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This chapter examines one of the most difficult and important problems of sentencing theory and practice—sentencing enhancements based on prior or multiple current convictions. It first refutes retributive justifications for prior-record (“criminal history”) enhancements, and concludes that such enhancements are only justified if they are based on elevated recidivism risk and respect the normal upper limits of current-offense desert. Moreover, such enhancements should be replaced by validated risk assessment instruments that include normatively acceptable factors in addition to prior convictions. As for multiple current convictions, the chapter concedes that such offenses often merit consecutive sentences, on both desert and risk grounds, but argues for reasons of parsimony in favor of two presumptions: concurrent sentencing and, in case of departure, a limit of twice the recommended sentence for the most serious offense. The chapter also promotes several forms of “concurrent plus” sentencing, including treatment of multiple current offenses as “prior” convictions.

This chapter explores the degree to which a higher criminal history score increases the severity of recommended and imposed sentences in U.S. guidelines systems. The impact of criminal history on sentence severity is measured in several ways. One set of measures assesses the extent to which a high criminal history score translates into increased sentencing severity—by causing the offender to be recommended for immediate commitment to prison, and/or by increasing the duration of the recommended prison or other custodial sentence. Other measures of prior record enhancement magnitude relate to the criminal history formula itself—the components of the score and the way in which each component is weighted. These rules determine how quickly offenders acquire a high score, triggering the most severe impacts, and they also determine which offenders are most likely to receive high scores. The chapter concludes with proposals for regulating the magnitude of prior record enhancements.

It is generally assumed that prior convictions provide a useful proxy for the offender’s risk of committing further crimes, and as a general proposition that assumption is well supported by research. But as this chapter shows, there is much less research on how well particular prior record formulas predict recidivism risk. This chapter identifies the elements of guidelines criminal history scores that appear to be designed to measure risk, reviews the limited research assessing the accuracy of criminal history scores and score components as predictors of subsequent offending, and examines the closeness of fit between predicted increases in risk, as the criminal history score rises, and the increments in sentence severity that are prescribed by grid-based guidelines systems. The chapter also argues against the use of rigid prior record enhancement formulas, and in favor of giving judges power to adjust sentences to take into account case-specific variations in recidivism risk.

Sentencing enhancements based on the offender’s prior conviction record are a major contributor to racial disproportionalities in prison populations, since racial minorities tend to have more extensive criminal records. After briefly reviewing the larger problem of disproportionate minority confinement in the United States, and the serious negative consequences of such disparities, this chapter examines data from several states on the ways in which racial differences in prior conviction records and other factors cause disproportionate minority confinement. The chapter focuses on black-to-white disparities, since blacks are the largest nonwhite group in most states and there is more detailed criminal justice data on them than for most other nonwhite groups. But the available data on Hispanics and Native Americans reveals disparities that are sometimes as great as for blacks. The chapter concludes with proposals for revising criminal history enhancement rules that have the largest and least defensible disparate impacts on nonwhite offenders.

The focus of this chapter is on five components of criminal history scores that lack strong justification from the perspective of recidivism risk, retribution, or both rationales. These components are: juvenile court adjudications, misdemeanor convictions, the offender’s “custody status” when committing the offense being sentenced (whether he was incarcerated or on some form of criminal justice release), weighting prior felony convictions according to their severity ranking or other seriousness indicator, and the policy in some jurisdictions of according extra weight to prior offenses that were similar to the offense being sentenced (“patterning” premiums). The chapter then presents data from Minnesota, showing how the inclusion of the first four of these score components greatly increases the frequency and duration of recommended and imposed prison terms. The chapter concludes that criminal history scores should not routinely include any of these five problematic components, although judges might consider them as potential aggravating factors.

This chapter examines how expanded employer access to criminal history data influences the labor market outcomes of ex-offenders and nonoffenders. The research design used in this chapter is similar to one used by Autor and Scarborough to study the diffusion of preemployment personality tests at a national retail chain. Looking at a criminal history record positively identifies an individual and describes that person's arrests and subsequent dispositions relating to a criminal event. Because employers have a strong aversion to hiring ex-offenders and because criminal history records have recently become more accessible, it is not surprising that the use of criminal background checks has increased at the same time the number of ex-offenders has increased. Regression estimates indicate that more widely available criminal history data worsens the labor market outcomes of ex-offenders.

