An Argument Against the ‘Recidivist Premium’: Taking into Account Deep Social Disadvantage and the Far-Reaching Effects of Collateral Consequences

• In Event: The Roles of Risk and Recidivism in Sentencing

Abstract

In Retributivism Has a Past, Has It a Future?, Tonry (2011) notes that punishment theorists, at times, overlook fundamental questions, including the question as to whether and to what degree offenders ought to be punished more severely because they have previously offended, which is known as the “recidivist premium.” In this paper, I devise a normative account that argues against the recidivist premium on two grounds. First, in the American criminal justice system the recidivist premium should be rejected because it unfairly penalizes previous offenders who disproportionately experience deep social disadvantage. Moral responsibility of their offenses cannot be justified, especially in retributivist terms since such arguments tend to justify harsher punishments on the basis that the previous offender, for example, has a bad character, while ignoring background factors and systemic inequalities. Secondly, the penal system itself structurally increases the likelihood that offenders will recidivate through the use of collateral consequences that are attached to criminal convictions (e.g., civil state penalties). I advance my argument by citing empirical studies and detailing how far-reaching collateral consequences are and how they incapacitate former offenders when they leave prison, which makes meaningful reintegration into society and the reduction of recidivism a challenge.

Author

• Stephen Wulff, University of Minnesota