while the Portman-Whitehouse proposal explicitly excludes violent offenders. At the state level, meanwhile, we’re seeing more lenient policies for drug and minor property offenses, according to Stanford Law School professor Joan Petersilia, but violent offenses “aren’t being touched, in the main.”

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“Tens of thousands of people in California are serving life sentences for this crime,” said Petersilia, who is the co-director of the Stanford Criminal Justice Center and a member of the Department of Justice Scientific Advisory Board. “If you’re at a party and gang activity breaks out and someone gets shot, all the people who were there—everyone who came with that person who did the shooting, or was part of their gang—can then be convicted of felony murder.”

It seems clear, then, that there are many people serving time for violent offenses who haven’t actually committed violent acts and might be good candidates for reduced sentences. That might sound like good news for reformers, but Petersilia points out that the flaws in the violent/nonviolent labels run both ways: Many offenders who are labeled “nonviolent” actually did commit violent crimes but were able to negotiate for lesser charges in exchange for pleading guilty.

“They’re not clean labels,” said Petersilia. “And it’s a very, very serious problem, because we are downsizing prisons based on these categories. Legislation is being based on these categories that don’t reflect the seriousness of the offender.”