NCJ Number
92360
Journal
Criminal Justice Ethics Volume: 1 Issue: 2 Dated: (Summer/Fall 1982) Pages: 54-59
Date Published
1982
Length
6 pages
Annotation
It is difficult to justify the imposition of increasingly more severe penalties for offenses subsequent to the first offense, based on a retributivist argument.
Abstract
Retributivists generally hold that punishment should be a fitting response to the defendant's crime. The notion of crime, in turn, is viewed as consisting of two dimensions: the defendant's wrongful act and the degree of offender responsibility for the act. The wrongful act consists of the likelihood that the defendant's act will result in the violation of a protected legal interest as well as the harm, if any, represented by this violation. Offender responsibility involves the degree of control the offender has over his/her behavior as well as degrees of awareness and knowledge bearing upon the behavior. The notion of culpability includes all the issues that might be raised in seeking to mitigate responsibility: insanity, diminished capacity, duress, and other excuses. The standard of responsibility excludes consideration of motive, while culpability might well encompass the criteria of motive and other personal factors that can increase an offender's desert due to committing the wrong. In applying these retributive principles to the concept of increasing penalties for recidivist offenses, it cannot be shown that the wrongfulness of the third act is by virtue of being in a sequence more severe than the first offense, and neither can it be shown that responsibility or culpability necessarily increase with offenses committed after the first offense. Those who regard the recidivist premium as justified on retributivist grounds are challenged to produce additional and stronger arguments. Ten notes are provided.