Recidivism as omission: A relational account

Texas Law Review

Volumn 87, Issue 3, 2009, Pages 571-622

  Lee, Youngjae ^a  

^a FORDHAM UNIVERSITY   (United States)

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EID: 64149087626     PISSN: 00404411     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (286)

1. This Article uses the terms "repeat offender," "recidivist," "offender with prior record," and "offender with criminal history" interchangeably and as a way of describing only those who reoffend after being convicted for previous offenses. While this is the most common understanding of the terms, it is not the only way to define them. For example, if a person commits multiple crimes but is sentenced separately for them, that person may be sentenced as a "repeat offender" in every sentencing that follows the first one. That is, if an offender is sentenced in the morning for a crime and then sentenced in the afternoon for the second crime, it is possible for the second sentence to be enhanced on the basis that the offender accumulated a "criminal record" that morning. This Article is not about those with "criminal records" in this latter sense, although arguments discussed in this Article have implications for such cases as well. See Markus Dirk Dubber, Recidivist Statutes as Arational Punishment, 43 BUFF. L. REV. 689, 706 (1995);
2. Ronald F. Wright, Three Strikes Legislation and Sentencing Commission Objectives, 20 LAW & POL'Y 429, 443 (1998) (both making a similar distinction).
3. For more on the meanings of "prior" and "history" in the terms "prior record" and "criminal history," see, for example, BUREAU OF JUSTICE ASSISTANCE, DEP'T OF JUSTICE, NATIONAL ASSESSMENT OF STRUCTURED SENTENCING 71 (1996);
4. cf. Nils Jareborg, Why Bulk Discounts in Multiple Offence Sentencing?, in FUNDAMENTALS OF SENTENCING THEORY 129, 129 (Andrew Ashworth & Martin Wasik eds., 1988) (distinguishing between "recidivists" and "multiple offenders").
5. See Julian V. Roberts, The Role of Criminal Record in the Sentencing Process, 22 CRIME & JUST. 303, 341-51 (1997) (demonstrating the significant role of criminal history in determining sentence lengths in several jurisdictions);
6. see also BUREAU OF JUSTICE ASSISTANCE, supra note 1, at 67 ("[A]ll guideline systems include considerations of criminal history . . . .");
7. Richard S. Frase, Sentencing Guidelines Are "Alive and Well" in the United States, in SENTENCING REFORM IN OVERCROWDED TIMES: A COMPARATIVE PERSPECTIVE 12, 16 (Michael Tonry & Kathleen Hatlestad eds., 1997) ("All guidelines states base their recommended sentences primarily on the conviction offense and the offender's prior conviction record.").
8. For general discussions of recidivist statutes, see, for example, 39 AM. JUR. 2D Habitual Criminals §§ 1-55 (2008);
9. ARTHUR W. CAMPBELL, LAW OF SENTENCING § 7.5 (3d ed. 2004);
10. JOHN CLARK ET AL., NAT'L INST, OF JUSTICE, DEP'T OF JUSTICE, "THREE STRIKES AND YOU'RE OUT": a REVIEW OF STATE LEGISLATION 1-4 (1997);
11. 5 WAYNE R. LAFAVE ET AL., CRIMINAL PROCEDURE § 26.6(b) (2d ed. 1999).
12. Sentencing enhancements for criminal records have a long history. See, e.g., CLARK ET AL., supra, at 9-12;
13. Alexis M. Durham, Justice in Sentencing: The Role of Prior Record of Criminal Involvement, 78 J. CRIM. L. & CRIMINOLOGY 614, 616-18 (1987);
14. Michael G. Turner et al., "Three Strikes and You're Out" Legislation: A National Assessment, 59 FED. PROBATION 16, 17 (1995).
