The Unprincipled Punishment of Repeat Offenders: A Critique of California's Habitual Criminal Statute

Abstract

Recidivist statutes in the United States come in many shapes and sizes. Some impose short jail terms on habitual traffic offenders, while others mandate life sentences for all third felony offenders. Among the most noteworthy of modern recidivist statutes is the California Habitual Criminal Statute, §667 of the California Penal Code. Section 667 is, without a doubt, the harshest of California's many recidivist provisions. This note presents a detailed critique of §667. It argues that §667 is inconsistent with each of the four generally accepted punishment theories: retribution, rehabilitation, deterrence, and incapacitation. And, in the absence of repeal, California courts should interpret §667 as narrowly as possible. And finally, this note proffers an alternative to §667 that would attempt to limit penalty enhancements to those specific offenders who are considered exceptionally likely to commit serious crimes once released from prison, and to assign such enhancements in a fair and proportionate fashion.

Keywords: Recidivism, punishment theory, repeat offenders