Download This PaperThe Paradox of Criminal History
76 Pages Posted: 27 Aug 2019 Last revised: 31 Aug 2021
Date Written: April 2, 2020
Abstract
Criminal history is all-important in the criminal and immigration systems. But these systems have minimal substantive information about past crimes. This creates a paradox. A person’s past convictions dictate whether they will face new criminal charges, make bond, suffer a lengthy sentence, or be targeted for deportation, among many other consequences. Yet, despite the vital role that criminal history plays in these decisions, judges and prosecutors know very little about the prior crimes of the people they process. Factually rich accounts of a person’s convictions are rarely available. The system instead relies on rap sheets that record only basic facts - the charge, the date of conviction, and the nominal sentence.
Because of this information poverty, the criminal and immigration systems employ criminal history heuristics when determining the consequences of prior convictions. Such heuristics include the number of past convictions, the types of crimes charged, and the apparent sentences. These heuristics are inputted into mechanical formulas like “three strikes” laws, sentencing guidelines, and bail algorithms. Such formulas translate past conviction information into often-severe consequences like deportations and mandatory minimum sentences. This mechanistic way of using criminal history creates many serious problems in our system. It causes irrational and unjust case outcomes, renders the system arbitrary to the people being processed, exacerbates systemic racism, and makes access to a competent lawyer vital. This Article diagnoses these problems and proposes a variety of possible reforms.
Keywords: criminal history, rap sheets, criminal law, immigration law, strikes, mandatory minimums, aggravated felonies
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Eric S. Fish (Contact Author)
University of California, Davis - School of Law ( email )
Martin Luther King, Jr. Hall
Davis, CA CA 95616-5201
United States