All jurisdictions impose harsher sentences on repeat offenders (Roberts, 2008). Across the US, sentencing guidelines apply specific counting rules: in many states, offenders are assigned points to reflect the number and nature of their prior convictions (see Frase et al., 2015). What do the public think about this practice?
First let’s consider the Commissions’ justifications for prior record enhancements. These enhancements are usually justified on two grounds. First, repeat offenders deserve more punishment because of their prior offending – they are more blameworthy. Second, repeat offenders deserve harsher treatment because they are more likely to reoffend – they represent a higher risk. Sentencing Commissions sometimes validate their record-based enhancements by reviewing the research on the degree to which repeat offenders are likely to reoffend. But they have completely overlooked the issue of public opinion.
Some academic studies have addressed the question but before reviewing the relevant research, we might first ask why public views are relevant. One reason is that sentencing practices or guidelines which diverged greatly from community views would lack a degree of democratic legitimacy. Imagine a sentencing system which assigned penalties without regard to proportionality. The severity of imposed punishments would bear no relation to the seriousness of the crimes for which they were imposed. Few people would regard this as legitimate, and confidence in the criminal justice system would suffer. Confidence in the courts, the judiciary and the criminal justice system depends to some degree on the perception that each is making decisions about offenders that reflect some degree of social consensus.
Beyond the well-established finding that members of the public impose harsher sentences on offenders with prior crimes (see below), we know little about levels of support for the specific enhancements imposed across the US. For example, many US guidelines enhance the sentence for the current offense based on the offender’s prior record. But some count only those crimes occurring within a particular time period, typically within the past 15 years, while some states consider all prior crimes, no matter how old. Some guidelines assign less weight to older priors, or greater weight to recent priors via a ‘recency’ premium. Where do the public stand on these issues of relevance and weight of prior convictions? Do the public ‘discount’ older prior crimes in the manner that foreign courts discount ‘stale’ prior convictions?
Age and Nature of Prior Convictions in US Guidelines
Most sentencing guidelines assign the same weight to all prior felonies, regardless of the age of the prior conviction (as long as the priors fall within the window of coverage (see Mitchell, 2015)). For example, under the North Carolina grid-based guidelines any class A felony attracts 10 prior record points regardless of the length of time between the previous and current conviction (North Carolina Sentencing and Policy Advisory Commission, 2012). Assigning the same weight to every prior felony without regard to its age assures a consistency of application, yet at a significant cost in terms of calibrating the enhancement imposed to the offender’s level of risk to reoffend or culpability (blameworthiness). Other factors being equal, an offender with a nine year-old prior crime is a lower risk to reoffend than one whose prior occurred a year before the current crime (see discussion in Mitchell, 2015). Similarly, the offender who has passed nine years without further offending is reasonably deemed less blameworthy than one who was convicted only last year. Indeed, at some point, the offender with an old prior conviction may be deemed no higher risk (or no more culpable) than a citizen without a conviction. In the event of ultimate re-conviction, on grounds of risk and retribution he may claim that he has regained his status as a ‘first offender.’
Previous Research: Public Punishment Preferences
Over the years, many studies have asked members of the public to sentence offenders with different criminal histories and all find that the public impose harsher sentences when the offender has prior convictions. This outcome has emerged from research across the US and other western nations including Canada, the United Kingdom, Australia, Japan and Russia (for a review, see Roberts 2008, Chapter 8).
In the US, John Doble conducted research in a number of states including Alabama, Oklahoma and New Hampshire (e.g., Doble Research Associates 1995, 1998). Across a wide range of offenses, support for imprisonment was higher when the offender had prior convictions. For example, the percentage of respondents favoring imprisoning the offender rose from 31% to 68% when a burglar had a prior conviction for the same crime (Doble, 1987). Older research conducted in other states confirms public support for sentencing enhancements. Mande and English (1989) asked people to sentence a typical offender, aged 24, unemployed and convicted of robbery. When the crime was the offender’s first offense, 30% favored prison; this rose to 66% for the same scenario but where the offender had a prior similar conviction. Similar imprisonment differentials emerged for other offenses and from comparable studies in other jurisdictions.
These findings suggest universal public support for a recidivist sentencing premium, but do not clarify whether the public favor sentencing enhancements for preventive or retributive reasons, or a combination of the two. It is possible that the public are primarily concerned about preventing crime and this justifies their support for record-based enhancements. Or they could be more concerned about simply punishing repeat offenders more harshly regardless of the offender’s risk of re-offending. In addition, these studies shed no light on the extent to which different dimensions of criminal history affect public sentencing preferences. For example, are public sentencing decisions sensitive to the age of the prior offense or whether it is of the same category as the current crime?
We also note an important qualification on these older findings. In his Alabama study, Doble compared public sentencing preferences before and after people had been given information about prisons and alternatives. Two findings emerged. First, support for imprisonment declined significantly in the post-test (‘informed’) conditions. Second, the gap in custody rates between first and repeat offenders diminished greatly. The difference in the proportion sentencing the first and the second time burglar fell from 37% to 11% (see Doble and Klein, 1989). This suggests that public opinion is sensitive to information relevant to the issue.
In the current context it would be interesting to know whether public support for prior record enhancements would diminish if the public were made aware of the limitations on these enhancements and the data showing that the predictive power of prior convictions declines significantly over time (e.g., Kurlychek et al., 2006). Finally, it also seems likely that public support for record-based enhancements would diminish if people were made aware of the economic and human costs of record-based sentencing enhancements. Recent research has demonstrated that much of the racial disproportionality in US prison populations arises from the practice of according considerable weight to an offender’s prior crimes (Frase et al., 2015).
The Robina Institute is currently conducting some ground-breaking new research which explores public reactions to prior record enhancements at sentencing. The Institute is exploring whether there is a good ‘fit’ between the practice of sentencing enhancements in the guidelines and the views of the public. For example, do the public favor assigning the same weight to all prior convictions regardless of how old they are? Or do the public ‘discount’ older prior convictions for the reasons noted here? Later in 2016, findings from the research will be published on the Robina website. There’s more to come, as Johnny used to say!