Recidivism as Omission: A Relational Account

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. I. Introduction Are repeat offenders more culpable than first-time offenders?1 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.2 There may be many reasons for this practice. Some argue that repeat offenders have demonstrated a propensity not to be deterred by ordinary sanctions and must be threatened with especially harsh consequences to prevent them from reoffending.3 Others argue that the point of harsh punishments on repeat offenders is to keep those most likely to reoffend away from the public so that they can no longer pose a danger to others.4 Criminal history may also be considered relevant in the way an offender's general personal background and character are considered relevant during the sentencing stage. If rehabilitation is considered to be an important purpose of punishment, then it seems to follow that sentencing should take into account whatever information may aid the legal system in deciding what type and what amount of punishment are appropriate to reform individual offenders.5 These three rationales-deterrence, incapacitation, and rehabilitation-are prima facie plausible as justifications for the practice of considering criminal history in sentencing, at least in theory.6 However, once we ask whether repeat offenders deserve more condemnation than first-time offenders for the same offense, the picture turns fuzzy. It is commonly, and casually, assumed that repeat offenders deserve more punishment than first-time offenders. The Federal Sentencing Guidelines, for instance, justify their heavy reliance on criminal history partly on the argument that "[a] defendant with a record of prior criminal behavior is more culpable than a first offender and thus deserving of greater punishment."7 The political rhetoric surrounding California's three-strikes law8 frequently included the language of desert and retribution, with some people saying that repeat offenders deserve draconian prison sentences for being recidivists. …