Three Reasons Advocates Must Move Beyond Demanding Release for “Nonviolent Offenders”

We must stop legitimizing incarceration for one group while advocating against it for another.

Covid-19 has presented a crisis — one that’s especially visible in prisons, jails, and detention centers, where an inability to social distance, daily regimes of brutality, and persistently unsanitary conditions make incarcerated people particularly vulnerable.

Many have identified that the risk of coronavirus spreading through punishment facilities does not just threaten those on the inside (though even if this were the case, it should be reason enough to take action). Instead, with prisons and jails quickly becoming epicenters of the crisis, everyone is at risk: prison employees and newly arrested individuals carry the virus in and out each day, and everyone faces the prospect of overwhelmed hospitals as the virus sweeps through the country’s cages.

In response, advocacy non-profits, community groups, and public defenders have jumped into action, demanding everything from aggressive sanitation practices to the release of individuals. With the exception of abolitionist groups, however, demands for release have overwhelmingly focused on those charged with or convicted of nonviolent offenses, and especially those who “pose no threat to public safety” — those who are “low risk.”

The ask is understandable, and in general, the product of well-intended advocates who genuinely want to maximize releases. Because the idea that those in prison are dangerous runs so deep, it appears strategic, achievable, and even commonsensical to ask for the release of those who are not labeled dangerous. Surely, advocates reason, this demand is an easy one to grant, and thus the right one to make.

Analyses of and experiences with organizing against the punishment system suggest otherwise. Abolitionist scholar-activist Ruth Wilson Gilmore writes:

The way the system works is to move the line of what counts as criminal to encompass and engulf more and more people into the territory of prison eligibility…So the problem, then, is not to figure out how to determine or prove the innocence of certain individuals or certain classes of people, but to attack the general system through which criminalization proceeds.

In other words, the goal of our organizing must not be to identify the “good guys,” or the people who don’t “deserve” to be in prison — it must be, at all times, to reject the logic and practice of criminalization, which says that an enormous number of poor, Black, and Brown people must be sequestered away in punishment chambers in order to keep “us” safe.

This article is an attempt to provide well-intended advocates with concrete reasons to demand more, arguing that ultimately, advocating only for those with nonviolent offenses, or for those identified by a risk assessment tool to be “low risk,” is wrong for three reasons: it’s misinformed, unstrategic, and enduringly harmful.

Misinformed

Risk is not an identity.

We live in the risk assessment era, where risk assessment tools are used to determine everything from who is detained pretrial to who is released at the end of a sentence.

Living in the risk assessment era has warped our understanding of humanity. The risk assessment paradigm tells us that risk, or dangerousness, is something that resides within a person — and that risk categorizations can tell us the likelihood of one’s inner dangerousness manifesting externally. This is why the words “threat to public safety” slip so easily from our lips: in the risk assessment paradigm, the primary problem does not lie in unsafe conditions, precarious living situations, or highly specific moments that might require deeper investigation and understanding, but rather in risky individuals. Risk assessment transmutes societal harm into individual threat.

But, put simply, risk is not an identity. It’s not a trait. Despite the language deployed by carceral officials — “this person is high risk,” “we can only release those who are low risk” — riskiness does not reside within a person. Most people don’t consider the implications of calling another human being “high” or “low” risk until this is pointed out — and certainly, wealthy white parents would not settle for their children being called risky.

Instead, our existing conditions produce risk, and create the potential for harm. Being unsheltered, without food, unable to afford adequate health care, hyper-policed, and criminalized — these things create risk. Living under an economic system that puts profit before people, that rewards and celebrates massive accumulation for a few at the expense of many — this produces danger. Being trapped within a massive network of police and prisons that shortens lives on a daily basis— this constitutes massive harm.

Even the phrase “risk to public safety” is misleading. Risk to which public, and to whose safety? The phrase implies that to release someone from prison is to invite a new risk into an otherwise-fine social landscape. But what about the risk and precarity people live in every day? The risk of living paycheck to paycheck, of not being able to afford an unplanned medical expense? What about the risk of violence and sexual assault that people in prison face every day? Are you as outraged about these risks as you are about the idea of someone leaving a cage?

Yes, some portion of those who are released from prison might commit an act that could land them back in prison — that act might be harmful, or it might not be. Just as those outside of prison might commit an act that could land them in prison (or, just as frequently, and especially for white folks, commit an act of harm that does not land them in prison). But if you’re looking to minimize harm, there are countless better places to begin. Most obviously, we could begin to reduce all people’s risk of harm by ensuring everyone has the resources necessary to survive — in this time, and at all times — and by continuing to build methods of responding to harm that do not include prisons.

