Ari Armstrong, Civil Liberties, Coronavirus, Criminal Justice, Exclusives, Legal

Armstrong: Violence, incarceration and COVID-19

Constitution-loving conservatives should be sensitive to concerns that exposing prisoners to COVID-19 may strain the Eighth Amendment’s prohibition of cruel and unusual punishments. Surely it is cruel to needlessly subject someone to the terror of catching a disease that easily could result in a slow and painful death, especially for those with preexisting conditions.

And yet, ever since the 1988 “Willie Horton” ad against presidential candidate Michael Dukakis, early release of prisoners has been a political hot potato. Governor Jared Polis got bit in the backside when his COVID-19 policies resulted in the early release (by a few months) of Cornelius Haney, who then allegedly murdered a young woman in Denver. It’s a horrible story.

Our present circumstances, as challenging and sometimes traumatic as they are, present an opportunity to reexamine some long-standing practices, including the ways our government uses incarceration to punish criminals. I don’t even need to ask whether we can do better, because anyone with open eyes knows that our prison system is badly broken.

But fantasies won’t help. Some people on the left seem to think that we can Kumbaya the violence out of people. If we just give people enough welfare, drug treatment, counseling, and “free” education we won’t have to worry about crime anymore.

I’m not disputing that poverty and addiction and ignorance contribute to violent crime, or that alleviating those underlying problems (we can debate the appropriate means) can curb crime. But at a certain point, criminal behavior arises from inside the person and has to do with a person’s choices and developed habits; it is not basically a matter of external conditioning. Some violent people we need to lock up for our own safety. The trick is to lock up people for the right reasons, for the appropriate duration, and in a suitable way. Too often we fail on each of those points.

Obviously we should not treat incarceration—locking people in cages—as a political weapon. Short of killing a person, which is now off the table in Colorado in terms of intentional policy, locking a person in a cage is the most severe depravation of liberty that our government can impose on someone. When and if it is done it should be done soberly and with with both eyes toward justice and public safety, not with one eye askance at political mudslinging.

Consider a thought-experiment. Let’s say a government imposed life in prison without parole for every single criminal offense, from stealing a pack of gum to brutally murdering multiple people. All of us would recognize such a system as horrifically unjust. There is such a thing as overpunishment, and it violates both the precepts of justice and our Bill of Rights.

Now imagine that a political reformer in these circumstances proposed scaling back prison terms for most offenses and even started releasing many current prisoners “early”—prior to dying in prison. You can see the political problem here. Inevitably, some of the people released “early” would commit other crimes, up to and including murder. And in the next election cycle this would result in a slew of “Willie Horton”-style ads and in renewed calls for “law and order.”

So whatever the status quo is in prison sentencing, however unjust and irrational, politicians often have a hard time scaling back sentences. At the same time, voters often reward politicians who get “tough on crime” and propose lengthier prison sentences, especially for whatever causes the moral panic of the day.

Given this dynamic, although we don’t have anything like life sentences for all criminal offenses, we can reasonably wonder whether our existing prison sentences are in many cases unjustly long. I think it’s obvious they are.

At the same time, I worry about using the COVID-19 crisis to try to remedy some of the long-standing injustices of the criminal system, which is self-consciously an aim of the state ACLU. In a heartstring-pulling video, the ACLU urges the early release of Ronald Jonson. Activist Elisabeth Epps says in the video, “Covid is really showing us that the systems we’ve relied upon have not worked. We wouldn’t be in a position now [if we’d had reforms], where we have this same level of the public health crisis, because we wouldn’t have people in cages for poverty, for sleeping on park benches, for being addicted to substances.”

I agree that Johnson seems a worthy candidate for early release, but if so he should be released regardless of the pandemic. He has either turned his life around or he hasn’t. He is either currently a threat to public safety or he isn’t. Whether he has already been in prison for too long, as seems likely—22 years so far—is independent of the pandemic.

Of course there are alternatives to prison and total freedom, such as in-home detention with an ankle bracelet, monitored probation, and so on. Generally I think government should turn to such alternatives more frequently anyway. It makes sense to me, given the emergency of the pandemic, to transfer some people from prison to in-home detention or the like, at least temporarily.

A weakness with Epps’s case is that she casts Johnson’s offense as a “non-violent crime.” Well, he went to prison for “theft, forgery, fraud and drug possession,” as Westword notes. Three of those things are types of violence.

As I noted in my recent column on vandalism, some people on the left have some funny ideas about what constitutes “violence”—some don’t see smashing out a store’s windows or burning down a building as violence, so long as no one gets directly physically hurt.

Sure, we can and should distinguish types of violence. Physically harming a person generally is worse than damaging or taking a person’s property. That said, I’d much rather someone punch me in the face than burn down my house, if I had to choose.

Damaging or taking others’ property harms the victim. Economist Steve Horwitz eloquently summarized the problem with vandalism, especially the extreme property damage we’ve seen of late: “Destroying a small business is akin to destroying an artist’s studio, a scholar’s library, or a chef’s kitchen. It’s not just a loss of material goods. . . . It’s where they make meaning in their lives and for others, and where their life projects are pursued.”

The other obvious problem is that destroying or taking others’ stuff easily can lead to physical conflict. Yet consider how the ACLU describes the crime of James Cranfill, another person the ACLU suggests for early release: “James has served seven years in prison for robbing a bank. He had no weapon, and no one was hurt. According to news reports, James walked into the bank, handed a piece of paper to the teller demanding money, the teller gave him the money and James left. He was later arrested after being identified in security footage. Though it does not justify his actions, James’ crime was non-violent, and driven by desperation and poverty.”

Calling a bank robbery “non-violent” is just crazy. It is definitely relevant that Cranfill did not physically hurt anyone or even try to do so. But the reason the bank teller handed over the cash is that Cranfill implicitly threatened physical violence. The teller didn’t know whether Cranfill had a gun or a knife or some other weapon in his pocket or waistband. The teller didn’t know whether Cranfill would use his bare hands or some nearby blunt or sharp object as a weapon. Undoubtedly the teller was terrified. Cranfill relied on fears of such outcomes to get the cash. Threatening physical harm is a form of violence.

If we want to have a discussion about whether Cranfill could serve in-home detention or the like without further threat to public safety, fine. Bank robbery is a serious offense—and seven years is a long time to spend behind bars. But let’s not pretend that robbing a bank is “non-violent.” Such blatant evasions of reality only get in the way of sensible reforms.

In the aftermath of the COVID-19 pandemic, a lot of us will rethink a lot of things, such as how we shop, work, socialize, and find entertainment. This is also an excellent time to rethink our government’s treatment of criminals—especially if we take seriously the spirit of the Eighth Amendment.

We can and should do this while squarely reckoning with the very real damage done by crimes against people and their property.

Ari Armstrong writes regularly for Complete Colorado and is the author of books about Ayn Rand, Harry Potter, and classical liberalism.  He can be reached at ari at ariarmstrong dot com.

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