Repeat Offenders: Should Punishment Be Harsher? - Research Paper

Introduction

In the recent past, there have been numerous debates regarding how criminal history of a person should dictate the severity and the harshness of punishments with some people maintaining that there should be similarity in the severity of the sentence for first-time offenders and those who have been convicted before with the same type of offence (D'Alessio & Stolzenberg, 2019). On the other hand, some alternative sources argue that there should be harsher sanctioning of the repeat offenders (Bagaric, 2014). Both arguments have a point to prove. Besides reviewing the previous literature on the severity of punishment for the repeat offenders, this paper shall also outline the rationale for conducting such studies, especially in the current legal set up.

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Literature Review

In the late 1960s and early 1970s, Americans began questioning the ability of the criminal justice system to rehabilitate incarcerated offenders. This was orchestrated by the minimal effects that the rehabilitation programs were having on reducing recidivism in the country (D'Alessio & Stolzenberg, 2019). In support of the claims, further studies noted the inconsistency in the sentencing system and that the state was one of the significant barriers to such sentencing. The public attention shifted to the emerging viewpoint, and thus, this spurred political pressures to initiate sentencing reforms within the United States (Bagaric, 2014).

It intuitively feels right for repeat offenders to be punished more harshly than first-time offenders. However, there is a lack of sound reason that justifies the basis such harsh punishment of the repeat offenders (Kleinfeld, 2016). It is noteworthy that the practice of instituting a harsher sentence on the offenders is potentially discriminatory since the poor people are more likely to have prior criminal convictions (Bagaric, 2014).

The reforms provided for the establishment of a determinate sentencing system across the country. Such a determinate sentencing system aimed at establishing fair sentencing of offenders especially those that were involved in similar types of offence (D'Alessio & Stolzenberg, 2019). According to the reforms, the gravity, seriousness, and history of assault played an essential role in determining the severity of the sanctions and punishments of the offenders. The previous records of similar crime being committed attracted a pragmatic approach of discipline (Bagaric, 2014). However, the eminent controversy in the reforms was regarding the weight that should be placed on the prior criminal history of the offender to determine the magnitude and severity of the punitive sanction.

From the retribution theory, both the first time offender and the repeat offender should be punished similarly since moral and social harm caused by committing a crime is the same without taking into cognizance the prior record of the offense (D'Alessio & Stolzenberg, 2019). This viewpoint argues that it is unjust to amplify the punishment of an offender based on the previous crimes because such past crimes had already been sanctioned (Bagaric, 2014). Furthermore, the blameworthiness and the liability of the defendant for the current crime has not been enhanced following the prior criminal offences.

Besides, this theory also argues that the harm to society and the individual is also not amplified because the criminal committed one or more offences. If the community is supposed to punish the repeat criminal more harshly for the current attack, then social harm that is caused by the crime would cease to be the overriding the purpose of punishment since subsequent repeat offence would be meted with harsher penalty than an identical or worse crime committed for the first time even if the negative social impacts are massive (Bagaric, 2014).

It has also been noted that harsh punishment to the offender is exceptionally costly to society and does just a little to address crime. Empirical studies about the subject have also failed to arrive at a substantive incapacitation effect of the harsh punishment of a repeat offence. Furthermore, there is always higher probability detection of repeat offenders by the authority because most of their details, such as DNA, fingerprints, and background information, are well maintained in the police departments (Kleinfeld, 2016).

Therefore, repeat offenders should not be treated severely since their details are available and could be used as a basis for monitoring their behaviours. Numerous researches indicate that having a criminal record often increases the likelihood of being convicted by the juries than the first time criminals (Bagaric, 2014). Again, the offenders with previous criminal records have raised the possibility of accepting the plea bargain, thus contributing to the practical realization of the standard of proof, which is the threshold needed for criminal convictions.

Most importantly, a criminal offence is best attenuated through increased certainty of punishment rather than severity. Research has also indicated that many repeat offenders are more likely to be confined in prisons without trial than first-time offenders (Bagaric, 2014). Concisely, the punishment of repeat offenders should not always be harsher than the first time offender of a similar crime (D'Alessio & Stolzenberg, 2019).

An alternative view argues that a convicted offender has an increased propensity to commit future crimes than first-time offenders. This is because the offender who has been convicted in the past are much responsible most of the societal crimes that are faced today (Kleinfeld, 2016). The reduction in crime could be achieved by undermining such acts through the implementation of harsher punishments for offenders with a criminal history. This view continues to argue that the small number of criminal cases within the society could be reduced if the few repeat offenders are punished more harshly than first-time offenders (Bagaric, 2014).