15. E.g., Dan Lungren, Three Cheers for Three Strikes, POL'Y REV., Nov.-Dec. 1996, at 34, 37. But see David A. Dana, Rethinking the Puzzle of Escalating Penalties for Repeat Offenders, 110 YALE L.J. 733, 737 (2001) ("Because previous violators face higher probabilities of detection, conventional economic theory dictates lower penalties for previous offenders than for those with clean records.").
16. E.g., John J. Dilulio, Jr., Instant Replay: Three Strikes Was the Right Call, AM. PROSPECT, Summer 1994, at 12, 12.
17. Williams v. New York, 337 U.S. 241, 247-50 (1949);
18. see also JULIAN V. ROBERTS, PUNISHING PERSISTENT OFFENDERS: EXPLORING COMMUNITY AND OFFENDER PERSPECTIVES 35-36 (2008) (noting that a consideration of the recidivism of offenders is crucial to measuring the effectiveness of sentencing rules aimed at rehabilitation).
19. In practice, there are many unanswered empirical questions about how to arrive at an optimal level of prevention that does not amount to a waste of resources. For some discussions of relevant empirical questions, see ROBERTS, supra note 5, at 30-35;
20. FRANKLIN E. ZIMRING ET AL., PUNISHMENT AND DEMOCRACY: THREE STRIKES AND YOU'RE OUT IN CALIFORNIA 85-105 (2001);
21. and James Austin et al., The Impact of 'Three Strikes and You're Out,' 1 PUNISHMENT & SOC'Y 131, 155-58(1999).
22. U.S. SENTENCING COMM'N, U.S. SENTENCING GUIDELINES MANUAL § 4A, introductory cmt. (2008) (emphasis added);
23. see also BUREAU OF JUSTICE ASSISTANCE, supra note 1, at 67 ("One reason to consider prior record in sentencing is to ensure awareness of an offender's increased culpability.").
24. CAL PENAL CODE ANN. § 667(b)-(i) (West Supp. 2006).
25. See, e.g., Stephanie Simon, Three Strikes Advocates Passionately Defend Law, L.A. TIMES, July 3, 1996, at A16 (quoting a murder victim's mother as saying, "When TV gives us this 21/2-minute sound bite about the poor soul who stole a piece of pizza, they ask if he deserves to spend 25 years to life in prison. Well, the truth of the matter is, he probably does").
26. ROBERTS, supra note 5, at 172-74;
27. Julian V. Roberts, Public Opinion, Criminal Record, and the Sentencing Process, 39 AM. BEHAV. SCI. 488, 491 (1996).
28. GEORGE FLETCHER, RETHINKING CRIMINAL LAW 462-66 (1978);
29. RICHARD SINGER, JUST DESERTS: SENTENCING BASED ON EQUALITY AND DESERT 67-74 (1979);
30. see also BUREAU OF JUSTICE ASSISTANCE, supra note 1, at 67 ("Those who espouse a just desert or retributive philosophy argue that prior record should play a very limited role or no role in sentencing.");
31. Aaron J. Rappaport, Rationalizing the Commission: The Philosophical Premises of the U.S. Sentencing Guidelines, 52 EMORY L.J. 557, 595 (2003) ("Just desert theorists have far greater difficulty in explaining why criminal history is a relevant sentencing factor [than utilitarian theorists].").
32. I count myself among such critics. See Youngjae Lee, The Constitutional Right Against Excessive Punishment, 91 VA. L. REV. 677, 735-36 (2005) (arguing that California's three-strikes law produces penalties that violate the retributivist constraint);
33. see also ZIMRING ET AL., supra note 6, at 121, 120-21 (noting that the penalties under the California three-strikes law are "nonproportional or indeed antiproportional');
34. Dubber, supra note 1, at 705, 705-07 ("Repeat offender laws . . . penalize an offender's insufficient obsequiousness and . . . they have nothing to do with the offender's present moral desert as they punish her not for the present act, but for another act already punished.");
35. Paul H. Robinson, Punishing Dangerousness: Cloaking Preventive Detention as Criminal Justice, 114 HARV. L. REV. 1429, 1435-37 (2001) (arguing that much of the time spent in prison by repeat offenders, after an initial period of earned retribution, is "a purely preventive detention that cannot be justified as deserved punishment");
36. Michael Vitiello, Three Strikes: Can We Return to Rationality?, 87 J. CRIM. L. & CRIMINOLOGY 395, 425-32 (1997) (noting that under many habitual-offender statutes "long sentences are imposed without regard to the culpability of the offender or degree of social harm caused by the offender's behavior").