This chapter reviews some of the different ways in which criminal history information influences sentencing decisions. Particular attention is paid to England and Wales since this jurisdiction has undergone a significant revolution in recent years. The chapter then describes sentencing arrangements in a number of other common law jurisdictions, before concluding with illustrations of the recidivist sentencing premium in other countries. This selective review demonstrates that an offender's previous convictions are considered relevant to sentencing around the world, although the specific manner in which they are counted varies considerably. Two surveys, one conducted in the UK and the other in New Zealand, demonstrate that an offender's previous convictions are clearly a salient feature of the sentencing model to which most criminal justice professionals and sentencers subscribe. Many jurisdictions identify the issues of recency and relatedness, suggesting that previous convictions should weigh more heavily against the defendant when the priors are recent and similar to the current conviction.

This chapter provides an overview of the book, including the following major topics: why this neglected topic is so important; the ubiquity of prior record enhancement in modern sentencing systems, and their particularly powerful roles in U.S. jurisdictions with sentencing guidelines; the wide variations in the criminal history scoring formulas used in guidelines, with respect to matters such as which prior crimes and other factors are included, the weight each receives, and the degree to which a high score increases recommended sentence severity; the unclear punishment rationales for such enhancements; and the numerous negative consequences of these enhancements— increasing the size and expense of prison populations, undermining the important goal of punishment in proportion to offense severity, increasing the need for prison beds to house property and other nonviolent offenders, generating large numbers of aging prison inmates, contributing to racial disproportionality in prison populations, and undermining offenders’ efforts to reintegrate into society.

If prior record enhancements are justified as a way to manage offender risk, policymakers need to consider other, non-record risk factors that may improve risk-prediction accuracy. This chapter examines the limited extent to which guidelines systems have incorporated such factors—usually as a ground for departure or other adjustment after the recommended sentence has been determined based on current offense and prior record. The chapter summarizes the offense factors and non-criminal-history offender factors, such as the offender’s current age and criminal thinking patterns, that criminological research has found to be good predictors of the risk of re-offending, and that are often included in widely used risk assessment instruments such as the Salient Factor Score, CSRA, and LSI-R. Very few of these non-record risk factors have been given a formal role in guidelines sentencing. The chapter argues that judges should be allowed to consider some of these factors, especially older age.

This chapter shows how powerful criminal history enhancements undermine important goals of guidelines reforms. First, these enhancements undermine the goal of making punishment severity proportional to the seriousness of the offense for which the offender is being sentenced; if prior record receives more weight in sentencing, conviction offense seriousness receives less weight. Second, these enhancements counteract the goal of reserving expensive prison beds for offenders convicted of violent crimes—powerful criminal history enhancements shift the balance of prison admissions and inmate stocks toward property, drug, and other nonviolent offenders. Third, prior record enhancements change the composition of prison populations by risk level—older offenders often have more prior convictions but declining recidivism risks, so criminal history enhancements increase the number of aging, low-risk prison inmates. The formulaic nature of such enhancements also over-predicts the risk level of some younger offenders. The chapter concludes with proposals for limiting these adverse effects.

This chapter shows how sentencing data can be used to quantify the substantial fiscal impacts of high-magnitude criminal history enhancements, overall and with respect to the problematic aspects of those enhancements identified and discussed in previous chapters. It uses data from Minnesota and several other states as examples because of the excellent sentencing data available for those states. The chapter first examines the total fiscal impact (added bed needs and costs) that results from the sentence-enhancing effects of criminal history on prison commitment and prison duration decisions. It then quantifies the fiscal impacts of the identified problematic aspects of prior record enhancements: disproportionately severe prison durations imposed on high history offenders, imprisonment of nonviolent offenders recommended for prison solely because of their elevated criminal history scores, imprisonment of aging offenders who are recommended for prison due to their high history scores, and racially disparate sentences that result from criminal history enhancements.

Historical master-narratives of international criminal law rest on a series of exclusions. Although there is growing recognition of the need to develop more inclusive histories of international criminal law, fundamental questions remain about the politics, methods, and agents of inclusion. This contribution explores some of the challenges of writing more inclusive international criminal legal histories and highlights some of the different registers within which questions of inclusion play out by reference to scholarship on the transatlantic slave trade and slavery. This rich literature provides an opportunity for reflecting on the dilemmas of more inclusive history writing in a cross-cultural racialized context. These challenges apply not just to the past. Scholarship on the slave trade, which has grappled with questions of agency, voice, and empathy, incites a challenge to the representation of victims in international criminal law today.

