The Paradox of Recidivism
55 Pages Posted: 19 May 2020
Date Written: April 21, 2020
The idea that we should respond more severely to repeated wrongdoing than we do to first-time misconduct is one of our most deeply held moral principles, and one of the most deeply entrenched principles in the criminal law and sentencing policy. Prior convictions trigger, on average, a six-fold increase in the length of punishment in U.S. states that use sentencing guidelines. And three- strikes, habitual offender, and career criminal laws mandate extremely harsh penalties for repeat offending. Most of the people we lock up in the U.S. — especially those who are Black or Latino, and poor — have at least one prior conviction. The “recidivist sentencing premium” is thus one of the main determinants of race- and class-based disparity in our prisons, and of the overall size of our incarcerated population.
This article shows, counterintuitively, that given the current law and policy of collateral consequences, and the social conditions they engender, judges and sentencing commissions have moral reason to do exactly the opposite of what they currently do: impose a recidivist sentencing discount, rather than a premium. Prior convictions should be treated as a presumptive mitigating factor, rather than an aggravating one. This thesis goes against the grain of criminal law and policy dating back as far as we know it, virtually the entire scholarly literature, and millenia of social tradition. But this article shows that it follows from a number of quite ordinary normative and empirical premises. The conclusion might be politically unpalatable, but it is morally unavoidable.
Keywords: Recidivism, Sentencing, Punishment, Crime, Re-entry, Collateral Consequences, Inequality, Race, Class, Incapacitation, Deterrence, Responsibility, Blame
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