37. See SINGER, supra note 11, at 68, 67-74 ("[T]he harm imposed by the offense is the same in each instance; the injury inflicted both on the individual victim and, perhaps less clearly, on society appears to be the same.");
38. see also Mirko Bagaric, Double Punishment and Punishing Character: The Unfairness of Prior Convictions, 19 CRIM. JUST. ETHICS 10, 18, 17-18 (2000) ("[A] consistent retributivist is committed to ignoring prior convictions in determining penalty since they have no bearing on the seriousness of the instant offense.");
39. Dubber, supra note 1, at 705 ("A person who robs another of $20 at gun point is no more blameworthy simply because she had five years earlier been convicted of burglary.");
40. Stephen J. Morse, Blame and Danger: An Essay on Preventive Detention, 76 B.U. L. REV. 113, 146-47 (1996) ("When an offender has served the sentence for a crime, the 'slate is wiped clean.' The next offense of a previous offender is no worse per se, the victim is no more harmed, than if the offense were the offender's first.");
41. Roberts, supra note 2, at 317 ("Popular conceptions of desert theories would appear to rule out the use of criminal history information, as the focus is on the offense of conviction, and not previous criminal conduct.").
42. Bagaric, supra note 13, at 13;
43. Rappaport, supra note 11, at 595;
44. James D. Stuart, Retributive Justice and Prior Offenses, 18 PHIL. F., Fall 1986 at 40, 43 ("On a just deserts or retributive theory, it would seem that it is wrong to punish an offender more severely for a second offense if that person has already paid for the first offense, since that amounts to punishing the person twice for the first offense."). One scholar put it this way: If a judge is punishing the offender for other offenses upon which he has already been sentenced, such legislation would violate double jeopardy. An offender sentenced to a term of imprisonment, in the language of retributivists, must pay his debt to society. His debt is measured by the term of imprisonment. Completion of the term of imprisonment pays that debt. When the offender commits another offense and the earlier conviction becomes a prior strike to increase his term of imprisonment, that increase cannot be additional punishment for the earlier crime. To punish the offender again for the same conduct would violate double jeopardy.
45. Vitiello, supra note 12, at 426 (footnote omitted). The double-jeopardy argument and the proportionality argument can be thought of as the same argument about proportionality in two different forms if we take the view that the prohibition of double jeopardy is a way of enforcing the proportionality limitation. See MICHAEL S. MOORE, ACT AND CRIME: THE PHILOSOPHY OF ACTION AND ITS IMPLICATION FOR CRIMINAL LAW 309, 309-10 (1993) (arguing that prohibitions of multiple punishments for repeat offenders are "motivated by a proportionality worry");
46. see also Nancy J. King, Portioning Punishment: Constitutional Limits on Successive and Excessive Penalties, 144 U. PA. L. REV. 101, 104 (1995) ("[T]he contours of constitutional limits on the amount of punishment that can be inflicted for a particular wrong, traditionally a part of the Eighth Amendment and due process law, are inseparable from the constitutional limitations on the frequency with which an offender can be punished for that wrong, typically rooted in double jeopardy doctrine.").
47. Andrew von Hirsch is frequently mentioned as a desert theorist who supports sentencing enhancements based on offenders' criminal histories. See, e.g., Rappaport, supra note 11, at 596 (noting that von Hirsch advocates the use of a defendant's prior criminal record in assessing culpability);
48. Alice Ristroph, Desert, Democracy, and Sentencing Reform, 96 J. CRIM. L. & CRIMINOLOGY 1293, 1315 n.74 (2006) (identifying von Hirsch as a proponent of the theory that "repetitive criminal behavior makes an offender deserve more punishment").
