PWNP Talk: "A Case for the Legal Irrelevance of Violence"

Wed, Apr 10, 2019, 4:30 pm to 6:00 pm
201 Marx Hall


The criminal law, other legal and political institutions, and efforts aimed at reforming those institutions all mark a significant difference between transgressions that are violent and those that are non-violent.  Violent crimes are typically met with more severe punishments and collateral consequences than non-violent crimes—even when the violent crimes plausibly cause less harm.  Many focusing on criminal justice reform make their case by pointing to the very high numbers of people incarcerated for *non-violent* offenses, suggesting that this is where the real problems and injustices are found, and offering reform proposals that would significantly alter the treatment of non-violent offenders–with the implicit or explicit suggestion being that things should stay perhaps roughly as they are for violent offenders.  For example, the 2016 United States Sentencing Commission Report to the Congress on Career Offender Sentencing Enhancements makes the case that sentencing enhancements should only be triggered by crimes of violence, and that they should no longer be triggered by convictions for drug trafficking.  In this paper, I argue (1) that the violent/non-violent distinction cannot bear the normative weight currently placed on it, and (2) that we should jettison thinking in terms of violent crime and move to thinking in terms of degrees of harm caused and harm risked.  I argue that, if we do this, many of our current practices of sentencing and punishment would require revision, and that we should make those revisions.  I conclude by offering an error theory regarding our normative judgments regarding violence and punishment, one that explains both retributive and deterrence-based judgments about violent crime, and shows both kinds of judgments to be based on mistaken presuppositions about violence.   

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