Many judges and lawyers argue that repeat criminal deserves additional harsher punishments. However, there is lack of justifications for such a practice, and there is not any settled theory that suggests that repeat criminals should be punished more severely than other criminals without crime history (D'Alessio & Stolzenberg, 2019). Other authors argue that whether a criminal has raped or killed, both crimes are identical whether committed by a career criminal or by the first offender (Bagaric, 2014). For that reason, the orthodox view maintains that prior convictions should never be relevant to the proportionality principle.

In the United States, prior convictions are noted to aggravate current sentences more significantly (Kleinfeld, 2016). There exist permanent offender law in the US that contains the possible and advisory sentencing grid guidelines which make use of the offence history score to determine the appropriate penalty or punishment that should be placed upon the first time and repeat offender (Bagaric, 2014). These legislations were never arrived at from a clear theoretical foundation but rather from collective judgments made out of intuition by several legal professionals.

The Federal sentencing guidelines place much weight on the prior convictions of the offender. In this case, a poor criminal history orchestrates possible and harsh punishments within the United States (D'Alessio & Stolzenberg, 2019). In California, the three striker laws are stringent such that an offender with the previous history of having committed a felony, for example, was expected to spend twenty-five years in prison or face life imprisonment (Bagaric, 2014).

In Australia, a criminal's previous convictions played a significant role in increasing the severity of the current punishment by attracting the operation of several aggravating factors such as retribution and deterrence. In case the previous offence is similar to the current one, then harsher penalties are often instituted in the criminal who is a depiction of the proportionality principle (D'Alessio & Stolzenberg, 2019). The most stringent provisions in Australia relate to the offences associated with sexual aggression and violence, which regarded as a threat to the peace and stability of the community. In such instances, harsh punishments are registered for both the previous offenders and the first time criminals.

There exist several other provisions in Australia that pose less severe but harsh punishments on the criminals with previous offence records. Even though it is noted by the Western Australian sentencing Act 1995 that past offences should not be considered in determining the harshness and severity of penalties, the prior crimes still play significant roles in the determination of the severity of penalties (D'Alessio & Stolzenberg, 2019).

In Southern Australia, mainly South Whales, the legislation for habitual offender provides for the imposition of more substantial and harsher penalties on some repeat crimes (Bagaric, 2014). Several other legislations within Australia provides for prolonged sentences to be imposed on severe offenders with a historical record of misconduct.

However, in Victoria, the sentencing act of 1991 had an express provision for proportionate sentencing such that a penalty is imposed on an offender considering the gravity of the offence regardless of whether the criminal is a repeat or first-time offender (Kleinfeld, 2016). Provisions for serious offenders also exist in other jurisdictions.

The criminality provisions in South Australia are more significant, with criminals having many previous conviction cases being liable for disproportionately severe sentencing than the first time criminals. In this case, it is essential to note that the last history conviction has a significant bearing on the Australian sentencing domain (Bagaric, 2014). This is much exemplified by the Victorian study, which indicated that a criminal with past offence history is six times more likely to be sentenced to imprisonment than the first time offender.

The United Kingdom, on the other hand, has a moderate to a soft stand on penalties imposed on repeat offenders. Such mild positions on offenders could be associated with the witnessed recidivism in the UK (D'Alessio & Stolzenberg, 2019). According to the 2005 report by the United Kingdom Ministry of Justice, almost seventy per cent of the convicted criminals had previous criminal records (Bagaric, 2014). In 2009, the report indicated that a quarter of the offenders had more than fifteen prior convictions.

In the recent past, the repeat offenders were never punished harshly in the United Kingdom, and thus they registered increasing recidivism characterised by derailed societal morals. Upon realizing the changing morals, the UK passed the Criminal Justice Act which provided for the consideration of the previous convictions in determining the severity of the current penalties imposed on the repeat offender. The legislation then gave courts absolute power to prescribe indefinite punishment to repeat offences such as life imprisonment, especially for violent and sexual offenders.

In Sweden, there is little weight given to the prior convictions of offenders. The country has registered a significant reduction in crimes even with the low incarceration levels witnessed. There is limited information on the relationship between the reduced crime level in Sweden and the extent to which the justice system deals with prior convictions (D'Alessio & Stolzenberg, 2019). In Swedish sentencing law, the seriousness of an offence is pegged solely on the possible resultant risk or harm.

The only point where the previous offences may result to increased penalty to an offender in Sweden is when such crime falls within the past four years and...