49. While it is true that he held such a view at one point, see ANDREW VON HIRSCH, DOING JUSTICE: THE CHOICE OF PUNISHMENTS 84-88 (1976) (arguing that a first offender is deserving of less punishment than a person who has committed multiple offenses), his faith in the idea did not last very long, and he has since declared his argument about repeat offenders in Doing Justice to be "mistaken." Andrew von Hirsch, Criminal Record Rides Again, CRIM. JUST. ETHICS, Summer/Fall 1991, at 2, 2 [hereinafter von Hirsch, Criminal Record].
50. He has instead defended the idea of mitigation for first-time offenders - as opposed to aggravation for repeat offenders - for the past few decades. ANDREW VON HIRSCH, PAST OR FUTURE CRIMES 81-91 (1986);
51. von Hirsch, Criminal Record, supra, at 2;
52. Andrew von Hirsch, Desert and Previous Convictions in Sentencing, 65 MINN. L. REV. 591, 592 (1981) [hereinafter von Hirsch, Desert and Previous Convictions].
53. This view, which is also known as "progressive loss of mitigation," has been influential among some desert theorists. Martin Wasik & Andrew von Hirsch, Section 29 Revised: Previous Convictions in Sentencing, 1994 CRIM. L. REV. 409, 410;
54. see also ANDREW ASHWORTH, SENTENCING AND CRIMINAL JUSTICE 188 (4th ed. 2005) (describing "progressive loss of mitigation" as "characteristically adopted by desert theorists");
55. Martin Wasik, Guidance, Guidelines, and Criminal Record, in SENTENCING REFORM: GUIDANCE OR GUIDELINES? 105, 122 (Martin Wasik & Ken Pease eds., 1987) ("The theory of progressive mitigation, which is akin to just deserts, appears to be gaining prominence in English writings . . . .").
56. However, its focus on mitigation, not aggravation, puts it at odds with the common sentiment about repeat offenders' enhanced culpability. This view is examined in more detail below. See infra section II(B)(1).
57. Julian V. Roberts, Punishing Persistence: Explaining the Enduring Appeal of the Recidivist Sentencing Premium, 48 BRIT. J. CRIMINOLOGY 468, 469 (2008);
58. see also Richard S. Frase, State Sentencing Guidelines: Diversity, Consensus, and Unresolved Policy Issues, 105 COLUM. L. REV. 1190, 1212 (2005) (noting that "[p]unishment theory is quite underdeveloped" as to this issue).
59. Ristroph, supra note 15, at 1318.
60. The purported difference between "elite" and "popular" conceptions of desert raises the following question: What should be the significance of ordinary intuitions about desert when one is theorizing about desert? If a popular belief about a question of desert does not match up with conclusions arrived at through theorizing and reflecting about desert, who should revise their views - the people or the theorists? Some may argue that when there is a gap, the people's views control because the question of what offenders deserve should ultimately be decided by "the people," as opposed to answered through some objective derivation from philosophical principles. Others may argue that the question of what people deserve is a matter of objective moral reality, and that the popular opinions should play no role in such determinations. In my view, neither argument is correct. I explore this question in more detail in Youngjae Lee, Desert and the Eighth Amendment, 10 U. PA. J. CONST. L. (forthcoming 2008), available at http://ssrn.com/abstract=1234263.
