NCJ Number
99930
Journal
Criminal Justice Ethics Volume: 4 Issue: 2 Dated: (Summer/Fall 1985) Pages: 29-50
Date Published
1985
Length
22 pages
Annotation
This analysis examines whether recidivist statutes can be consistent with the principles of justice and suggests the use of the just deserts principle as a standard against which such statutes can be tested.
Abstract
It is suggested that of the four reasons (reform, deterrence, incapacitation, and retribution) given for punishment, only retribution can provide the basis for a theory of just punishment. The retributist approach holds that punishment is just because it is deserved: punishment for disobeying a law helps assure obedience and reestablishes the balance between the benefits and burdens of obeying the law that was disturbed by the criminal act. The principle of just deserts requires the punishment to be proportioned to the unfair advantage the offender has taken by lawbreaking. In the case of the recidivist, as compared to the first offender, this unfair advantage can be seen to be that of taking more than one's fair share of unfair advantage. Thus, it can be argued that because of this, the recidivist deserves additional punishment or that the recidivism itself constitutes an additional crime to be punished. By applying the just deserts principle, it is possible to assess the justice of graded vs. ungraded recidivist statutes. The latter may result in punishment that is far more than deserved. Graded statutes that consider both the charged offense and previous lawbreaking should result in proportionate, and therefore just, punishment. The U.S. Supreme Court decisions in Solem vs. Helm and Rummel vs. Estelle are assessed using just deserts standards. Thirty-three footnotes are provided.