The criminal legal system treats incarceration as an acceptable default, even when the offense did not involve physical harm to another person. That assumption is rarely interrogated.
Prison is not a neutral holding space. It is an environment structured around control, deprivation, and exposure to violence. When the underlying conduct is nonviolent, the state is not responding to inflicted harm. It is choosing to introduce harm when it sends someone to prison.
That is a world-shattering choice for the person and their loved ones; one that should require data and justification before harm is intentionally inflicted.
Instead, the burden quietly runs in reverse. Defendants are expected to explain why they deserve mercy. Prosecutors are rarely, if ever, required to explain why the trauma they are intentionally requesting is necessary at all.
Trauma Is Not Collateral. It Is Predictable.
Courts often describe incarceration’s harms as collateral. They are anything but.
Prison predictably produces emotional injury, psychological destabilization, and increased risk of physical harm. Family separation, loss of housing, employment barriers, and long-term health consequences, including serious mental health deterioration, are foreseeable results. They are not anomalies.
When judges and prosecutors knowingly expose nonviolent individuals to these conditions, when they knowingly destabilize lives through incarceration, they are intentionally imposing additional harm that did not exist in the original offense.
That reality should matter in sentencing analysis.
When a judge knowingly imposes these harms on someone who did not commit a violent act, the state is making a conscious policy decision. Trauma is the punishment.
If proportionality still matters at all in sentencing, that fact cannot be ignored.
The Missing Framework: An Impact Prong
If incarceration is justified as a public safety measure, courts must account for the harm it affirmatively causes.
A principled sentencing framework would require prosecutors to satisfy an impact prong. This prong would require demonstrating that the emotional and physical harm imposed by incarceration is proportionate to the offense and justified by necessity.
Courts should be required to consider:
- The foreseeable emotional and psychological impact of incarceration
- The risk of physical harm inherent in custodial settings
- The effect of incarceration on family stability and dependents
- Whether the imposed harm exceeds the nature of the underlying conduct
Without this analysis, sentencing intentionally ignores half of the equation.
A Two-Prong Test for Nonviolent Incarceration
For nonviolent offenses, incarceration should require satisfaction of a two-prong test placed squarely on the court.
Prong One: Demonstrated Danger
The state must present individualized, evidence-based proof that the defendant poses a concrete risk of serious harm to others. Generalized assertions of deterrence or moral blameworthiness are wholly insufficient. Provide evidence, or refrain from cluttering the record with falsehoods and grandstanding entirely. Save the performance for community theater.
Prong Two: Impact Justification
The state must demonstrate that the emotional and physical harms of incarceration are proportionate and unavoidable. This requires showing that less restrictive alternatives cannot adequately mitigate the identified risk.
Failure on either prong should preclude a custodial sentence.
Why Public Safety Claims Collapse Without This Test
The system routinely incarcerates people whose conduct reflects addiction, poverty, administrative noncompliance, or economic survival. These individuals are then released more traumatized, less stable, and more disconnected than before.
If incarceration increases the likelihood of future harm to people, families, and communities, it cannot ever be framed as public protection. Destroying future generations could never be justified under the guise of public safety.
A sentencing framework that ignores the harm it creates is not managing risk. It is intentionally manufacturing it.
Proportionality Requires Accounting for State-Caused Harm
Sentencing analysis claims to consider proportionality. But proportionality cannot be assessed solely by looking backward at the offense. There are judges who ignore this entirely or perform mental acrobatics to justify harm.
Proportionality must also look forward at what the punishment will do.
When the state spends taxpayer dollars to be cruel, when it inflicts emotional and physical injury as a completely foreseeable consequence of punishment, that injury becomes part of the sentence itself. Ignoring that fact is not neutral. It is the intentional distortion of justice and legitimacy.
And willfully ignorant judges and prosecutors should not be allowed to impose punishment they have never experienced and do not understand. Mandatory overnight prison stays and regular trauma-informed training should be prerequisites to sentencing authority.
What Is Missing: The Burden of Proof
In nonviolent cases, incarceration should never be presumed appropriate by default. It should be justified.
A rational framework would require prosecutors, when making sentencing recommendations, to present evidence that a person poses a danger to public safety that cannot be addressed through less destructive means. That showing must be individualized, evidence-based, and placed on the record.
Not general deterrence rhetoric, not moral disapproval, not courtroom theater; actual risk.
Without that burden, prison functions as punishment for perceived character failure rather than a tool for legitimate public protection. It becomes a production designed to pad numbers and create the illusion of safety while the state pays its actors to destabilize communities.
What a Principled Sentencing Standard Would Require
A credible sentencing framework would begin with a presumption against incarceration for nonviolent offenses. To overcome that presumption, the prosecution would need to prove:
- A concrete risk of serious harm
- That the risk is specific to the individual
- That less restrictive alternatives absolutely cannot mitigate it
Prosecutors and judges should be required to explain, with evidence, why destroying stability, families, and communities is necessary. Absent that showing, incarceration is not safety. It is cruelty and excess.
Why This Matters
The power to cage another human being is among the most extreme authorities the state exercises outside of capital punishment. Using that power without demonstrating necessity corrodes the legitimacy of the system itself.
Nonviolent sentencing should not be governed by reflex , temper tantrums, or symbolic toughness. It should be governed by necessity, evidence, and an honest, accurate assessment of harm.
If a judge or prosecutor cannot prove danger and cannot justify the damage incarceration will cause, they should not be allowed to traumatize people in the name of justice.
Anything else is willful ignorance and cruelty.
Sources
- National Research Council. The Growth of Incarceration in the United States
- Vera Institute of Justice. Incarceration’s Impact on Kids and Families.
- Brennan Center for Justice. What Caused the Crime Decline?
- Western, B. (2018). Homeward: Life in the Year After Prison