61. There is an extensive literature on the question of "selective incapacitation" of dangerous offenders, which is separate from the issue of what repeat offenders deserve. For some general discussions, see, for example, ASHWORTH, supra note 15, at 206-17;
62. ANDREW VON HIRSCH, CENSURE AND SANCTIONS 48-53 (1993);
63. ANDREW VON HIRSCH & ANDREW ASHWORTH, PROPORTIONATE SENTENCING: EXPLORING THE PRINCIPLES 50-61 (2005);
64. Morse, supra note 13;
65. Anthony E. Bottoms & Roger Brownsword, Dangerousness and Rights, in DANGEROUSNESS: PROBLEMS OF ASSESSMENT AND PREDICTION 10 (JohnW. Hinton ed., 1983);
66. R.A. Duff, Dangerousness and Citizenship, in FUNDAMENTALS OF SENTENCING THEORY 141 (Andrew Ashworth & Martin Wasik eds., 1998);
67. Richard L. Lippke, No Easy Way Out: Dangerous Offenders and Preventive Detention, 27 LAW & PHIL. 383 (2008);
68. Paul H. Robinson, Hybrid Principles for the Distribution of Criminal Sanctions, 82 NW. U. L. REV. 19, 36-42 (1987).
69. See, e.g., Bagaric, supra note 13, at 15 ("[U]nder a system of punishment governed by law there is no basis for ascribing weight to character. People should be punished only for what they do; not according to the type of people we think they are.");
70. Ekow N. Yankah, Good Guys and Bad Guys: Punishing Character, Equality and the Irrelevance of Moral Character to Criminal Punishment, 25 CARDOZO L. REV. 1019, 1033 (2004) (arguing that habitual-offender statutes like California's three-strikes law imagine criminals to have bad characters and create a "class system based on permanent moral inferiority" making "the criminal a permanent lesser citizen").
71. Yankah, supra note 19, at 1029.
72. Wendy Thomas Russell, Those Who Struck Out: Most Third-Strikes Are Non-violent, Local Sentencings Show, but Most of Those Sentenced Had Violence in Their Past, LONG BEACH PRESS, Oct. 31, 2000, at A6 ("You're not sending them away for petty theft with a prior. You're sending them away for their felony history." (quoting Long Beach Deputy District Attorney Christopher Frisco));
73. see also Andy Furillo, Most Offenders Have Long Criminal Histories, SACRAMENTO BEE, Mar. 31, 1996, at Al ("Any discussion of 'three strikes' has to include discussion of the person's priors. These people are being punished for being recidivists, not just the current offense." (quoting Santa Clara County District Attorney Kathy Storton)).
74. GEORGE SHER, IN PRAISE OF BLAME 7 (2006);
75. see also BERNARD WILLIAMS, Nietzsche's Minimalist Moral Psychology, in MAKING SENSE OF HUMANITY AND OTHER PHILOSOPHICAL PAPERS 65, 72 (1995) ("Blame needs an occasion - an action - and a target-the person who did the action and who goes on from the action to meet the blame.").
76. JOEL FEINBERG, Justice and Personal Desert, in DOING AND DESERVING: ESSAYS IN THE THEORY OF RESPONSIBILITY 55, 61 (1970).
77. SHER, supra note 22, at 7 (stating that blame has the structure of a reaction "to a person on the basis of the wrongness of what he has done," as opposed to a reaction "to the wrongness of what a person has done");
78. VICTOR TADROS, CRIMINAL R ESPONSIBILITY 48 (2005) ("In holding an agent responsible for an action, we imply that the action reflects on the agent in some way.");
79. John Gardner, On the General Part of the Criminal Law, in PHILOSOPHY AND THE CRIMINAL LAW: PRINCIPLE AND CRITIQUE 205, 236, 236-37 (Antony Duff ed., 1998) ("The criminal law gets personal. To be convicted of a crime is to be criticized, or even sometimes condemned, as a person.").
80. NICOLA LACEY, SXTATE PUNISHMENT: POLITICAL PRINCIPLES AND COMMUNITY VALUES 71 (1988).
81. She puts things slightly differently at times when she says, for instance, that "actions for which we hold a person fully responsible are those in which her usual character is centrally expressed," id. at 66,
82. or that "it is unfair to hold people responsible for actions which are out of character." Id. at 68.
