The Paradox of Recidivism

63 Pages Posted: 19 May 2020 Last revised: 9 Aug 2021

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 states that use sentencing guidelines. And most of the people we lock up in the U.S. have at least one previous conviction.

This article shows that given the current law and policy of collateral consequences, and the social conditions they engender, judges and sentencing commissions should do exactly the opposite of what they currently do: impose a recidivist sentencing discount, rather than a premium. This thesis is counterintuitive and politically unpalatable. It goes against the grain of criminal law and policy dating back as far as we know it, virtually the entire scholarly literature, and millennia of social tradition. But this article shows that it follows logically from fairly ordinary moral premises.

Keywords: Recidivism, Sentencing, Punishment, Crime, Re-entry, Collateral Consequences, Inequality, Race, Class, Incapacitation, Deterrence, Responsibility, Blame

Suggested Citation

Lewis, Christopher, The Paradox of Recidivism (April 21, 2020). 70 Emory Law Journal 1209 (2021), Available at SSRN:

Christopher Lewis (Contact Author)

Harvard Law School ( email )

1585 Massachusetts Avenue
Cambridge, MA 02138
United States


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