New Mexico Law Review
The movement to reduce over-prosecution and mass incarceration has focused almost exclusively on non-violent offenders despite data showing that over half of all prisoners incarcerated within the United States are sentenced for crimes of violence. As a consequence of the focus on nonviolent offenses, the majority of current and future defendants will not benefit from initiatives offering alternatives to criminal prosecution and incarceration.
A discussion of alternatives to the criminal justice system in cases of violent crime must begin by acknowledging that violent crime is not monolithic. Many incidents meet the statutory elements of a violent crime, that is, the use of force or attempted use of force against another person or person's property, and yet prosecution may not serve the interests of society at large, the complaining witness, or, certainly, the accused. In many instances in which the crime is not deemed serious enough to warrant punishment, the accused pleads guilty and receives a sentence of probation. In some instances, the prosecution offers the defendant a diversionary program in lieu of court.
M. Eve Hanan, Decriminalizing Violence: A Critique of Restorative Justice and Proposal for Diversionary Mediation, 46 N. M. L. Rev. 123 (2016).