83. I am not as comfortable with these formulations as I am with the vaguer, and hence more noncommittal, notion of one's "own" actions, because the terms "usual" and "out of character" invite some theoretical troubles. See, e.g., JEREMY HORDER, EXCUSING CRIME 120 (2007) (noting the potential for character theory to generate a case for excusing defendants in some intuitively implausible cases, such as when a defendant of otherwise honest or good character succumbs to great temptation);
84. R.A. Duff, Choice, Character, and Criminal Liability, 12 LAW & PHIL. 345, 374-78 (1993) (suggesting different ways one might interpret the idea of an act's being "out of character" for the relevant actor and demonstrating various problems that idea encounters);
85. Jeremy Horder, Criminal Culpability: The Possibility of a General Theory, 12 LAW & PHIL. 193, 207 (1993) [hereinafter Horder, Criminal Culpability] ("[I]t might be taken to imply that even the most grave harm, intentionally inflicted, is not to be regarded as culpable if it was uncharacteristic of the agent to be moved to cause harm in this way. This would be a bad descriptive and normative error.");
86. Michael S. Moore, Choice, Character, and Excuse, 7 SOC. PHIL. & POL'Y 29, 51-54 (1990) (arguing that those who freely choose to do wrong are culpable no matter how "out of character" the wrongful act may have been for the actor);
87. Peter Westen, An Attitudinal Theory of Excuse, 25 LAW & PHIL. 289, 333, 332-33 (2006) ("[T]he fact that wrongful conduct is an exceptional lapse of otherwise good character provides no basis in law for exculpating an actor altogether.").
88. For an argument that a character theory need not be committed to the view that a person is not responsible for "out of character" actions, see TADROS, supra note 24, at 49-53.
89. Duff, supra note 25, at 378, 369-78 ("[T]he element of truth in the 'character' theory [is] that the action for which a person is convicted and punished must be 'hers,' in that they must be appropriately related to attitudes or motives that are necessarily aspects of her continuing identity as a person.").
90. ROBERT NOZICK, PHILOSOPHICAL EXPLANATIONS 382-84 (1981);
91. Michael D. Bayles, Character, Purpose, and Criminal Responsibility, 1 LAW & PHIL. 5, 7 (1982);
92. Richard B. Brandt, Blameworthiness and Obligation, in ESSAYS IN MORAL PHILOSOPHY 3, 9-13 (A.I. Melden ed., 1958);
93. see also DAVID HUME, A TREATISE OF HUMAN NATURE 264 (2005) (1730-40) ("Actions are by their very nature temporary and perishing; and where they proceed not from some cause in the characters and disposition of the person, who perform'd them, they infix not themselves upon him, and can neither redound to his honour, if good, nor infamy, if evil.").
94. TADROS, supra note 24, at 53 (explaining that, according to the character theory of criminal responsibility, "[a] defendant is responsible for her action only insofar as that action is reflective of the character of the agent").
95. MODEL PENAL CODE § 2.09(1) (Proposed Official Draft 1962).
96. Duff, supra note 25, at 358 (suggesting that the "reasonable person" be understood as "someone with a reasonable or proper regard for the law and the values it protects, and having a reasonable or proper degree of courage").
97. Duff, supra note 25, at 359 ("To say . . . that a 'reasonable person' would have given in is to say that (even) someone with a proper regard for the law and its values, and with a proper degree of courage, would have given in: in which case this person's giving in did not display a lack or failing for which she can properly be condemned.").
98. For a more detailed and nuanced discussion of different situations in which the duress defense is available, see R.A. Duff, Rule-Violations and Wrongdoing, in CRIMINAL LAW THEORY: DOCTRINES OF THE GENERAL PART 47, 63-68 (Stephen Schute & A.P. Simester eds., 2002).
99. Duff, supra note 25, at 358-59.
100. It is also possible that what the reasonable-person test does in a particular context is serve as an evidentiary device - for example, to determine whether the report of fear of one's life is credible or is a mere exculpating story developed after the commission of the crime in order to avoid conviction. R. A. Duff, Virtue, Vice, and Criminal Liability: Do We Want an Aristotelian Criminal Law?, 6 BUFF. CRIM. L. REV. 147, 175 (2002) [hereinafter Duff, Virtue].
