As a federal prosecutor in Los Angeles in the 1990s, David Alan Sklansky listened to a speech by his top boss, U.S. Attorney General Janet Reno. Sklansky, now the Stanley Morrison Professor of Law at Stanford, calls the former attorney general a “dedicated public servant,” but he found certain aspects of her remarks disturbing.
She said prosecutors should differentiate among people who commit crimes: For those who have made mistakes or lost their way, prosecutors should try to help and rehabilitate them, but for those Reno labeled “bad baddies,” you need to “lock them up and throw away the key,” Sklansky recalls.
“It was a chilling idea and profoundly wrong,” he reflects. “I don’t think you can resolve the dilemmas of criminal law by saying, well, there are some cases where understanding and mercy are appropriate, and other cases where it’s just vengeance you need. Any attempt to draw that line cleanly is a tragic and fatal error that we should resist with all our strength.”
Three decades later, Sklansky has revisited that theme in a new book, A Pattern of Violence: How the Law Classifies Crimes and What It Means for Justice, in which he argues that the line laws draw between violent and nonviolent crimes is blurry and highly arbitrary—and one that fuels racial bias by police and the criminal justice system. Such an artificial classification, he adds, imposes tremendous costs. U.S. prisons are packed beyond capacity with inmates, disproportionately people of color, sentenced under draconian laws enacted to deal with violent crime. Meanwhile, Sklansky says, deadly assaults and shootings by police officers, at least until recently, were not prosecuted because they didn’t fit what he calls the “master category” of violent crime.
“The problem isn’t just that we are too tough on violent crime,” he writes. “The more fundamental problem is that we think we know what we are talking about when we talk about ‘violent crime,’ when we really don’t.”
Sklansky has made a career of tackling some of the toughest issues in criminal justice, publishing on topics ranging from constraints on prosecutorial power to search and seizure to the sociology of policing. He’s already at work on a new book that explores how criminal justice policy may have contributed to the country’s swing to populism and political polarization. It’s a subject—the relationship between criminal justice and democracy—that threads through his research, along with the role of race in criminal justice policy.
As faculty co-director of the Stanford Criminal Justice Center, Sklansky is a model of using scholarly interests to delve into real-world issues. “He can write scholarship about the most sophisticated doctrinal issues, but it is always inflected with a very practical sense of lawyering that he learned as a prosecutor,” says Robert Weisberg, the founder and co-director of the Stanford Criminal Justice Center.
Nowhere is this more evident than at the center’s innovative policy labs, where students spend months researching critical criminal justice issues. A few years ago, Sklansky teamed up with the center’s executive director, Debbie Mukamal, to launch a lab aimed at discovering the racial demographics of prosecutors in California. Together with their students, they published a report showing that county district attorney offices are far more white and less Latino than the state’s general population. The findings prompted San Joaquin County District Attorney Tori Verber Salazar to seek advice on improving her office’s diversity, launching a policy lab that produced “Diversity in Prosecutors’ Offices: Views from the Front Line.” Verber Salazar also sought guidance on how to investigate and prosecute police shootings of unarmed civilians. The resulting report recommended that the state attorney general could take charge of these cases, an approach that’s been adopted in some instances.
“He’s one of most important pioneers in criminal justice reform,” Verber Salazar says, applauding Sklansky for compiling a report on an explosive issue “in a way that was methodical, well researched, and well reasoned. And the application of it was incredibly fair in order to create a solution to a complex problem.”
Sklansky had been inspired as a youth by Clarence Darrow and the idea of “standing up for justice.” After graduating from Harvard Law School, he clerked for U.S. Court of Appeals Judge Abner Mikva and then Supreme Court Justice Harry Blackmun. It was a turning point.
“I found myself getting angry at prosecutors in cases I worked on,” he recalls. “You should be able to achieve convictions and also respect constitutional rights.”
Sklansky soon became a prosecutor himself, joining the U.S. Attorney’s Office for the Southern District of California in 1987 at age 28. Over seven years, he developed a specialty in white-collar criminal cases, prosecuting one of the biggest financial fraud cases of the day: Charles Keating and the massive savings and loan scandal that fleeced thousands of investors.
Sklansky would later draw on the Keating case and his other fraud investigations to illustrate the dubious distinctions the law makes in trying to define violence. “You can do an enormous amount of damage to many peoples’ lives using a pen or a word processor instead of a knife or a gun,” he says. Using violence as a master category to distinguish crimes started in the 1960s, and today countless laws impose extra penalties for “crimes of violence.” The upshot is that more than half of American inmates are serving sentences for crimes classified as violent. If all nonviolent offenders were released from prison, Sklansky says, the U.S. would have a rate of incarceration comparable to that of Russia or Cuba but still dwarfing the imprisonment rate in virtually every other Western democracy.
Yet inconsistencies abound. Violence within domestic and intimate relationships was overlooked for too long, while assaults on prisoners are often treated as “inevitable,” says Sklansky.
Sklansky was working in L.A. when Rodney King was beaten by officers in 1991, a horrific incidence of police brutality that shocked the nation. Police departments pledged reform in the years that followed, but it was largely a charade, Sklansky says. Violence “was never understood to include people with badges,” he explains.
The King case also laid bare the racial aspect of police violence, and Sklansky’s book contends that how laws categorize violence works to encode racial bias—and explains why people of color, who make up less than 40 percent of the population, account for nearly 70 percent of prison inmates. “It’s unfortunate but true that whether we characterize something as violent often depends on the race of the person who does it,” Sklansky says.
Reforming criminal justice laws will come bit by bit, Sklansky predicts, but the first step is rejecting the notion that violence is a clear dividing line. “We need to remember that violence is an evil,” he says, “but also that there are other forms of evil in the world—and that even people who do very bad things remain people.” SL
Larry Reibstein is a journalist who has worked for Bloomberg News, Forbes, and the Wall Street Journal, among other publications.