We’re all familiar with the notorious “trial tax” (or plea disount, according to which table you sit at in the courtroom), but what about the “recidivism premium“?
The “recidivist premium” refers to the practice of imposing more punishment on recidivists—or repeat offenders—than if they were first-time offenders.Consider two eerily similar criminal acts. Both offenders, in the same city, pull a gun on a person withdrawing cash from an ATM. After taking the cash, both offenders strike the victim on the head with a butt of the gun. Both victims receive treatment for a concussion and quickly recover. The offenders are both charged with the same crimes, are convicted at trial, and are facing sentencing by the same judge. Adding no other information, we would think that the two perpetrators of these criminal acts should receive similar sentences.
However, in general, there will be differentiating information. The offenders might have different upbringings and backgrounds, they may come from different socio-economic statuses, and they might have different reasons for committing the crimes. Intuitions vary on whether and which of these kinds of differences merit varied punishment. But there is near unanimous agreement that it would be appropriate to punish them differently based on the prior criminal histories, and in some cases to a staggering variance.
The idea that a recidivist should be punished more harshly than a first offender seems so obvious that it receives little consideration. After all, isn’t deterrence, both general and specific, a core purpose to criminal sentencing? Isn’t a repeat offender someone who has demonstrated that he won’t be so easily deterred, and that the deterrent affect of his prior punishment was inadequate to the task? Upping the ante at sentence on subsequent offenses makes complete sense, right? Or does it?
The principal consequentialist benefits of punishment are in specific deterrence, general deterrence, and incapacitation. It is fundamentally an empirical question whether the premium advances these benefits. Yet there is no convincing evidence that the premium does, and indeed there is substantial countervailing evidence. Thus, in light of that and given that the premium imposes actual suffering because it imposes greater punishment on offenders, it is unjustified as a consequentialist matter.
Much like the old drug war “common sense” rationale that if a sentence of one year didn’t stop people from selling drugs, then ten years will. Or twenty or more. As we’re now well aware, it didn’t work that way, and despite the ratcheting up of sentences, often with mandatory minimums that swept minor players in with the big boys, no dent was ever made in the drug problem. The notion of Draconian sentencing made enormous sense. It just didn’t work.
A collateral belief that was accepted as too obvious for discussion is that repeat offenders needed ever-increasingly harsh sentences under the same rationale. If a year didn’t turn the perp around, then ten would do the trick. Or the simplistic three strikes approach, where we simply gave up on defendants who hit their third conviction, even if it was some petty crap that would have been shrugged off as a first offense. Too bad, they’re incorrigible and can’t be rehabilitated. Best to protect society by isolating them for extreme periods, if not forever.
But there was never any empirical basis to believe that either length of sentence, or increasingly harsh sentences, fulfilled the putative goal of teaching the perp the lesson he needed to rejoin society as a law-abiding member. Indeed, there was a good deal of empirical and anecdotal information that suggested the opposite.
Send a guy to prison and he’ll learn to be a better criminal. Saddle a guy with a felony and watch society make it extremely difficult, if not impossible, for him to get a decent job, an education, find a place to live after he’s “paid his dues.” Put a guy away for a period of years and then toss him out with no skills, no place to live, no job, no mental health therapy and no support, and expect him not to turn to crime or, ahem, unsavory people who are the only people inclined to lend him a hand. If we really wanted to rehabilitate defendants, to facilitate their re-entry into society after their first prison stay, and thereby to as much as possible to prevent the ex-offender from becoming the repeat offender, these are the buttons that need pushing.
But these fixes are complicated, difficult and imperfect. Doubling up on sentence for a subsequent offense is so much easier to do and to explain to a public hungry for answers and disinclined to give the issue more thought after the syllogism* is accomplished.
This is not to say that some repeat offenders aren’t just bad dudes, for whom no amount of support would change their trajectory back to crime. And when that happens, it’s almost impossible to argue, or believe, that they don’t “deserve” harsher punishment for having been given the chance to reform and chosen to forsake it, assuming sociopaths have a choice in the matter. And concern about the recidivism premium is not to suggest that repeat offenders should get a free ride for subsequent crimes.
But that doesn’t mean the recidivism premium shouldn’t be given serious consideration for a great many defendants, for whom ever-harsher sentences will accomplish nothing other than isolating them from society at enormous cost until they’re turned loose to fail again, because we’re still obsessed with simplistic fixes rather than effective ones.
*Something must be done.
This is something.
This must be done.
H/T Doug Berman
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The longer he’s off the street the less likelihood he’ll offend a third time. The first time he gets the benefit of the assumption a modest trip to the clink will correct the error of his ways.
