How The ‘Violent Felon’ Label Can Unfairly Brand People for Life

Politicians often vilify so-called violent criminals. But the “violent felon” label can mean someone committed anything from a murder to a purse-snatching or verbal threat—and doesn’t line up with what science tells us about violence.

Mitchel Lensik via Unsplash

How The ‘Violent Felon’ Label Can Unfairly Brand People for Life

Politicians often vilify so-called violent criminals. But the “violent felon” label can mean someone committed anything from a murder to a purse-snatching or verbal threat—and doesn’t line up with what science tells us about violence.

This story was produced with support from The Academy for Justice at the Sandra Day O’Connor College of Law at Arizona State University.

In February 2012, 19-year-old Trenton White allegedly tried to shoot at a moving car, but instead hit an OfficeMax building in Gadsden, Alabama. White was found guilty of one count of robbery, three counts of the discharge of a gun at a building, two counts of attempted murder, and assault in the second degree. Despite shooting no one, he was sentenced to 50 years in prison.

In January, after serving 11 years, White died in a segregated unit—effectively solitary confinement—at the William E. Donaldson Correctional Facility in Jefferson County, Alabama. La’Marcus Myles was detained in the cell next to White’s. The men often talked through the walls.

“He was a real cool, chill guy,” Myles told The Appeal. “He was young and made mistakes.” Myles claims incarcerated people in segregation don’t get any water, just a cup of ice once a day that they melt down to drink. They can’t drink the water from the tap because it’s black. Myles says he has rats in his cell. “It’s just unreal,” Myles’s wife, Rhonda, said in an interview.

White’s mistake more than a decade ago certainly could have hurt or killed someone—but it didn’t. But White was given a near-life sentence anyway and eventually died in prison for a choice he made as a teenager. White’s situation is not unique: Most people languishing in America’s prison system are stuck inside cages for situations remarkably similar to White’s. But despite the fact that many politicians in both major parties have in recent years expressed a commitment to reforming the prison system or decarcerating America, alleged violent offenders like White have typically been cut out of those efforts, no matter the circumstances of their cases.

As John Pfaff wrote in “Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform,” only 5 to 6 percent of the roughly 1 million people in state jails and prisons are categorized as nonviolent drug offenders. More than half are behind bars for what are technically classified as violent offenses.

In an interview, Pfaff told The Appeal that the habit of labeling someone who may have taken part in a split-second act of violence as permanently dangerous and unfit for rehabilitation or release is harming society.

“Violence is a phase, not a state of being,” Pfaff told The Appeal. “The idea that when you do a violent act, that’s who you are—that’s at odds with basic human nature.”

Despite the fact that allegedly violent criminals make up the majority of the prison population, politicians still tend to hold up nonviolent drug offenders as exemplars of the sort of people impacted by the legal system. In 2018, former President Donald Trump—far from a “soft on crime” politician—granted clemency to Alice M. Johnson, a grandmother serving a life sentence for a nonviolent, first-time drug offense. She was released later that year. During the COVID-19 pandemic, politicians also deprioritized or fully carved out violent offenders from early release programs designed to help with social distancing. In 2021, President Joe Biden launched a project to grant clemency to many of the people released during the pandemic—but stated that only nonviolent drug offenders were eligible.

But the majority of people trapped in prison typically look far more like Corey McCullough, who took part in a 2003 weed deal that left a man, Ean French, dead. At McCullough’s trial, another man testified that he was the one who shot and killed French—not McCullough, who was not at the scene at the time of the murder and had no prior knowledge the shooting would take place. Despite this, prosecutors pursued murder charges and successfully tarred McCullough as a permanently violent individual. After they stacked his previous charges for nonviolent drug crimes, McCullough was sentenced to 60 to 99 years. He recently had a clemency petition rejected and, due to the seriousness of what he was ultimately accused of, finds himself in a bizarre conundrum: Officials like to hear contrition, not claims of innocence.

“When you’re trying to get a pardon or a commutation the powers that be don’t want to hear that you’re innocent, they look at that as if you’re not taking responsibility for your actions,” McCullough told The Appeal.

The FBI, which acts as the nation’s clearinghouse for arrest statistics, lists four categories that count as so-called violent offenses: robbery, aggravated assault, sexual assault, and murder. While the latter two charges are inarguably serious, the majority of the nation’s allegedly violent offenders sit in prison for the former two categories, which are flimsily defined and easily abused by prosecutors. “Aggravated assault,” for example, can mean an act of severe physical violence—or simply displaying a weapon “in a threatening manner.” In 2020, an 18-year-old Utah resident named Gavin Johansen, for example, was nonfatally shot by law enforcement and charged with “aggravated assault on a peace officer” for simply pointing a realistic airsoft gun at a police officer without firing it.

Robbery, too, is vaguely classified. The FBI defines a violent robbery as “taking, or attempting to take, anything of value under confrontational circumstances from the control, custody, or care of another person by force or threat of force or violence and/or by putting the victim in fear of immediate harm.” Misconstrued verbal threats or a particularly forceful purse-snatching could lead to someone being labeled a “violent” criminal for life. That is not a hypothetical: Earlier this month, a 21-year-old man in Ohio was charged with felony robbery after knocking an elderly woman to the ground while trying to steal her handbag.

