The Paradox of Recidivism

• Citation: Vol. 70 No. 6
• Publication year: 2021

The Paradox of Recidivism

Christopher Lewis

THE PARADOX OF RECIDIVISM

Christopher Lewis^*

Abstract

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.

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Introduction...........................................................................................1211

I. Efficiency and Public Safety....................................................1215

A. Incapacitation......................................................................... 1217

1. Replacement Effects.......................................................... 1218
2. The Backlash of Concentrated Incarceration................... 1220
3. Crime Inside Prisons ........................................................ 1221

B. Deterrence .............................................................................. 1223

1. General Doubts ................................................................ 1223
2. Biases and Heuristics ....................................................... 1224
3. Probabilities of Detection..................................................1225

II. Culpability...................................................................................1226

A. Character................................................................................ 1227

1. Notice ............................................................................... 1227
2. "Lapse" ............................................................................ 1229

B. Additional Wrong ................................................................... 1233

1. Defiance ............................................................................ 1234
2. Omission........................................................................... 1237

III. The Paradox.................................................................................1240

A. Barriers to Reentry and the Causes of Recidivism ................. 1241

1. Stigma for Job Applicants ................................................ 1241
2. Interrupting the Life Course ............................................. 1243
3. Welfare, Housing, and Other Goods ................................ 1244

B. Inequality, Incentives, and Criminal Responsibility............... 1246

1. Moral Blame and Legal Punishment................................ 1246
2. Kinds of Incentives ........................................................... 1248
3. Measuring Incentives ........................................................ 1250
4. Evidence of Ill Will........................................................... 1252
5. Incentives and Deterrence Once More............................. 1254

C. Violence and Victims .............................................................. 1256

1. Violent Crime ................................................................... 1256
2. Sexual Violence ................................................................ 1257
3. Victims' Rights ................................................................. 1258

IV. Collateral Consequences: Objections and Response.........1259

A. Option Luck ............................................................................ 1259
B. Declining Severity .................................................................. 1261
C. Jurisprudence and Justification .............................................. 1264

1. Procedural Safeguards ..................................................... 1265
2. Substantive Criteria .......................................................... 1267

Conclusion...............................................................................................1270

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Introduction

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. Criminal justice systems around the world, including the U.S. federal system and those in every U.S. state, punish repeat offenders much more severely than first-time wrongdoers convicted of similar crimes.¹ Recidivist sentencing enhancements are promulgated in state and federal sentencing guidelines and statutory provisions;² imposed by sentencing judges as a discretionary matter;³ and furthered in decisions made by parole boards, probation officers, and other corrections officials.⁴ A convicted offender's prior criminal record is one of the two most important determinants of how long they will spend in prison, along with the severity of the present criminal offense.⁵ Prior convictions trigger, on average, a six-fold increase in the length of punishment in states that use sentencing guidelines; some state guidelines impose a ten-fold average increase; and for some offense categories, guidelines recommend sentences 100 times more severe for offenders with the most serious criminal records, compared to first-time offenders convicted of exactly the same crime.⁶ Most of the people we lock up—especially those who are Black or Latino, and poor—already have at least one prior conviction.⁷ Roughly half of the people who are released from state prisons will return to prison within three years.⁸ The "recidivist sentencing premium," as such, plays a large role in

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shaping the size of the incarcerated population, and in determining its demographic distribution.

But as this Article demonstrates, the law and policy of collateral consequences, and the social conditions they engender, have left us in a situation where judges and sentencing commissions ought to do precisely the opposite of what they currently do: treat prior criminal convictions as a presumptive mitigating factor, rather than an aggravating one—imposing a recidivist sentencing discount, rather than a premium.

The case for this thesis unfolds in four parts.

The first two parts of the paper examine the prevailing rationales for the recidivist sentencing premium. In Part I, I assess and cast doubt upon rationales that appeal to the incapacitation—and deterrent—effects of the premium. I pinpoint several important areas where existing empirical research provides insufficient reason to be sure of these standard views and show that the recidivist sentencing premium may be counterproductive to crime control in some circumstances. There is an undeniable correlation between one's past criminal record and one's future likelihood of reoffending. But we must weigh a number of other determinants of public safety that the existing literature on recidivism fails to consider—including "replacement effects," the potential backlash of concentrated incarceration, crime that occurs inside of our prisons and jails, the biases and heuristics that underlie all human decision-making, and the probability that an offender with prior criminal convictions will be detected. Given our lack of information about the extent of these phenomena and how they correlate with prior criminal convictions, considerations of public safety do not weigh in favor of the recidivist sentencing premium as clearly as most people think.

This portion of the argument should be taken as a possibility proof and a call for further empirical research, rather than a decisive refutation of the rationales under examination. Future empirical research could vindicate these rationales, partially undermine their force, or potentially show that the recidivist sentencing premium is counterproductive to crime control. But until such research is completed, we should be skeptical of incapacitation- and deterrence-based arguments for the recidivist sentencing premium.

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In Part II, I turn to backward-looking considerations of blameworthiness and culpability. As the Federal Sentencing Guidelines put it, "a defendant with a record of prior criminal behavior is more culpable than a first offender and thus deserving of greater punishment."⁹ A wide range of criminal law theorists defend various forms of this position.¹⁰ Some argue that in cases of repeat offending, we have more evidence of malice, ill will, or bad character than we do when someone is convicted of an otherwise similar first offense. And others argue that repeat offenders are guilty, by virtue of their past criminal history, of an additional wrong on top of their current offense—for example, defiance of a judicial mandate not to reoffend, or a failure to organize their lives in such a way as to prevent themselves from repeating past mistakes. I argue that all of these backward-looking rationales are either viciously circular or otherwise unsound. This, combined with the possibility proof I give in Part I, shows that there is no clear reason to think we are justified in punishing repeat offenders more severely than first-time wrongdoers as a matter of course.

In Part III, I lay out the central, positive argument. The severity with which we punish offenders, relative to one another, should track the amount of ill will their crimes...