Prior Record Enhancements at Sentencing: Unsettled Justifications and Unsettling Consequences

Abstract

The consequences of a person's prior crimes remain continue after the debt to society ispaid and the sentence is discharged. While the practice of using prior convictions to enhance the severity of sentence imposed is universal, prior record enhancements (PREs) play a particularly important role in US sentencing, and especially in guidelines jurisdictions. In grid-based guidelines, criminal history constitutes one of the two dimensions of the grid. PREs have only recently received critical scrutiny by scholars. The enhancements are hard to justify on retributive orpreventive grounds Retributivist theories generally reject the use of robust, cumulative record-based enhancements. Research into recidivism suggests that the preventive benefits of prior record enhancements have been overstated. The public support the consideration of prior convictions at sentencing, but there is convincingevidence that people are less punitive in their views than are many US guideline schemes. PREs have many adverse effects. They exacerbate racial disparities in prison admissions and populations, result in significant additional prison costs, undermine offense-based proportionality, and disrupt prison resource prioritization. The time is ripe for significant policy reform. The consequences of a person's past crimes remain long after the debt to society has been paid and the sentence discharged. Prior convictions affect one's life for decades by impairing job prospects, limiting eligibility for social programs and benefits, and imposing social stigma. Individuals pay for their crimes once and then pay over and over again. Nowhere is the impact of prior convictions more direct or more palpable than at

Risk assessment savvy: The imperative of appreciating accuracy and outcome

“…As has been argued elsewhere (Hester et al, 2018; Hester, Frase, Laskorunsky, & Mitchell, 2019), as risk is a utilitarian‐based concern – i.e., reducing the causes and consequences of potential future crime – even when a judge has been convinced that a person is a high‐risk individual, the judge should carefully think through how any sanction imposed would address that concern. Current evidence suggests that adding length to a prison term does not increase general or specific deterrence (see Hester et al, 2018). A prison term will incapacitate a person, but as a strategy, incapacitation is overly broad and imprecise.…”

“…For example, a sentencing system could tie presumptive prison commitments to high risk designation; tie alternative sanctions to low risk designations; multiply or divide the length of whatever sanction based on the risk designation; merely provide the risk information to the judge for consideration; or incorporate the information in some other way. A number of scholars have raised issues over guideline criminal history scores, which often seem to be used as very crude risk proxies (Hester, Frase, Roberts, & Mitchell, 2018). It is possible that a guidelines system could incorporate a more nuanced risk assessment in the place of a criminal history dimension.…”

Tackling selection bias in sentencing data analysis: a new approach based on a scale of severity

“…It is therefore clear how analyses based on sentence length would have severely underestimated the effect of previous convictions on sentence severity. Substantively, the fact that previous convictions can more than double the severity with which the same offence is dealt with, questions the assumed principle of offence-based proportionality in England and Wales, and demonstrates that this issue is not confined to US jurisdictions (Hester et al, 2018). It should also be noted that the marginal effect is strongest when transitioning from no previous convictions to one to three previous convictions, with that effect decaying as the number of previous convictions increases.…”

The Evolution of Sentencing Guidelines in Minnesota and England and Wales

“…The role of prior crimes in the US guidelines has attracted considerable attention from scholars in recent years (e.g., Hester et al, 2018;Frase and Roberts 2019;Hamilton 2015;Rosen 1997;Roberts, 1994;1997;von Hirsch, 1994) and there is a growing consensus that the US approach suffers from several problems. The principal deficiency of the US approach (including Minnesota) is the reach of the guidelines, and the magnitudes of enhancements.…”

“…It is noteworthy that the criteria did not include predictive or retributive validity. Almost no validation work was conducted until the Robina Criminal History Project began work in 2013 (see Frase et al 2015;Hester et al, 2018).…”