Are Record-Based Enhancements a Cost-Effective and Fair Way to Reduce Crime?
Even if a guidelines criminal history score, other prior record formula, or some combination of record and non-record factors accurately reflects the offender’s recidivism risk, sentence enhancements based on that formula are not justified unless the increased penalty will prevent further offending in a cost-effective, fair, and legal manner. This chapter summarizes the voluminous literature on the relationship between punishment severity and crime. That literature shows that increased penalty severity has at best a modest deterrent effect on offending rates, and is as likely to cause more crime as it is to prevent crime by means of general and specific (individual) deterrence and/or incapacitation. The chapter also discusses whether such enhancements—particularly when based on non-record factors such as age and gender—are unfair to offenders, and whether non-record, risk-based enhancements are consistent with constitutional requirements of proof beyond reasonable doubt and jury trial under the Blakely v. Washington doctrine.