What About The “Recidivism Premium”?

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 every 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