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Can recidivists be considered more culpable than first-time offenders? Should the seriousness of offenders' previous convictions be taken as evidence of their enhanced culpability for the current offence? This chapter begins by noting the ubiquity of a culpability-based approach to previous convictions. Statutory provisions and sentencing guidelines in a wide range of jurisdictions affirm that repeat offenders are more culpable as a result of their previous convictions. Previous convictions speak to the offender's state of mind prior to the commission of the offence in the same way that premeditation reflects an individual more worthy of censure, and the expression of remorse lowers an offender's blameworthiness. The position advanced is that previous convictions are relevant to an offender's level of culpability and therefore have a role to play within a retributive sentencing framework. One argument rests on the premise that criminal responsibility and culpability are independent concepts with very different conceptual topographies.

Should previous criminal convictions count against offenders at sentencing? If they are relevant for the purposes of sentencing, how should they be considered? How much weight should they carry relative to the seriousness of the current offence? These are among the oldest and most contentious questions in the field of criminal sentencing and have been addressed and contested by jurists, scholars, criminal practitioners, and legislators for centuries. If sentenced to a term of custody, offenders with previous convictions are treated more severely than first offenders. As the term implies, a recidivist sentencing premium mandates that as an offender accumulates more convictions, the sentence imposed at subsequent sentencing hearings becomes progressively more severe. This book examines the nature and consequences of the recidivist sentencing premium. The challenge is to understand whether punishing recidivists or repeat offenders more harshly is an example of mere punitiveness or whether it reflects a more fundamental, principled, and desirable sentencing policy. Three different sentencing models are considered: the ‘cumulative sentencing’ model, ‘flat-rate’ sentencing, and ‘progressive loss of mitigation’.

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.

Where does the intuitive sentencer stand with respect to the use of previous convictions at sentencing? At first glance the answer would seem straightforward. A survey of the general public in the United Kingdom on whether they would support a ‘three strikes and You're out’ scheme, whereby offenders automatically receive a prison sentence if they are convicted of any three crimes, revealed that four-fifths of the polled public endorsed this tough recidivist sentencing proposal. These results suggest that public support for cumulative sentencing is overwhelming — and for an offender convicted for only the third time. In reality, community reaction to the punishment of repeat offenders is more nuanced. This chapter explores the nature of public opinion with regards to the sentencing of repeat offenders. First, it discusses related research in the field of public attitudes to the recidivist sentencing premium. This is followed by a description of findings from original research drawing upon a survey of the public in the United Kingdom.

This chapter advances the proposition that while multiple offenders are more culpable than single-crime offenders and should thus be treated differently, multiple offenders should not be punished to such an extent that the state ends up treating an offender who has committed multiple offenses more harshly or in the same way as those who have committed more serious offenses, given the message each punishment communicates about the character defects about the recipient of the punishment. Following this principle would likely result in a presumption in favor of concurrent sentencing or at least “bulk discounts,” where even if an offender is guilty of committing multiple offenses, the punishment for each additional offense is smaller than that for the first offense. This chapter further argues that the practice of bulk discounts for multiple offenders is consistent with the practice of imposing the recidivist premium on those who, after having been convicted and punished, continue to reoffend.

As noted earlier, retributive sentencing theorists fall into one of two camps: advocating a flat-rate approach in which previous convictions play no role, or espousing the very limited use of priors in a way consistent with the principle of the progressive loss of mitigation. It is sometimes argued that crime by repeat offenders is more serious and therefore should be punished more severely. Although many retributive theorists oppose even the limited use of previous convictions, earlier writers used retribution to justify harsher treatment for repeat offenders. This chapter explores the most widely-held justification for the limited use of previous convictions — the so-called lapse theory. It then addresses R. A. Duff's penitential theory of legal punishment that conceives of criminal sentencing as a communicative enterprise. With respect to the recidivist sentencing premium, Duff rejects any model that prescribes increasingly severe penalties to reflect increments in the offender's criminal record, but does allow a modest degree of mitigation for the first offender or the offender with only one or two priors.

This chapter turns to the critical question of the practice of imposing harsher sentences on recidivists. It describes participants' general reaction to the concept of harsher sentencing for repeat offenders and summarises the sentences that they favoured in response to specific case scenarios. As will be seen, there was widespread acceptance of the recidivist sentencing premium, although many individuals took exception to the way in which the premium was imposed, and held the view that insufficient consideration had been given to their efforts to desist from offending. This chapter also considers repetition as a justification for greater intervention, dimensions of criminal record, scepticism about deterrent value of a recidivist sentencing premium, attitudes to the use of custody as a sanction, and excessive focus of the court on the crime.

This chapter reviews the principal findings and conclusions of the volume, discusses the role that public opinion should play, and makes some modest proposals with respect to the sentencing of repeat offenders. The principal points emerging from this study include the following: statutory frameworks around the world all consider an offender's previous convictions at sentencing, although there is considerable variability in the way in which this information influences the severity of sentence imposed; sentencers generally follow a cumulative sentencing model, a pattern that emerges in jurisdictions that ostensibly pursue a different sentencing model, namely, the progressive loss of mitigation; sentencing theories vary considerably in the way that they justify the imposition of harsher sentences on repeat offenders. From the perspective of incapacitation or individual deterrence, the recidivist sentencing premium is easily justified. Public support for some kind of recidivist sentencing premium can be explained by reference to public knowledge of offenders, offending, and the sentencing process, as well as lay theories of culpability.

This chapter focuses on the punishment of offenders sentenced for multiple offenses that have not been separated by independent prosecution and sentencing. Most scholars believe that the striking discrepancy between sentences imposed on multiple and repeat offenders cannot be justified in terms of retributivism. The existing solutions to the overpunishment of offenders convicted of multiple crimes invoke concurrent sentencing or the exercise of mercy by a sentencing court. Both approaches mitigate excessive punishment, but also create a number of problems. This chapter first considers the nature of the problem and the deficiencies of current approaches to multiple-offense sentencing before explaining how much of the gap between the repeat and the multiple offenders’ sentences can be accommodated within a retributive framework. It also describes culpability and harm as independent elements of deservedness and argues in favor of reduced sentences when the offenses are related to one another.

This chapter draws upon interviews with a sample of repeat offenders conducted in 2007. The interviews explored convicted offenders' reactions to the criminal sentencing process, and in particular, the recidivist sentencing premium. The chapter summarizes findings from previous research and explores general perceptions of the sentencing process, specifically the issues of fairness, proportionality, and consistency. It discusses why the views of offenders are important, along with defiance theory, offender reactions to sentencing and sentencing reform, interviews with convicted offenders from England, participants' views of sentencing in the news media, and sentencing decisions made by professional judges versus lay magistrates.