The Recidivist Wants to Be Punished - Punishment as an Incentive to Re-Offend

38 Pages Posted: 4 Nov 2008

Date Written: November 3, 2008

Abstract

A person carries out a robbery and is sentenced to a year in prison. Shortly after having served his sentence, the same person carries out a second robbery in similar circumstances. What punishment should the court impose on such a person? Should he receive a heavier or a lighter sentence? And if he is to be treated differently, then by precisely how much should his sentence be increased or reduced? Two years in prison? Five years in prison? This is the dilemma faced by a substantial number of courts in the world when dealing with criminal cases, since most criminal offences are committed by habitual offenders. Empirically speaking, the trend amongst the courts is to impose a more stringent punishment when it comes to sentencing the recidivist rather than to take an individualistic approach and to judge each case subjectively, despite the fact that the felon in question already paid his debt to society with respect to past transgressions. Moreover, sharp differences in approach exist between different courts, benches and even different judges sitting on the same panel, regarding the degree of severity to be shown when sentencing the recidivist. In this article we shall seek to highlight the impact of recidivism as a factor in sentencing while explaining the judicial and extra-judicial considerations used to justify the stance adopted. Within this framework, a quantitative model shall be proposed as a method for evaluating the influence of recidivism on the severity of sentences, based on an examination of the recidivism factor due to the diminishing marginal utility rule of economics. The purpose of using such a quantitative model is to enable the court to estimate the degree to which sentences handed down to habitual offenders should differ as a result of the recidivism factor.

In order to examine the extent to which the recidivism factor influences sentencing policy, two different groups of problems need to be addressed. The first relates to the definition of the recidivism factor. The issue to be grappled with here is how to go about defining who is a "recidivist". In order to provide answers, the categories of relevant crime involved need to be examined and the connection between them and recidivism evaluated. For example, if a person was to commit a robbery and then shortly afterwards a road traffic offence, should he be regarded as a habitual offender? Moreover, the issue of frequency also needs to be addressed in this context, that is, the minimum and maximum periods between the carrying out of different offences in order to categorize the offender as a recidivist. For example, would it be right to consider a man of seventy convicted of theft as a recidivist because he committed a theft offence when he was 12 years old? On the other hand, if a person was to empty two safe deposit boxes within the space of several minutes should he be seen as a recidivist? A precise definition of recidivism should resolve such difficulties. The second group of difficulties relates to the part actually played by the recidivism factor in determining the severity of sentences. In this context, the first topic to be examined is the orientation of the courts regarding the extent to which recidivism affects the severity of the sentence to be handed down, as opposed to leniency, an orientation for which legal and social justifications are given, enabling the court to punish the offender again for those same activities for which he has already paid his debt to society. In the light of an examination of the relevant trend and the justification given to support it, the impact of recidivism as a factor in sentencing policy needs to be quantified. Thus for example, if the trend is to impose stiffer sentences on recidivists as opposed to non-habitual offenders, then if an offender in each of these categories carried out an identical crime in identical circumstances, then the question arises as to what extent should the punishment imposed on the former exceed that imposed on the latter. Perhaps one third of the sentence given for the original crime should be tagged on to the recidivist's sentence; perhaps half, or more, or less. The quantitative model suggested should provide a solution for these types of dilemmas. It will, however, also show that at some point the punishment imposed will act as an incentive in encouraging recidivists to re-offend.

The proposed model is of an objective nature, forming as it does an amorphous shape to be molded into recognition by the details of each case. Consequently, the proposed model has to be able to counter the possible argument that the considerations to be taken into account by the court in deciding whether to impose either a severe or a lenient sentence on any given criminal are fundamentally subjective, an approach which also takes into account the subjective manner in which each offender perceives the punishment imposed on him, since, for example, different offenders will react in diverse ways to a one year prison sentence, even if the objective details of their cases appear identical in every way.

Keywords: recidivism, criminal law, punishment

Suggested Citation

Hallevy, Prof. Gabriel, The Recidivist Wants to Be Punished - Punishment as an Incentive to Re-Offend (November 3, 2008). Available at SSRN: https://ssrn.com/abstract=1294377 or http://dx.doi.org/10.2139/ssrn.1294377

Prof. Gabriel Hallevy (Contact Author)

Ono Academic College, Faculty of Law ( email )

104 Zahal St.
Kiryat Ono, 55000
Israel

HOME PAGE: http://www.ono.ac.il

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
237
Abstract Views
1,665
Rank
234,554
PlumX Metrics