Justice in Sentencing: The Role of Prior Record of Criminal Involvement

• NCJ Number: 109761
• Journal: Journal of Criminal Law and Criminology Volume: 78 Issue: 3 Dated: (Fall 1987) Pages: 614-643
• Author(s): A M Durham
• Date Published: 1987
• Length: 30 pages
• Publication Format: Article
• Publication Type: Legislation/Policy Analysis
• Language: English
• Country: United States of America

Annotation

This article reviews and analyzes arguments pertaining to the use of prior criminal record in sentencing under the justice model.

Abstract

The discussion is only marginally concerned with the various utilitarian justifications for the use of prior record in sentencing. The arguments considered are organized into four general classifications: arguments of implicit attribute, elevated harm, leniency, and emotive reparation. Arguments of implicit attribute assert that the very commission of repeat offenses implies personal attributes not apparent through more direct evidence. Arguments of elevated harm assert that the harm produced by repeated offenses exceeds the harm resulting from an initial criminal act. The leniency argument holds that enhanced punishments for recidivists constitute the withholding of leniency reserved for nonrecidivists. Emotional-recompense arguments support the victim's right to satisfaction at having the victim suffer additional punishment because of repeated crimes. The analysis indicates that the viable rationales for the use of prior record under the justice model require contamination of the fundamental retributive foundations of the model, which focus on punishment commensurate with the severity of the current offense. 97 footnotes.