When he proves we were fools once, shame on us for giving him another chance.
I would amend that to say “The longer he’s off the street the less TIME HE HAS TO offend AGAINST THE GENERAL PUBLIC a third time. ” That is, ” incarceration = incapacitation” at least for the duration of the incarceration. Indeed, it’s axiomatic. The post above quotes Prof Krishnamurthi saying “It is fundamentally an empirical question whether the premium advances these benefits [of deterrence and incapacitation]” but in the article itself, the evidence is raised only on the deterrence questions. The article in fact says “…it may be the case that there are some benefits from added incarceration in terms of incapacitation.” How can it be otherwise? When a criminal is separated from the general public he cannot offend against it.
Of course, we have to add the phrase “the general public” because it is only the public that is protected for the duration of incapacitation. Prisons are finishing schools for aspiring criminals precisely because there is so much crime within them. As Prof K wrote “incarceration does not incapacitate, but merely differently locates crime.” For some voters/policy makers, that may be enough.
But 1. Three strikes laws lead to indefensible sentances is some cases, and 2. The imprisoned offender continues to damage the public by requiring room and board.
On your first point, the sentences may be indefensible from a deterrence or rehabilitation perspective, but not for incapacitation; there are plenty of people who will see three felonies and be more than content with putting the person away for 10 years or more, regardless of what those felonies are or whether they are violent or non-violent.
On the second point, this is a cost-benefit test: the prospective victims of repeat offenders, which are the general public, may consider their tax dollars a justifiable cost of keeping repeat offenders incapacitated when the latter has demonstrated their relentlessness. After all, we don’t consider it “damage to the public” to pay police officers to deter potential criminals, arrest actual criminals, or maintain traffic safety, so why is it “damage” to pay to keep repeat offenders from committing more potential offenses? Bloody Code-level executions, 19th Century transportations, and Draconian mutilations are off the table, so the public doesn’t have other options for incapacitation beyond paying to warehouse repeat offenders.
So it’s a question of, do I hate this guy enough to pay THAT much to never have to risk dealing with his shit?
Add to the equation that due to sentencing guidelines the repeat offender will serve more time simply because he/she is a higher range offender.
The sad fact is some will continue to reoffend no matter how much time the law calls for them to serve. Some are so sure they wouldn’t be able to successfully complete parole that they refuse parole and stay in prison longer, so they aren’t under supervision when released. I don’t know what the solution for them is.
SHG The problem that Guha Krishnamurthy and you have is that you are applying rational thought to the intractable problem of the criminal underclass. The correct approach is to use emotional and righteous moral thinking which is what 99% of the members of species homo sapiens do 99% of the time. Morality requires that attempting to rehabilitate bad people requires too much money spend to benefit them while any greater amount spent on courts, lawyers, police and prisons to make them angry and miserable is justified even though it is ineffective at effecting the supposedly desired change.
Humans behave as humans behave, not as how rational thinkers like you and your blog commentors believe they should behave. This is depressing but true.
Different governments and different times have had radically different schemes of punishment, varying from the draconian to the merciful. The authorities were usually applying what they believed was “emotional and righteous moral thinking”. So your statement is incoherent. Morality and emotions are not static, what they “require” varies with time and space.
From the paper: “The offenders might have different upbringings and backgrounds, they may come from different socio-economic statuses, and they might have different reasons for committing the crimes. Intuitions vary on whether and which of these kinds of differences merit varied punishment. But…”
These “intuitions” for other factors are being rather casually accepted as reasonable in contrast. Why not also problematize varying the punishment on the basis of whether or not they show remorse, or defiantly announcing to the court that they have every intention of doing it again? The crime is still the same. Should diversion programs for first time defendants be scrapped as inequitable? Is it leniency to adjust sentences for people from certain “upbringing and backgrounds,” or is it a penalty imposed on people from others?
A good point: the author focuses mostly on deterrence and rehabilitation, but if “the crime is the crime” regardless of whether it’s their first or their fifteenth, then that sounds like the author is implicitly arguing for a retribution-based approach, that is, that the punishment match the harm that was done to the victim in the instant case.
OMG, surely you’re not suggesting that we look at each individual as an actual human being and make decisions based on the person, rather than a mechanical shuffling through of the conveyor-belt file system!?! Sorting out those who can be helped from the hard-of-learning from the seriously sociopathic would take, you know, TIME. Easier to just follow Abbot Amalric’s (possibly apocryphal) advice.
But it does seem to me that sorting them out before God does is the only way to achieve a fair and just answer to the question. I can’t deny the appeal of the “recidivism premium,” but “appeal” is not the same as “right.”