101. For examples of literature covering these issues, see generally FLETCHER, supra note 11, at 799-802;
102. H.L.A. HART, PUNISHMENT AND RESPONSIBILITY: ESSAYS IN THE PHILOSOPHY OF LAW 152 (1968);
103. HORDER, EXCUSING C RIME, supra note 25, at 99-133;
104. LACEY, supra note 25, at 58-78;
105. NOZICK, supra note 27, at 382-84;
106. TADROS, supra note 24, at 21-130;
107. Peter Arenella, Character, hoice and Moral Agency: The Relevance of Character to Our Moral Culpability Judgments, 7 SOC. PHIL. & POL'Y 59 (1990); Bayles, supra note 27, at 7;
108. Duff, supra note 25;
109. Duff, Virtue, supra note 32;
110. Claire Finkelstein, Excuses and Dispositions in Criminal Law, 6 BUFF. CRIM. L. REV. 317 (2002);
111. John Gardner, The Gist of Excuses, 1 BUFF. CRIM. L. REV. 575 (1998);
112. Horder, Criminal Culpability, supra note 25, at 195;
113. Kyron Huigens, On Aristotelian Criminal Law: A Reply to Duff, 18 NOTRE DAME J.L. ETHICS & PUB. POL'Y 465 (2004);
114. Moore, supra note 25;
115. Samuel H. Pillsbury, The Meaning of Deserved Punishment: An Essay on Choice, Character, and Responsibility, 67 IND. L.J. 719 (1992);
116. Edmund L. Pincoffs, Legal Responsibility and Moral Character, 19 WAYNE L. REV. 905 (1973);
117. Benjamin B. Sendor, The Relevance of Conduct and Character to Guilt and Punishment, 10 NOTRE DAME J.L. ETHICS & PUB. POL'Y 99 (1996);
118. Westen, supra note 25;
119. see also SHER, supra note 22, at 17-70.
120. Duff, Virtue, supra note 32, at 155.
121. It does not collapse completely. See Duff, Virtue, supra note 32, at 157-58 (explaining that punishing action to the extent that it shows bad character and punishing character to the extent that it is manifested in action may appear to be merely two different ways of stating the same idea, but that there is a difference between the two). But that makes little difference for the topic of this Article.
122. E.g., von Hirsch, Criminal Record, supra note 15, at 2;
123. see also VON HIRSCH, PAST OR FUTURE CRIMES, supra note 15, at 79;
124. von Hirsch, Desert and Previous Convictions, supra note 15, at 592;
125. Andrew von Hirsch, Record-Enhanced Sentencing in England and Wales, 4 PUNISHMENT & SOC'Y 443, 445 (2002) [hereinafter von Hirsch, Record-Enhanced Sentencing].
126. See von Hirsch, Criminal Record, supra note 15, at 55 ("The idea is that even an ordinarily well-behaved person can have his or her moral inhibitions fail in a moment of weakness or willfulness. Such a momentary loss of self-control is the kind of human frailty for which some understanding ought to be shown.").
127. Id.
128. Id. ("The repeated offense can less and less plausibly be described as a lapse; it is no longer a case of momentary failure of moral inhibition.").
129. See, e.g., Bob Egelko, Verdict on '3 Strikes' Law Mixed After First 10 Years, S.F. CHRON., Mar. 8, 2004, at Bl ("Criminals with two strikes already have had a chance to go straight, [sponsors] argue, and forfeit their right to live outside prison if they can't or won't obey society's rules.").
130. See, e.g., Warren Quinn, The Right to Threaten and the Right to Punish, 14 PHIL. & PUB. AFF. 327, 332-34 (1985) (offering some criticisms of the idea that state punishment is justified by offenders' forfeiture of their rights to liberty).
