Monday, May 25, 2020

Is your client's criminal history a mitigating---rather than an aggravating---sentencing factor?

Criminal history is always a driving force at sentencing. A force towards more and longer incarceration, that is. Why? Are the reasons empirically sound? Is there another way to look at a client's prior record?

In Paying for the Past, Julian V. Roberts and Richard S. Frase critically analyze the justifications for prior-record sentencing enhancements, and conclude that they come up short---especially when measured against the negative consequences of such enhancements.

In The Paradox of Recidivism, Christopher Lewis argues not only that prior-record sentencing enhancements are on empirically shaky ground, but also that there should be a presumptive prior-record sentencing discount, especially given societal barriers to reentry that might explain and excuse recidivism.

Both resources are worth a look. Let's rewire our thinking about criminal history and recidivism.

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