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December 17, 2008

"Recidivism as Omission: A Relational Account"

The title of this post is the title of this articleby Professor Youngjae Lee now available via SSRN. This abstract makes clear that this article has to be on every sentencing fan's holiday reading list:

Are repeat offenders more culpable than first-time offenders? In the United States, the most important determinant of punishment for a crime, other than the seriousness of the crime itself, is the offender's criminal history.  Despite the popularity of the view that repeat offenders deserve to be treated more harshly than first-time offenders, there is no satisfactory retributivist account of the "recidivist premium."  This Article advances a retributivist defense of the recidivist premium and proposes that the recidivist premium be thought of as punishment not, as sometimes suggested, for a defiant attitude or a bad character trait, but as punishment for an omission.  The culpable omission that justifies the recidivist premium is, this Article argues, the repeat offender's failure, after his conviction, to arrange his life in a way that ensures a life free of further criminality.

This Article argues that, although how individuals conduct their lives as a general matter is not properly the business of the state, once offenders are convicted of a crime, they enter into a thick relationship with the state and that this relationship gives rise to an obligation for the offenders to rearrange their lives in order to steer clear of criminal wrongdoing.  This theory, "Recidivism as Omission," offers a firm theoretical foundation to justify the recidivist premium because it does not rely on unwarranted inferences from repeat offenders' criminal histories that they are "bad people" or that they are "defiant of authority."  Rather, this account focuses on the significance of conviction and punishment themselves and the ways in which they alter an offender's relationship to the state. In addition, this Article argues that obligations between the state and offenders run in both directions and that we should recognize the ways in which the state may be a responsible actor that should share the blame for recidivists' reoffending.

December 17, 2008 at 10:34 AM | Permalink


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just to be sardonic here, but couldn't this just be summed up by "fool me once, shame on you; fool me twice, shame on me"

Posted by: | Dec 17, 2008 12:01:18 PM

"...unwarranted inferences from repeat offenders' criminal histories that they are 'bad people'..."

Unwarranted? A guy rapes a woman while holding a knife to her throat, goes to prison, gets out, does the same thing again within a week of getting out, and we are "unwarranted" in inferring that he is a bad person? Sometimes I wonder what planet these theoreticians are from.

Many theoretical articles also seem to assume that we must justify punishment on one "pure" theory such as retribution, rather than considering retribution along with utilitarian purposes including incapacitation and deterrence. In my example above, making sure there is no third victim, at least not on the outside, is justification enough for a life sentence.

Posted by: Kent Scheidegger | Dec 17, 2008 6:05:59 PM

Above post, Kent, that is the extreme example. What about a kid, 15 yrs old who is accused of "touching" his cousin. He is without parents and is adjudicated, not even knowing what happened. He grows up, after 10 years of marriage, his wife wants a divorce and has her daughter go tell he molested her. The stepdaughter is 16, older than he was when he was adjudicated. She lies, but everyone believes her because of the juv. adjudication. He is convicted and gets 24 years. It had been 25 years since the adjudication. But, prosecutor doubled sentence due to criminal history, and on the same one old, old juv adjudication, she called him a persistant sexual offender which doubles it again.This happened to my son last year in Kansas. His attorney told him, "In Kansas, you don't have to have evidence, you get accused, your life is over."

Posted by: Dana | Dec 17, 2008 7:55:03 PM

Dana, the problem with your example is that the person is actually innocent the second time (and probably the first time... I can't tell whether you think he was or not). Any punishment at all is unjust for someone who has done nothing wrong, and if people can get convicted of crimes in Kansas without any evidence beyond an accusation, that's completely different from what we're talking about here.

To get at Kent's point, you'd have to assume that the defendant was guilty both times.

Suppose that person A molests his cousin at 15 years old and gets a juvenile conviction. Then suppose that 20 years later, he molests his 16-year-old stepdaughter.

Then suppose that person B has no record at all, but molests his 16-year-old stepdaughter.

Most would agree that, all else being equal, person A should get a longer sentence than person B. The questions are (1) is that right, and (2) why.

Mr. Scheidegger and Prof. Lee both answer yes to the first question, and the discussion is about the second question.

Scheidegger's point is that it's enough to say that empirically, person A is more likely than person B to molest a third person, and thus it's sound policy to protect society by punishing person A more harshly. If person A is actually innocent, then there's no point in asking the question at all.

Lee's point is what some might consider inside baseball about the theoretical reasons for punishment. I find that stuff fascinating and intend to read the article later, but I don't think that getting into the problem of finding a pure retributivist explanation for punishing recidivism will answer your question.

Posted by: anonymous | Dec 17, 2008 10:01:11 PM

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