This chapter outlines a model regime of prior record enhancement (PRE), designed to promote more rational, parsimonious, and humane sentences. It provides general principles and specific rules reflecting what is known about PRE justifications, costs, benefits, and adverse consequences. The principles specify which punishment purposes justify PRE, while also recognizing the overarching importance of maintaining proportionality to conviction offense seriousness, ensuring that PREs are necessary and cost-effective, minimizing racial disparities and imprisonment of aging and nonviolent offenders, avoiding interference with offender efforts at desistance, and striking a reasonable balance between rule and discretion. The model’s PRE counting rules exclude juvenile and misdemeanor priors, convictions more than 10 years old, upweighting of felonies based on their severity or similarity, and custody status points. First offenders receive substantial sentence mitigation, after which PRE magnitude increases modestly and is capped. High-history offenders are punished no more than twice as severely as first offenders.

Establishing that the public reject a policy which excludes consideration of an offender's previous convictions at sentencing is insufficient; we need to better understand the psychology and knowledge base of the intuitive sentencer. This chapter explores the reasons for public support for the use of criminal history information at sentencing. The explanations for public support for a recidivist sentencing premium will take us in a number of directions. The point of departure for understanding public opinion is public knowledge of reoffending patterns and laypersons' expectations of sentencing outcomes. Having established the level of public knowledge, the social psychology of causal inferences is discussed. The chapter also considers public knowledge of repeat offenders, naive expectations of desistance, intuitive explanations of criminal behaviour, the ‘fundamental attribution error’, and punishing disposition.

This chapter examines the question of whether and when prior convictions from many years past should no longer be considered at sentencing. The chapter first surveys the varying “look-back” and crime-free “gap” rules found in American guidelines systems, noting that many jurisdictions have no look-back limits for some or all offenders. This discussion also examines the question of when the look-back “clock” starts to run, in applying each of the existing rules—that date could be as early as the date of the prior sentencing, or as late as discharge from probation or parole. The chapter then considers the ways in which different approaches to look-back relate to the punishment rationales—offender risk and culpability—that are thought to justify criminal history enhancements. It also presents a summary of recent research surveying public opinion about the desirability and formulation of look-back limits. The chapter concludes with proposals to limit look-back.

This chapter examines how the system of pleas impacts two areas that receive special attention in criminal justice: (1) sentencing disparities and (2) mass incarceration. The first section discusses ways that plea bargaining leads to different punishment levels for individuals whose criminal conduct is otherwise similar. These differences include reduced punishment due to count or charge reductions, or favorable sentence recommendations or agreements, in exchange for a willingness to plead guilty or to provide assistance to the prosecution and law enforcement. The next section discusses how the system of pleas enables mass incarceration. Although the system of pleas was well established by the onset of mass incarceration, and thus did not cause mass incarceration, plea bargaining did create the infrastructure that made mass incarceration possible.

This introduction lays out the book’s animating idea: to contribute to the emergence of a transnational canon of criminal law by documenting its intellectual and disciplinary history and, at the same time, to present a snapshot of contemporary work on criminal law within that historical and comparative context. In addition, the introductory chaper provides an overview of the book’s content, not by giving chapter-by-chapter plot summaries, but by exploring the conceptions of “foundational texts in modern criminal law” running through the various contributions and, along the way, highlighting some of the themes that one might see emerging from the book as a whole.

Even if a guidelines criminal history score, other prior record formula, or some combination of record and non-record factors accurately reflects the offender’s recidivism risk, sentence enhancements based on that formula are not justified unless the increased penalty will prevent further offending in a cost-effective, fair, and legal manner. This chapter summarizes the voluminous literature on the relationship between punishment severity and crime. That literature shows that increased penalty severity has at best a modest deterrent effect on offending rates, and is as likely to cause more crime as it is to prevent crime by means of general and specific (individual) deterrence and/or incapacitation. The chapter also discusses whether such enhancements—particularly when based on non-record factors such as age and gender—are unfair to offenders, and whether non-record, risk-based enhancements are consistent with constitutional requirements of proof beyond reasonable doubt and jury trial under the Blakely v. Washington doctrine.

Proponents of retribution (Just Deserts) as a punishment rationale sharply disagree about whether repeat offenders are more culpable for a new offense, in comparison to offenders with little or no prior record. Some retributivists assert that prior convictions should have no bearing on the offender’s culpability and deserved punishment for his latest offense. Other retributivists argue that first offenders are less culpable and deserve sentence mitigation; some of these writers would extend a lesser degree of mitigation to offenders with only a minor record. A third group of retributivists views prior crimes as an aggravating factor, justifying steady increases in punishment severity as offenders acquire more convictions. This chapter critiques each of these three approaches. It argues that first offenders deserve substantial mitigation, that sentence severity should rise only modestly with additional convictions, and that such enhancements must be “capped” to preserve proportionality to the crime being sentenced.