Rather than asking whether someone is risky, here is a better set of questions to ask:

Why do you view this particular person as a “risk”? What risk do they pose to which specific person? What are the needs of this person, and how might those needs be met such that you don’t feel this person poses a risk to you or someone else? What other steps could be taken to reduce the likelihood that this person will cause harm to another person? What are all the other risks you and others face because of the way our government has responded to this crisis and operated in general? Are you as upset about those? What if it was a relative of yours who had gotten arrested or was in prison? What if it was your child? Do you believe that once someone has committed harm once, that they will inevitably commit that same harm again, and immediately? Do you believe that about yourself?

Offense Categories are Slippery

Even if you want to look to a previous instance of someone causing harm to predict their future likelihood of doing so, offense categories are a terribly misinformed place to start. Likewise, even if you were to accept that someone who has just done something very harmful needs to be separated from a person or their community for some period of time (which I certainly do not believe should happen through cages), it still does not make sense to categorize by violent and nonviolent.

The carceral state flattens human complexity in many ways. And within the last couple decades, categorizations of “nonviolent” vs “violent” have been particularly stark flatteners. But the problem of these categories is twofold: first, they are misleading in terms of the various behaviors that fall into each bucket, and second, they lend a sense of legitimacy and objectivity to ongoing racial disparities. Let’s take these claims one at a time.

First, the “violent offense” category covers a wide range of behavior, some of which many of us wouldn’t even consider violent. To take one extreme example, in some states lending a car to a friend who ends up using it to commit a murder can land someone in prison for life. But the inaccuracy cuts both ways; with most convictions resulting from plea bargains, even many of those who plead to “nonviolent” offenses might have done something we would consider violent. In other words, offense categories don’t tell us as much as we think they do.

The point of this is not to say that we should better identify who has “actually” done something violent. Instead, it is to say that crime categories are slippery, and even when we narrow down to specific offenses, they cannot possibly tell us what happened, why, and what might prevent something similar from happening in the future.

Second, there’s a strange, often unspoken belief among those who are willing to call the criminal legal system racist that the system suddenly becomes un-racist as soon as it comes to “violent crime” — as if they’re two different systems. Whereas calling for the incarceration of “nonviolent drug offenders” is recognized as racist, the incarceration of “violent offenders” has been near-universally accepted as objective — after all, the crime was “violent”!

The label of “violent offender” conjures an always-racialized image of a group of menacing (read: Black) people who will go on a violent rampage as soon as they are released. It is important to name this. And despite the myth that racial disparities exist only because of enforcement of low-level, nonviolent drug offenses, we see similar racial disparities in offenses categorized as violent as we do nonviolent. Even still, many of those who are willing to use racial disparities for drug offenses as evidence of racism are unwilling to do the same for those convicted of violent offenses.

Reformers need to reckon with the fact that asking for release according to offense categories is an implicit endorsement of a deeply-misinformed categorization of people — an affirmation that some people deserve freedom more than others, and that we can use the designations from the very legal system we call racist to make that determination.

Unstrategic

The line of thought behind well-intended demands which ask for relatively little is that we should only ask for what we think those in power are likely to grant. In other words: what do we think we can get?

But as legendary organizer Mariame Kaba recently said, “You have to ask for the impossible to get the half possible. Don’t pre-compromise yourself, and then call something a victory that you didn’t even want in the first place.” Strategically, it doesn’t make sense to ask only for what we think we can get — because we never get it all anyway. The lower we set our bar, the less we win.

Take an example: at the state level here in Georgia, much like in other states, many fantastic and well-intended advocacy groups have asked for the release of those with nonviolent offenses alongside aggressive sanitation procedures — very “reasonable” requests. Guess what we’ve gotten? The Georgia Department of Corrections has partially complied with the most easily-met demand — better sanitation practices — and committed to releasing “up to” two hundred people over the course of the next thirty days.

For context, there are 54,000 people incarcerated in Georgia prisons. Two hundred people over thirty days is not even a drop in the bucket — it’s a particle in the droplet.

So if we want people free — or even if, for some terrible reason, the only people you truly want free are those with nonviolent offenses — we have to ask for more.

This isn’t to say that our only strategy must be to demand the immediate closure of every prison. While the ongoing call is always to #FreeThemAll, we can also set our sights on finer-grained demands that achieve freedom for people and build power in the meantime, without making our work harder in the future. As Keeanga-Yamahtta Taylor writes:

Demanding everything is as ineffective as demanding nothing, because it obscures what struggle looks like on a daily basis. It can also be demoralizing, because when the goal is everything, it is impossible to measure the small but important steps forward that are the wellspring of any movement.

While the immediate closure of all prisons would be great, it’s probably not going to happen in the next several months. Instead, this is a call not to let our demands be hampered by what the opposition says is possible.

