The Model Regime

This chapter outlines a model regime of prior record enhancement (PRE), designed to promote more rational, parsimonious, and humane sentences. It provides general principles and specific rules reflecting what is known about PRE justifications, costs, benefits, and adverse consequences. The principles specify which punishment purposes justify PRE, while also recognizing the overarching importance of maintaining proportionality to conviction offense seriousness, ensuring that PREs are necessary and cost-effective, minimizing racial disparities and imprisonment of aging and nonviolent offenders, avoiding interference with offender efforts at desistance, and striking a reasonable balance between rule and discretion. The model’s PRE counting rules exclude juvenile and misdemeanor priors, convictions more than 10 years old, upweighting of felonies based on their severity or similarity, and custody status points. First offenders receive substantial sentence mitigation, after which PRE magnitude increases modestly and is capped. High-history offenders are punished no more than twice as severely as first offenders.

Problematic Components Found in Many Criminal History Formulas

The focus of this chapter is on five components of criminal history scores that lack strong justification from the perspective of recidivism risk, retribution, or both rationales. These components are: juvenile court adjudications, misdemeanor convictions, the offender’s “custody status” when committing the offense being sentenced (whether he was incarcerated or on some form of criminal justice release), weighting prior felony convictions according to their severity ranking or other seriousness indicator, and the policy in some jurisdictions of according extra weight to prior offenses that were similar to the offense being sentenced (“patterning” premiums). The chapter then presents data from Minnesota, showing how the inclusion of the first four of these score components greatly increases the frequency and duration of recommended and imposed prison terms. The chapter concludes that criminal history scores should not routinely include any of these five problematic components, although judges might consider them as potential aggravating factors.

The Long Arm of the Law

This chapter examines the question of whether and when prior convictions from many years past should no longer be considered at sentencing. The chapter first surveys the varying “look-back” and crime-free “gap” rules found in American guidelines systems, noting that many jurisdictions have no look-back limits for some or all offenders. This discussion also examines the question of when the look-back “clock” starts to run, in applying each of the existing rules—that date could be as early as the date of the prior sentencing, or as late as discharge from probation or parole. The chapter then considers the ways in which different approaches to look-back relate to the punishment rationales—offender risk and culpability—that are thought to justify criminal history enhancements. It also presents a summary of recent research surveying public opinion about the desirability and formulation of look-back limits. The chapter concludes with proposals to limit look-back.

What Other Factors Indicate High or Low Recidivism Risk?

If prior record enhancements are justified as a way to manage offender risk, policymakers need to consider other, non-record risk factors that may improve risk-prediction accuracy. This chapter examines the limited extent to which guidelines systems have incorporated such factors—usually as a ground for departure or other adjustment after the recommended sentence has been determined based on current offense and prior record. The chapter summarizes the offense factors and non-criminal-history offender factors, such as the offender’s current age and criminal thinking patterns, that criminological research has found to be good predictors of the risk of re-offending, and that are often included in widely used risk assessment instruments such as the Salient Factor Score, CSRA, and LSI-R. Very few of these non-record risk factors have been given a formal role in guidelines sentencing. The chapter argues that judges should be allowed to consider some of these factors, especially older age.

Introduction

This chapter provides an overview of the book, including the following major topics: why this neglected topic is so important; the ubiquity of prior record enhancement in modern sentencing systems, and their particularly powerful roles in U.S. jurisdictions with sentencing guidelines; the wide variations in the criminal history scoring formulas used in guidelines, with respect to matters such as which prior crimes and other factors are included, the weight each receives, and the degree to which a high score increases recommended sentence severity; the unclear punishment rationales for such enhancements; and the numerous negative consequences of these enhancements— increasing the size and expense of prison populations, undermining the important goal of punishment in proportion to offense severity, increasing the need for prison beds to house property and other nonviolent offenders, generating large numbers of aging prison inmates, contributing to racial disproportionality in prison populations, and undermining offenders’ efforts to reintegrate into society.

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.

Retributivist Perspectives on an Offender’s Criminal or Crime-Free Past

Proponents of retribution (Just Deserts) as a punishment rationale sharply disagree about whether repeat offenders are more culpable for a new offense, in comparison to offenders with little or no prior record. Some retributivists assert that prior convictions should have no bearing on the offender’s culpability and deserved punishment for his latest offense. Other retributivists argue that first offenders are less culpable and deserve sentence mitigation; some of these writers would extend a lesser degree of mitigation to offenders with only a minor record. A third group of retributivists views prior crimes as an aggravating factor, justifying steady increases in punishment severity as offenders acquire more convictions. This chapter critiques each of these three approaches. It argues that first offenders deserve substantial mitigation, that sentence severity should rise only modestly with additional convictions, and that such enhancements must be “capped” to preserve proportionality to the crime being sentenced.

Adverse Impacts on Offense-Based Proportionality and Prison-Use Priorities

This chapter shows how powerful criminal history enhancements undermine important goals of guidelines reforms. First, these enhancements undermine the goal of making punishment severity proportional to the seriousness of the offense for which the offender is being sentenced; if prior record receives more weight in sentencing, conviction offense seriousness receives less weight. Second, these enhancements counteract the goal of reserving expensive prison beds for offenders convicted of violent crimes—powerful criminal history enhancements shift the balance of prison admissions and inmate stocks toward property, drug, and other nonviolent offenders. Third, prior record enhancements change the composition of prison populations by risk level—older offenders often have more prior convictions but declining recidivism risks, so criminal history enhancements increase the number of aging, low-risk prison inmates. The formulaic nature of such enhancements also over-predicts the risk level of some younger offenders. The chapter concludes with proposals for limiting these adverse effects.

The Effects of Prior Convictions on Sentence Severity

This chapter explores the degree to which a higher criminal history score increases the severity of recommended and imposed sentences in U.S. guidelines systems. The impact of criminal history on sentence severity is measured in several ways. One set of measures assesses the extent to which a high criminal history score translates into increased sentencing severity—by causing the offender to be recommended for immediate commitment to prison, and/or by increasing the duration of the recommended prison or other custodial sentence. Other measures of prior record enhancement magnitude relate to the criminal history formula itself—the components of the score and the way in which each component is weighted. These rules determine how quickly offenders acquire a high score, triggering the most severe impacts, and they also determine which offenders are most likely to receive high scores. The chapter concludes with proposals for regulating the magnitude of prior record enhancements.

Prior Record and the Risk of Recidivism

It is generally assumed that prior convictions provide a useful proxy for the offender’s risk of committing further crimes, and as a general proposition that assumption is well supported by research. But as this chapter shows, there is much less research on how well particular prior record formulas predict recidivism risk. This chapter identifies the elements of guidelines criminal history scores that appear to be designed to measure risk, reviews the limited research assessing the accuracy of criminal history scores and score components as predictors of subsequent offending, and examines the closeness of fit between predicted increases in risk, as the criminal history score rises, and the increments in sentence severity that are prescribed by grid-based guidelines systems. The chapter also argues against the use of rigid prior record enhancement formulas, and in favor of giving judges power to adjust sentences to take into account case-specific variations in recidivism risk.