The American penal system is broken. The state of mass incarceration is wreaking havoc on individuals, families, and communities. These effects are unequally levied upon and borne by communities of color and people who are poor. This state of affairs is morally odious and intolerable. One main component of mass incarceration is the deployment of the “recidivist premium”-- that is, the imposition of additional punishment on repeat offenders compared to first time offenders who commit the same offense. This Article contends that, in light of our reasons for punishment, the recidivist premium is unjustified and harmful. As a result, I argue that we should abolish our penal system's deployment of the recidivist premium based on our current state of information.
This Article sets forth a comprehensive case against the use of the recidivist premium. First, I show that the recidivist premium does not accord with our retributive theories of desert. Then, I explain that, on our best empirical evidence, the recidivist premium does not further the principal consequentialist benefits of punishment, namely deterrence and incapacitation. Finally, I show that the recidivist premium does not advance the aims of sentencing design, including consistency, calculability, predictability, and efficiency.
To live up to our ideals of equality and human dignity, we must restore the rights of those convicted of crimes when they reenter society and treat them as full members of their polity. Any differential treatment must be specially and rigorously justified. The recidivist premium does not satisfy that demanding standard, and thus, it should not stand.
About the Author
Guha Krishnamurthi, Associate Professor of Law, University of Maryland Francis King Carey School of Law. Thanks to Yonathan Arbel, W. David Ball, Priya Baskaran, Heather Baxter, Mitch Berman, Brian Bix, Meghan Boone, Josh Braver, Jacob Bronsther, Michal Buchhandler-Raphael, Zviko Chadambuka, Jesse Cheng, Hadar Dancig-Rosenberg, Mihailis Diamantis, Antony Duff, Daniel Epps, Sheldon Evans, Lindsay Farmer, Ian Farrell, Eric Fish, Thomas Frampton, Jens Frankenreiter, Daniel Fryer, Stephen Galoob, Catherine Grosso, Alex Grzankowski, Jonathan Harris, Brandon Hasbrouck, Fareed Nassor Hayat, Paul Heaton, Anjelica Hendricks, Andrew Jennings, Charanya Krishnaswami, Carla Laroche, Youngjae Lee, Zina Makar, Matt Matravers, Jamie Macleod, Sandy Mayson, Marah Stith, Allegra McLeod, John Meixner, Kathryn Miller, Rachel Moran, Alex Platt, Daniel Richman, Shalev Roisman, Peter Salib, Daniel Schaffa, Jocelyn Simonson, Mike Simons, Alex Sinha, Max Stearns, Martin Stone, Sarah Swan, James Tierney, Eric Vogelstein, and Matt Wansley for insightful comments, conversations, and questions. I also thank participants of the Conference on the Political Turn in Criminal Law, the Junior Faculty Forum at University of Richmond School of Law, CrimFest at Cardozo Law School, the Southeastern Association of Law Schools Annual Meeting, the Chicagoland Junior Scholars Conference, the Cardozo Law School Faculty Workshop, the University of Houston Law Center's Faculty Workshop, the University of Maryland Carey School of Law's Faculty Workshop, the Midwestern Law & Economics Association, and the Maryland Carey Law Constitutional Law and Economics Workshop. Thanks to the editors of Tulane Law Review for their editing brilliance.
Citation
98 Tul. L. Rev. 411