Stanford’s David Sklansky on the Classification of Violent Crimes, Racism, and Mass Incarceration

A Discussion of the New Book A Pattern of Violence: How the Law Classifies Crimes and What It Means for Justice

Stanford’s David Sklansky on the Classification of Violent Crimes, Racism, and Mass Incarceration

The ways in which crimes are classified—as violent or non-violent—and the advent of a differential with one requiring much more serious punishment, largely parallels the increase of incarceration rates in the United States and accompanying racial disparities of those in prison. But how and why this classification of violent crimes came to be embraced in law—and whether it makes sense—are important and urgent questions raised by David Alan Sklansky, Stanley Morrison Professor of Law and the faculty co-director of the Stanford Criminal Justice Center, in his new book A Pattern of Violence: How the Law Classifies Crimes and What It Means for Justice.

“It turns out to be a relatively recent thing. Up until about 1960, no one thought that you could divide up the universe of criminality cleanly by distinguishing between violent offenses and non-violent offenses. And it wasn’t that they thought ‘Oh, murder isn’t any worse than picking someone’s pocket.’ It’s that nobody thought that you could easily draw a line between the offenses we would call violent and the ones we wouldn’t call violent. And they were right. Because when you look at the way that the law categorizes violent versus non-violent offenses today, a lot of it is surprisingly arbitrary,” says Sklansky, a former federal prosecutor.

Sklansky offers the example of burglary versus assault. “Burglary is almost always classified as a violent offense in the United States, even if no one is hurt and even if nobody is present when a house is broken into,” he explains.

On the other hand, most assaults are not treated as violent felonies because they’re not treated as felonies at all. Indeed, Sklansky notes that assaults almost everywhere in the United States are classified as misdemeanor—relatively menial offenses—unless a deadly weapon is used, or serious bodily harm is caused. And that whether a weapon is deadly and whether harm is serious, turn out to be very subjective decisions as well.

“There are cases where people have been beaten over the head with iron grates and sent to the hospital for multiple stitches, and that assault isn’t treated as a felony because the injuries aren’t thought to be serious enough,” he explains. “Same thing with a decision about whether something is a violent weapon or not and a deadly weapon or not. There are cases that say that if you kick somebody with a boot, that’s a deadly weapon.”

Professor David Sklansky
SLS Professor David Sklansky

Sklansky traces the classification of crimes as violent back to the 1960s. “That’s when lawyers, judges, and legislatures started to distinguish between violent offenses and non-violent offenses. That’s also when people started talking about violent crime as the kind of crime that most needed addressing.”

In the 1980s, when the war on drugs picked up, drug offenses were often classified as violent, even if no actual contact violence took place. “That’s partly because drug crimes were thought of as racial minority crimes at the time. The crack cocaine epidemic was widely associated in the public mind with African Americans. And drug trafficking was treated as an almost inherently violent activity,” he explains. “Nowadays, of course, drugs don’t have that racial sheen associated with them. And drug offenses are kind of the paradigmatic, non-violent offense. And as reformers pushed for more lenient treatment of drug offenses, they generally distinguished them from violent offenses,” he explains.

But the subjective and often blurry distinction between violent and nonviolent offenses means that the line-drawing is often influenced by racial bias.

“The thing is, the pattern isn’t just arbitrary and chaotic, it reflects and re-inscribes patterns of racial and class bias,” he says. “Part of it is that when offenses tend to be associated, in the public mind and in the legislature’s mind, with racial minorities, they’re more likely to be categorized as violent, and treated as violent. That’s what happened with drug offenses in the 1980s, and it’s part of why juvenile crime began being treated as serious violent crime at around the same time. The super-predator scare was a heavily racialized scare revolving around the worry that juveniles—that juvenile offenders—were becoming much more violent. And that was a heavily racialized fear.”

Read Sklansky’s TIME op-ed “How We Define Violent Crime in America Shapes Who Gets Punished for It—And Who Doesn’t”

Looking forward, Sklansky recommends a rethinking of how crimes are classified and a more nuanced approach to penalties.

“I think that there are lots of characteristics of crimes that we use to distinguish as more serious from less serious offenses. And whether the crime involves physically injuring somebody often will help us distinguish crimes that are more serious from less serious. But there are other things that are relevant there too,” he says.  “When you think about violent hate crimes, for example, one of the things that becomes clear is that there’s often a continuum between forms of hate and targeting of people that don’t seem to be violent, and things that we would call violent. This is the same thing that advocates for victims of domestic violence have been stressing for a long time—that there can be a continuum between forms of coercive control that don’t actually involve laying hands on anyone, and forms of domestic abuse that escalate to homicide. And one cost to drawing a sharp line to violence is that you can miss those connections.”

To learn more about A Pattern of Violence: How the Law Classifies Crimes and What It Means for Justice, list to Sklansky’s interview on Stanford Legal on SiriusXM