NCJ Number
224341
Journal
British Journal of Criminology Volume: 48 Issue: 4 Dated: July 2008 Pages: 468-481
Date Published
July 2008
Length
14 pages
Annotation
This article explores the relevance of previous convictions as a factor in sentencing an individual for a current conviction, proposing a culpability-based justification for considering previous convictions at sentencing.
Abstract
A sentencing system that ignores an offender’s previous criminal record, such that an offender with six previous convictions receives the same sentence as a first-time offender, would not seem rational or just to the public mind. Proportionality and the recidivist sentencing premium are embedded in community concepts of just punishment. If sentencing practices diverge widely and consistently from public opinion, the legitimacy of the judicial system would be compromised. On the other hand, allowing courts unrestricted discretion to incorporate previous convictions as a factor in sentencing for a current conviction will result in the undermining of proportionality and the creation of a sentencing system that punishes cumulative behaviors rather than the behavior being currently adjudicated. The best solution involves recognizing the relevance of previous convictions to offender culpability, and hence sentence severity, and then constraining the influence of previous convictions on the determination of the current sentence. Sentencing factors can be conceptualized as falling into different categories that reflect differing levels of importance and priority under a retributive rationale. The primary category should relate to factors stemming from the offense of current conviction. Circumstances such as premeditation, the use of unnecessary force, and the victimization of vulnerable people fall into this first category. These should be the most powerful aggravating circumstances bearing upon the sentence. Secondary aggravating factors relate to the offender, such as the existence of previous convictions or the fact that he/she was on probation or parole at the time of the latest offense. Sentences must adhere strictly to the proportional weight given to these categories of sentencing factors. 42 references