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February 2, 2014

"Sentencing and Prior Convictions: The Past, the Future, and the End of the Prior Conviction Exception to Apprendi"

The title of this post is the title of this interesting and potent new paper now available via SSRN and authored by the always interesting and potent Nancy King. Here is the abstract:

This article traces the fascinating history of early efforts to identify defendants and their prior convictions as well as the evolving use of prior convictions in aggravating punishment; examines how contemporary repeat offender penalties fall short of punishment goals and contribute to the racially lopsided profile of punishment today; and critiques potential justifications for the prior conviction exception to the rule in Apprendi v. New Jersey, arguing that the exception should be abandoned.

The article summarizes empirical research testing the relationship between prior convictions and examining the efficacy of repeat offender sentences in reducing recidivism; collects commentary on the use of risk prediction in sentencing; surveys state-by-state eighteenth century authority that belies the claim that denying element status to prior convictions that raise the range of punishment is a longstanding tradition; evaluates the weaknesses of the case law underlying the Court's decision in Almendarez-Torres; argues that defendants need not be prejudiced when prior convictions are treated as elements; and observes that the original reason that a very small number of states in the nineteenth century stopped requiring prior convictions to be treated as elements — namely, that an offender’s criminal history was often unknown unless or until a warden recognized him — no longer exists.

An earlier version of the article was delivered as the Barrock Lecture on Criminal Law at the Marquette University Law School.

February 2, 2014 at 05:01 PM | Permalink

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Comments

Umm, I don't see that treating repeat offenders more harshly than someone on their first trip through the criminal justice system is intended to reduce recidivism (at least not in any sense other than removing opportunities for further criminality). It is done in order to protect the law-abiding from those who have a demonstrated unwillingness to conform their behavior to even the rather low bar that society demands.

Just as parents ramp up the level of punishment for repeated transgressions by their children, society ramps up punishment for repeat offenders.

Posted by: Soronel Haetir | Feb 2, 2014 6:14:35 PM

I struggle to see how a defendant wouldn't be prejudiced by introduction of prior convictions, which is one reason I struggle to accept expanding Apprendi to prior convictions. Using categorical and modifIed categorical approaches to convictions strikes me as a more sensible route overall.

Besides, Apprendi talks about facts proved or admitted at trial. Prior convictions were admitted or proved at a trial. So the distinction isn't as arbitrary as it seems at first glance.

Posted by: Erik M | Feb 3, 2014 9:11:01 PM

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