Just Sentencing # 6: The problem of sentencing enhancements for prior and multiple current convictions

Richard Frase, guest-blogging on Just Sentencing: Principles and Procedures for a Workable System (Oxford 2012):

In my first five guest-blog posts I discussed the need for a new hybrid sentencing theory, limiting retributive and other core principles underlying my model, the reasons why presumptive guidelines are the best choice among existing sentencing structures, and how my model incorporates that structure and other procedures.  My last two posts will examine two of the most difficult and important problems of punishment theory and practice, each of which is the subject a chapter in my book. 

Today’s post addresses sentencing enhancements based on the offender’s prior and/or multiple current convictions.  Although separate (and inconsistent) rules often apply to prior convictions and multiple current offenses, these can also be seen as simply two forms of repeated offending.  Repeat offending is generally deemed to justify greater sentencing severity to facilitate incapacitation, other risk management measures, and deterrence. Some writers have also offered retributive justifications for prior-record enhancements.  Existing laws and practices reflect these various theories: prior-record enhancements are found in virtually all modern sentencing systems (but with widely-varying formulas). And these enhancements apply frequently — the majority of offenders have at least some prior record.  As for multiple current offenses, most systems authorize consecutive or other enhanced sentencing. 

The rationales for and permissible degree of both types of repeat-offender enhancements are greatly in need of clarification and limitation.  Here is how the sentencing model in my book resolves these issues.

Prior convictions. Retributive theorists have failed to articulate convincing or even consistent rationales to justify and limit prior-record enhancements. Some retributive theorists reject all such enhancements; others argue that an offender’s blameworthiness steadily increases, the more serious his prior conviction record; a third group claims that offenders with little or no prior record are not fully blameworthy for their latest crime(s).  Utilitarian theories provide more consistent and plausible rationales; in particular, it seems reasonable to view the extent of an offender’s prior record as a useful proxy for his degree of recidivism risk.  But there has been almost no empirical validation of the effectiveness and efficiency of existing criminal history scores, and score components, as predictors of recidivism. Substantial risk-based enhancements also undercut the important retributive (and utilitarian) goal of making sentence severity proportional to current-offense severity.  

Chapter 4 of my book examines various rationales for prior record enhancements, concludes that heightened offender risk provides the most satisfactory rationale, and proposes a structure to ensure that such enhancements operate within offense-proportionality limits.  Specifically, I argue that guidelines offense severity levels (grid “rows”) should be substantially non-overlapping.  (These are typical-offense sentencing ranges; aggravating or mitigating circumstances of the current offense(s) permit departure and imposition of a higher or lower sentence.)  With this simple structural change,  offender prior record will have less weight, in determining recommended non-departure sentences, than under many existing guidelines systems. The strongly overlapped severity levels found in those systems mean that high-record offenders have recommended custody terms as much as thirty times longer than first offenders, and more severe than sentences recommended for low-record offenders who have committed much more serious crimes. Reducing the weight given to prior convictions will thus better achieve limiting-retributive and expressive (offense seriousness) purposes than under many existing guidelines systems. (However, almost all guidelines already partially accept the priority of offense seriousness: prior-record enhancements are “capped” — at some point additional priors have no further effect on recommended-sentence severity.)  Another important reason to limit the sentencing weight of prior convictions is that this factor tends to have a much greater impact on racial and ethnic-minority offenders, thus substantially increasing the racial disproportionality of inmate populations, compounding the post-release disadvantage of these offenders, and threatening social equality goals.

My book also recommends that guidelines systems develop empirically validated risk-assessment tools to supplement or replace criminal history scoring as the mechanism to determine recommended sentences within each offense-severity level. Such tools would only employ normatively acceptable factors (including some components of prior record) that are shown to add risk-predictive power without unacceptably high racial disparate impact. It seems likely that a major low-risk factor will be the offender’s age; criminological research has repeatedly shown that many offenders in their 40s and older are past their peak offending years or likely to soon desist entirely.  Yet these are often the offenders with the most extensive criminal history scores; almost all guidelines systems apply such scores without regard to offender age, thus locking up large numbers of aging, low-risk offenders (most of whom have been convicted of medium- or low-severity crimes).

Multiple current offenses.  Retributive and utilitarian theory is even more inadequate — indeed, almost completely silent — on the question of which multiple offenses should be sentenced consecutively; perhaps for that reason, most sentencing systems simply leave this matter up to the court’s discretion.

I argue that there should be a general presumption in favor of concurrent sentencing. The guidelines in Minnesota and several other states include a similar presumption, but with exceptions whose scope and rationales are often unclear. (I also argue in favor of several forms of “concurrent plus” sentencing found in several existing systems, in particular: counting multiple current offenses as prior convictions.)  When the presumption is overcome and consecutive sentences are imposed, there should be a further presumption that, except in very exceptional cases, the total prison term will not exceed twice the highest recommended (top-of-cell) term applicable to the most serious of the multiple crimes being sentenced.  A similar presumptive doubling limit is found in several state guidelines systems and in the revised Model Penal Code. The (now-advisory) federal guidelines formula is even stricter, limiting multiple-count sentencing enhancements to about 50 percent (above the most-serious-crime sentence).

The two presumptions set out above serve the goal of parsimony and lessen the risk that many defendants with multiple current offenses will receive sentences in excess of desert and valid utilitarian punishment needs. Although such needs and desert do justify consecutive sentencing in some cases, in other cases they do not.  For example, multiple current offenses can reflect short-term or situational factors such as a lost job that suggest lower culpability and dangerousness.  And in multiple-current-offense cases we can never be sure that the offender would have gone on to commit the later crime(s) if he had been caught, punished, and perhaps rehabilitated after the first one. The presumptions in favor of concurrent sentencing and against more-than-doubling give these offenders the benefit of the doubt, in the absence of contrary evidence justifying departure from one or both presumptions.

A further reason to limit the size of consecutive-sentence (and also prior-conviction) enhancements is that eligibility for such enhancements is subject to the vagaries of prosecutorial charging and plea-bargaining discretion — prosecutors can maximize, or minimize, the number of current charges, and thus also the offender’s future criminal history score.

That’s it for now.  My last guest-blog post will address another difficult and important problem of punishment theory and practice: racial disproportionality in prison and jail inmate populations.  I’ll also offer a few concluding remarks to wrap up this series of posts.

Prior posts in series so far:

• Overview
• Existing sentencing theories are inadequate
• A restated and expanded limiting retributive model
• Existing sentencing structures – Which are the best?
• My sentencing model's structural features and procedures