The Recidivist Sentencing Discount - a Defense
Working Paper (Draft Available On Request)
Abstract:Every sentencing regime in the U.S. imposes harsher penalties for offenders with prior convictions than those found guilty of a first offense — a recidivist sentencing premium. This legal principle and social practice is ubiquitous, and human societies have employed it in various ways for millenia. But given our current legal doctrine and social circumstances, the normative and empirical arguments that are taken to justify the recidivist sentencing premium could actually cut in the opposite direction: giving judges and sentencing commissions reason in principle to treat prior convictions as a presumptive mitigating factor — a Recidivist Sentencing Discount.
This article defends this thesis and explores its implications in four parts. First, it provides a taxonomy of ways in which the recidivist sentencing premium could potentially be counterproductive to crime control, depending on the answers to a variety of unresolved empirical questions. A number of potential hypotheses for future research in the social sciences are suggested. Second, it shows that the existing backward-looking rationales for the recidivist sentencing premium —which hold that repeat offenders are more blameworthy for their crimes than first-time offenders, all else equal— are all either circular or unsound. Third, contra these views, it shows that the collateral consequences of past criminal convictions incentivize people to commit more crime in the future, often leaving us with less evidence of blameworthiness when people re-offend, than when people with no criminal record are found guilty of similar crimes for the first time. Finally, this article illustrates the mutual interaction of the jurisprudence, legislation, and underlying policy rationale of collateral consequences, on the one hand; and substantive criminal law theory and the justification of punishment, on the other.
Working Paper (Draft Available On Request)
Abstract:Every sentencing regime in the U.S. imposes harsher penalties for offenders with prior convictions than those found guilty of a first offense — a recidivist sentencing premium. This legal principle and social practice is ubiquitous, and human societies have employed it in various ways for millenia. But given our current legal doctrine and social circumstances, the normative and empirical arguments that are taken to justify the recidivist sentencing premium could actually cut in the opposite direction: giving judges and sentencing commissions reason in principle to treat prior convictions as a presumptive mitigating factor — a Recidivist Sentencing Discount.
This article defends this thesis and explores its implications in four parts. First, it provides a taxonomy of ways in which the recidivist sentencing premium could potentially be counterproductive to crime control, depending on the answers to a variety of unresolved empirical questions. A number of potential hypotheses for future research in the social sciences are suggested. Second, it shows that the existing backward-looking rationales for the recidivist sentencing premium —which hold that repeat offenders are more blameworthy for their crimes than first-time offenders, all else equal— are all either circular or unsound. Third, contra these views, it shows that the collateral consequences of past criminal convictions incentivize people to commit more crime in the future, often leaving us with less evidence of blameworthiness when people re-offend, than when people with no criminal record are found guilty of similar crimes for the first time. Finally, this article illustrates the mutual interaction of the jurisprudence, legislation, and underlying policy rationale of collateral consequences, on the one hand; and substantive criminal law theory and the justification of punishment, on the other.
Latinos and the Principles of Racial Demography
__ Du Bois Review: Social Science Research on Race __ (forthcoming)
Abstract:
U.S. federal agencies should treat Hispanics as a racial group in demographic data collection, rather than an ethnic or pan-ethnic group, as they do currently. Racial demographic data should primarily aim to capture how members of society perceive one another – rather than how they prefer to identify themselves, or their continental ancestry. To capture racial perceptions of Hispanics, government surveys need to balance three subsidiary criteria: the promotion of self-reported racial identifications that are useful as a proxy for the perceptions of others; the ability to measure intra-group differences in how Hispanics are racially perceived; and the extent to which Hispanics are collectively perceived as a race. A survey format that treated Hispanics as a racial group would likely be more amenable to these goals than the current format, but this paper identifies some areas where further empirical research is needed in order to be sure.
__ Du Bois Review: Social Science Research on Race __ (forthcoming)
Abstract:
U.S. federal agencies should treat Hispanics as a racial group in demographic data collection, rather than an ethnic or pan-ethnic group, as they do currently. Racial demographic data should primarily aim to capture how members of society perceive one another – rather than how they prefer to identify themselves, or their continental ancestry. To capture racial perceptions of Hispanics, government surveys need to balance three subsidiary criteria: the promotion of self-reported racial identifications that are useful as a proxy for the perceptions of others; the ability to measure intra-group differences in how Hispanics are racially perceived; and the extent to which Hispanics are collectively perceived as a race. A survey format that treated Hispanics as a racial group would likely be more amenable to these goals than the current format, but this paper identifies some areas where further empirical research is needed in order to be sure.
Inequality, Incentives, Criminality, and Blame
22 Legal Theory 153 (2016)
Abstract:
The disadvantaged have incentives to commit crime, and to develop criminogenic dispositions, that limit the extent to which their co-citizens can blame them for breaking the law. This is true regardless of whether the causes of criminality are mainly “structural” or “cultural.” We need not assume that the society as a whole is unjust in order to accept this conclusion. And doing so would neither stigmatize nor otherwise disrespect the disadvantaged.
22 Legal Theory 153 (2016)
Abstract:
The disadvantaged have incentives to commit crime, and to develop criminogenic dispositions, that limit the extent to which their co-citizens can blame them for breaking the law. This is true regardless of whether the causes of criminality are mainly “structural” or “cultural.” We need not assume that the society as a whole is unjust in order to accept this conclusion. And doing so would neither stigmatize nor otherwise disrespect the disadvantaged.
Oppositional Culture and Educational Opportunity
10 Theory and Research in Education 154 (2012)
Abstract:
The most common lay explanation for the racial gap in educational achievement in the US is the ‘oppositional culture hypothesis’, which holds that Black students tend to undervalue education and stigmatize their high-achieving peers, accusing them of ‘acting White’. Many believe that, insofar as this hypothesis is true, Black underachievement is unproblematic from the perspective of justice, because Black students are simply not taking the fair opportunities presented to them. This article offers a systematic critique of the normative aspects of this view and some conceptual clarifications regarding the nature of opportunity.
10 Theory and Research in Education 154 (2012)
Abstract:
The most common lay explanation for the racial gap in educational achievement in the US is the ‘oppositional culture hypothesis’, which holds that Black students tend to undervalue education and stigmatize their high-achieving peers, accusing them of ‘acting White’. Many believe that, insofar as this hypothesis is true, Black underachievement is unproblematic from the perspective of justice, because Black students are simply not taking the fair opportunities presented to them. This article offers a systematic critique of the normative aspects of this view and some conceptual clarifications regarding the nature of opportunity.