Against the Recidivist Premium

Abstract

The American penal system is broken. The state of mass incarceration is wreaking havoc on individuals, families, and communities. And these effects are unequally levied upon and borne by communities of color and the poor. This state of affairs is morally odious and intolerable. One main component of mass incarceration is the deployment of the “recidivist premium”—that is, the imposition of additional punishment on repeat offenders compared to first time offenders who commit the same offense. This Article contends that, in light of our reasons for punishment, the recidivist premium is unjustified and indeed harmful. As a result, I argue that, on our current state of information, we should abolish our penal system’s deployment of the recidivist premium.

This Article sets forth the comprehensive case against the use of the recidivist premium. First, I show that the recidivist premium does not accord with our retributive theories of desert. Then, I explain that, on our best empirical evidence, the recidivist premium does not further the principal consequentialist benefits of punishment, namely deterrence and incapacitation. Finally, I show that the recidivist premium does not advance the desiderata of sentencing design, including consistency, calculability, predictability, and efficiency.

To live up to our ideals of equality and human dignity, we must restore the rights of those convicted of crimes when they reenter society and treat them as full members of their polity. Any differential treatment must be specially and rigorously justified. The recidivist premium does not satisfy that demanding standard, and thus it should not stand.

Keywords: recidivism, recidivist premium, retributivism, consequentialism, utilitarianism, incarceration, punishment, justification for punishment, mass incarceration, sentencing, sentencing theory

JEL Classification: K10, K14, K40, K42