Prison officials and politicians are swimming in the language of risk. They will confidently tell you who is a “risk to society,” who still needs to be “held accountable” by remaining in a cage, and who is simply too threatening to be considered for release.

But we don’t need to meet them on those terms. We don’t need to let our vision of freedom be constrained by the people who make freedom seem so impossible. We don’t need to pre-compromise ourselves before we’ve even entered negotiations. Why come to the negotiating table having already conceded that a major swath of the imprisoned population need not be considered for release? How does that set us up to win?

We don’t need to let our vision of freedom be constrained by the people who make freedom seem so impossible.

Instead, here are some demands from abolitionists that don’t meet the cagers on their terrain, which would constitute serious wins even if not fully met:

  • Release all pre-trial detainees (believe it or not, we can hold the line on “innocent until proven guilty”).

Harmful

Makes freedom less likely in the long run

Advocating for release on the basis of “risk to pubic safety” is a concrete affirmation that risk is an identity, and that a huge bulk of people in prison are rightfully there. To affirm or collude with risk categorizations is to confirm that the release of many hundreds of thousands of people is undesirable — that it would put “us” at risk.

A core tenet of the prison abolition movement is “don’t advocate for things you’ll later need to advocate against.” So for abolitionists, it feels rather straightforward that we wouldn’t want to legitimize incarceration for some while advocating against it for others.

But even advocates who want to end mass incarceration but aren’t yet on board with abolition won’t get very far without turning their energy toward those with violent offenses: 55% of those in state prisons are there for “violent” offenses. We could release every “nonviolent offender” and still have mass incarceration.

The most frequent pushback to this is: well, let’s go for the low-hanging fruit of “nonviolent offenders” now, and we’ll get to “violent offenders” later.

Though perhaps well-intended, that’s not how it works. Besides being misinformed and unstrategic, as outlined above, carving out exceptions based on state categorizations of those in prison reinforces the very structure that keeps people unfree. It affirms a core popular belief that abolitionists work to disrupt: that prisons keep us safe — that it is, in fact, necessary to keep those with “violent” offenses, nearly 900,000 people, behind bars.

Ruth Wilson Gilmore notes that “many advocates for people in prison…have taken a perilous route by arguing why certain kinds of people or places suffer in special ways when it comes to criminalization or the cage.” Reformers have, Gilmore explains, continually pushed a list of people who supposedly “don’t belong” in prison for any number of reasons, including offense category. But, as Gilmore explains, this does two things:

First, it establishes as a hard fact that some people should be in cages…And [second,] it does so by distinguishing degrees of innocence such that there are people, inevitably, who will become permanently not innocent, no matter what they say or do.

Empirical outcomes have matched theoretical warnings. Indeed, advocating for the release of only “nonviolent offenders” while affirming the incarceration of “violent offenders” has not only been harmful on a rhetorical level; in fact, it has manifested statutorily on a devastating level in recent decades.

Several scholars have shown that we live in an era of “bifurcated” crime policy, wherein penalties are generally decreasing for the lowest level offenses, while expanding for offenses categorized as violent. My own research on New Jersey argues that we live in an era of tough-on-violent-crime politics, which has legitimized and expanded punishment for some while purporting to lessen it for others. Though “criminal justice reform” is more popularized than ever, policymakers at all levels are cracking down even harder on “violent crime,” cementing the United States as a prison nation for decades to come.

Any advocacy that endorses this dynamic is enduringly harmful.

Crises open up new possibilities. Just a couple months ago, who would have thought that the U.S. government would be sending everyone checks for $1,200?

The daily brutality of mass criminalization leaves no room for strategies that prioritize “low-hanging fruit.” This is even clearer to see with the arrival of coronavirus. State categorizations of individual riskiness do not correspond to individual susceptibility to the virus — meaning that advocating only for the release of some vulnerable people (e.g. “release anyone over 60, so long as they’re low risk) is endorsing the infection of many others.

Perhaps most importantly, people inside prisons hear our calls for releases. Many of us have friends and loved ones in prisons who are convicted of “violent offenses,” and these folks recognize when they are excluded from from advocates’ concerns for health and freedom. How can we claim to be a movement in solidarity with those in prison while ignoring over half of those behind bars?

If we refuse to ask for the release of those with violent offense convictions in the midst of this pandemic, there’s no reason to believe we ever will.

Now, more than ever, we cannot affirm the misguided and racist notion that risk resides within people; we cannot make the strategic error of asking for so much less than we want; and we cannot risk reinforcing the harmful system we fight against daily.

If we refuse to ask for the release of those with violent offense convictions in the midst of this pandemic, there’s no reason to believe we ever will.

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Image by Micah Herskind

Written by

abolitionist. tweeting @micahherskind.

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