Even when it comes to more serious charges, the lines are arbitrary and calcified by legalese. Someone labeled a murderer may have stalked and killed another person—or been charged with “felony murder,” a set of laws that allow prosecutors to hold people responsible if, while they are committing a separate felony like a burglary, another person happens to die or be killed by a third party.

Worse, the legal distinctions between violent and nonviolent crime vary by state and are also different at the federal level, leading to a confusing patchwork of classifications.

New York State defines burglary of a store as nonviolent, but burglary of a residence as violent. That means that if someone steals a package from a porch, they might be deemed a violent criminal. Meanwhile, in both New York and California, “negligent homicide”—often resulting from reckless driving—is considered nonviolent, even though it causes a death.

Federally, the FBI does not classify burglary as a violent crime—even though New York State does in some cases. That changes the data. According to federal authorities, 55 percent of people in federal prison are incarcerated for violent crimes. In New York State, that number is far higher—because more offenses, like burglary, are defined as violent.

Beyond the legal distinctions, there’s the perception—especially among politicians and the media—that a violent crime makes someone a violent person who’s irredeemable. Pfaff pointed out that car insurance companies have more sense than politicians, in that the most expensive driver to insure is a 16-year-old boy, since children are less experienced drivers and more prone to making rash decisions.

“Yet 55-year-old politicians—who would have no trouble getting car insurance—act like people don’t change,” Pfaff said.

But these inscrutable distinctions have life-and-death consequences for people accused of violent crimes—they are typically given longer sentences and denied clemency at higher rates. At the federal level, the U.S. Department of Justice’s clemency petition guidelines state that for people imprisoned for violent felonies, “a suitable length of time should have elapsed” before a pardon or commutation “in order to avoid denigrating the seriousness of the offense or undermining the deterrent effect of the conviction.” The guidelines suggest that federal officials will more likely grant clemency in cases where the offense was “very old and relatively minor.”

Even Democrats who say they’re committed to prison reform have shied away from releasing anyone tagged with a “violent” label. President Barack Obama’s clemency initiatives commuted or pardoned 1,927 people’s sentences—the highest total since President Harry Truman. But Obama’s initiatives focused almost exclusively on people convicted of nonviolent drug charges.

Politicians who do grant clemency to “violent” individuals are often tarred as anti-public-safety. In 2019, Kentucky Governor Matt Bevin, a Republican, granted more than 600 pardons and commutations, including for violent crimes where the imprisoned person had shown growth and change. Bevin said he was guided by Christian lessons of forgiveness.

“I’m a big believer in second chances,” he told the Washington Post that year. “I think this is a nation that was founded on the concept of redemption and second chances and new pages in life.”

The commutation list was not without some issues—95 percent of those Bevin pardoned were white and one person pardoned was the relative of a large campaign donor. But Bevin’s detractors, mostly prosecutors on some of the cases, painted the governor as coddling murderers and insulting the memories of their victims.

“What this governor did is an absolute atrocity of justice,” one local prosecutor told the Post. “He’s put victims, he’s put others in our community in danger.”

Bevin’s acts were highly sensationalized in the media. Most notably, the Louisville Courier Journal won a Pulitzer Prize in 2020 for a story critical of the clemency actions, despite the fact that more than two dozen legal and public health scholars sent an open letter to the Pulitzer board begging the committee not to give the piece an award—especially amid the first wave of the COVID-19 pandemic.

“Lifting up this type of coverage of criminal justice issues is especially harmful at a time like this, when those in overcrowded prisons and surrounding communities are increasingly vulnerable to the devastation of COVID-19,” the letter stated. “Rewarding this kind of coverage risks discouraging leaders to use their clemency power to save lives.”

The sensational criticism did have real impact: After Bevin left office, the Kentucky legislature passed a bill restricting when the governor is able to commute or pardon sentences.

It took years of activism for Michael Thompson, serving 40 to 60 years in prison for selling weed in Michigan, to get clemency from Governor Gretchen Whitmer—even after the drug became legal in that state. Thompson’s release in 2021 was presented as a triumph, an uncontroversial and fully just outcome. But Whitmer’s office had been aware of his case for years, and activists pushed people to inundate Whitmer’s office with letters. In those years, Thompson had a severe bout of COVID and recalled having to wash his clothes in the toilet, among the many indignities of prison.

During that time, Thompson’s friend on the inside, Robert Cannon Jr., was desperate for his freedom too. As a teenager, he’d gotten into a fistfight, and the other man had died. The Michael Thompson Clemency Project, a nonprofit started by Thompson, was trying to secure his freedom. While Thompson was inside, he and Cannon discussed politics and current events and helped plan a special celebration to honor George Floyd, who’d recently been killed by Minneapolis Police officers. Thompson could attest to how much his friend had changed. Cannon got multiple certificates behind bars and counseled other men. He loved to read and write poetry. He was hopeful he’d walk out a free man someday. But Cannon had been labeled a violent offender. On August 19, 2021, Cannon died in prison at the age of 62.

“This is too little too late for him, hopefully other people can be helped by his story,” his fiance, Delores Ingram, wrote on his testimonial page on the clemency project’s website. “Everybody loved him; he always helped and inspired people. He was an asset to society even while incarcerated.”

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