Desert and Previous Convictions in Sentencing

• NCJ Number: 76369
• Journal: Minnesota Law Review Volume: 65 Issue: 4 Dated: (April 1981) Pages: 591-634
• Author(s): A vonHirsch
• Date Published: 1981
• Length: 44 pages
• Publication Format: Article
• Language: English
• Country: United States of America
• Note: Article based on a presentation made at a conference on penal desert held at Sterling Forest Conference Center, Tuxedo, New York, November 17-19, 1978.

Annotation

The relevance of prior convictions in sentencing is examined in terms of propriety, scope, and dangers of abuse.

Abstract

Most penal systems impose less punishment on a first offender than on offenders who have prior criminal records. This behavior is premised on the fact that most prediction studies suggest that an offender with a prior criminal record is statistically more likely to return to crime than a first offender. In addition, the severity of punishment ought to comport with the degree of blameworthiness of the offender's conduct. In effect, first offenders may plead that although the criminal act was wrong, it was out of keeping with their behavior in the past, and thus they should not suffer full obloquy for it. This plea loses force with subsequent repetitions. Thus, prior misconduct is relevant to desert judgments in everyday contexts of reproving,censuring, and punishing. The chief problem when carrying over this desert judgements rationale into criminal sentencing law is the reach of the State's power to scrutinize people's lives. Use of prior criminal record does not necessarily compel unrestricted scrutiny into an offender's past personal life. By definition, a criminal record is distinct from the defendant's noncriminal past; thus, relevant inquiry does not pose a threat to a free society. The role of prior record should be restructured to reduce the severity of punishment. First offenders should receive less punishment than they would were the presence or absence of a criminal record disregarded in assessing deserts. Previously convicted offenders would not receive any more punishment than they would in a hypothetical desert-based system that ignored prior criminality. Failure to implement the proposed restructuring can result in escalating penalities for recidivists or erosion of limits on the scope of inquiry in sentencing. Seven charts and 98 footnotes are included.