Double punishment and punishing character: The unfairness of prior convictions

Abstract

I Introduction Much of what is wrong with sentencing law and practice relates to the use that is made of prior convictions.(1) They are the primary cause of disproportionate sentences; in fact, rarely does so much turn on so little. In some jurisdictions they can be the sole difference between a small fine and life imprisonment. The impact can be so great that the price paid for stealing a pizza can be as great as that for rape or child molestation.(2) Prior convictions also perpetuate existing social injustices by leading to harsher penalties for offenders from deprived social backgrounds. Not surprisingly, they are the feature of sentencing practice which offenders resent most.(3) Broadly, there are three approaches that can be used to deal with prior convictions. First, they can simply be ignored.(4) Second, at the other end of the spectrum, they can be used as a basis for imposing progressively more severe sanctions for each new offense. This is called the cumulative principle(5) and was the dominant approach to sentencing recidivists during the second half of the nineteenth century.(6) Third, and in the middle, there is what is termed the progressive loss of mitigation theory, which is the view that a degree of mitigation should be accorded to first time offenders or those with a minor criminal record. This mitigation is used up by offenders who repeatedly come before the courts, thereby resulting in increased penalties for recidivists.(7) However, unlike the case of the cumulative principle, there is a limit, set by the principle of proportionality, to the extent to which recidivists can be punished more harshly. This paper examines the use that ought to be made of prior convictions in sentencing. First, the current legal position is examined. The legal and philosophical arguments regarding the relevance of prior convictions are then evaluated. It is contended that imposing harsher penalties on offenders for what they have done in the past not only violates the proscription against punishing people twice for the one offense, but also amounts to the unacceptable view that people should be punished for their character in distinction from what they have done. A solution is offered regarding the relevance that prior convictions should have--that is, that their significance should be naught. This may at first seem too revisionary, but a closer look at the workings of the criminal justice system reveals that the bulk of prior convictions are already dealt with in this way. Finally, it is argued that ignoring prior convictions will significantly reduce the inherent bias of the current sentencing practice against people from deprived social backgrounds. II The Relevance of Prior Convictions to the Sentencing Process (a) Australia Common Law In Australia, at common law, there is no principle of sentencing that demands increasingly more severe sanctions be administered to persons who persist in their criminality.(8) However, recidivists are treated more harshly because their prior convictions are said to disentitle them from the leniency that is normally accorded to a first offender.(9) In Veen (No 2) the High Court set out three other grounds for imposing harsher penalties on recidivists: The antecedent criminal history is relevant ... to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of the society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. …