Prior Record Enhancements at Sentencing: Unsettled Justifications and Unsettling Consequences

Abstract

The consequences of a person’s prior crimes remain after the debt to society is paid and the sentence is discharged. While the practice of using prior convictions to enhance the severity of sentence imposed is universal, prior record enhancements (PREs) play a particularly important role in US sentencing, and especially in guidelines jurisdictions. In grid-based guidelines, criminal history constitutes one of the two dimensions of the grid. The enhancements are hard to justify. Retributive theories generally reject the use of robust, cumulative record-based enhancements. Research into recidivism suggests that the preventive benefits of PREs have been overstated. The public support the consideration of prior convictions at sentencing, but there is convincing evidence that people are less punitive in their views than are many US guideline schemes. PREs exacerbate racial disparities in prison admissions and populations, result in significant additional prison costs, undermine offense-based proportionality, and disrupt prison resource prioritization.