131. For related criticisms of the character theory of culpability, see, for example, Alan Brudner, A Theory of Necessity, 7 OXFORD J.L. STUD. 339, 346 (1987).
132. Brudner writes: "Inasmuch a wicked character may be manifest in ways other than through the perpetration of criminal acts, [the character theory of culpability] renders problematic the act requirement of criminal law." Id; see Horder, Criminal Culpability, supra note 25, at 206 ("In a liberal society there could be no reason to prohibit the formation or display of bad character as such . . . .").
133. See, e.g., Yankah, supra note 19, at 1033.
134. Von Hirsch has made this argument in Doing Justice and later retracted it in Past or Future Crimes. VON HIRSCH, PAST OR FUTURE CRIMES, supra note 15, at 78-79.
135. For a general discussion, see Roberts, supra note 2, at 331-33.
136. One way of avoiding this problem may be to reformulate the notice theory so that, under the theory, what one learns after the first conviction and punishment is not just that, say, stealing is wrong, but also that it is wrong to disobey the law. The heightened awareness, then, would be about the wrongness of disobeying the law, and one might say that repeat offenders are more culpable than first-time offenders because of such heightened awareness. This revised version would avoid the implication that those who rob the first time and rape the second time should not be subject to the premium. This version, however, is vulnerable to other objections to the notice argument, which I discuss below.
137. WAYNE R. LAFAVE, CRIMINAL LAW § 5.6 (4th ed. 2000).
138. See Law No. 90-615 of July 13, 1990, Journal Officiel de la République Française [J.O.] [Official Gazette of France], July 14, 1990, p. 8333 (criminalizing racist, anti-Semitic, and xenophobic acts).
139. See, e.g., Douglas Husak & Andrew von Hirsch, Culpability and Mistake of Law, in ACTION AND VALUE IN CRIMINAL LAW 157, 166-71 (Stephen Shute et al. eds., 1996) (distinguishing between reasonable and unreasonable ignorance of law, and arguing that mitigation and exculpation should be more available for the former);
140. see also Meir Dan-Cohen, Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law, 97 HARV. L. REV. 625, 647, 646-47 (1984) (listing different factors courts use to decide whether to allow a mistake-of-law defense and concluding that "the law is not reducible to any simple rule" and that it "consists of an entire array of decisional variables that give rise to almost endless permutations").
141. Dan-Cohen, supra note 49, at 646.
142. This is not to say mat it would be a bad idea to use the obvious-nonobvious distinction as a way of sorting through when ignorance of law might be an excuse or a mitigating factor. It may in fact be desirable to have the mistake-of-law defense reconfigured along such lines. See Husak & von Hirsch, supra note 49, at 166-71 (distinguishing between reasonable and unreasonable mistakes of law). My point here is merely that it would be odd to have the recidivist premium apply according to the logic of the obvious-nonobvious distinction.
143. VON HIRSCH, PAST OR FUTURE CRIMES, supra note 15, at 79.
144. See STUART P. GREEN, LYING, CHEATING, AND STEALING: A MORAL THEORY OF WHITE-COLLAR CRIME 126 (2006) (finding "plausib[le] the view that what distinguishes the first-time and habitual offenders' acts is the amount of disobedience involved").
145. See R.A. DUFF, PUNISHMENT, COMMUNICATION, AND COMMUNITY 168 (2001). Duff provides: Another possibility might be to argue that the repeat offender's current offense is more serious and thus deserving of harsher punishment because, in addition to the wrong intrinsic to the particular offense, he now displays a culpable lack of respect for the law. Not only has he again infringed his victim's rights: he has closed his ears to the authoritative voice of the law as it spoke to him through his previous punishments. Id.
146. See VON HIRSCH, PAST OR FUTURE CRIMES, supra note 15, at 80, 79-80 ("A defiance theory. . . makes the treatment of recidivists depend on a particular (and rather authoritarian) political doctrine that treats insubordination to state power as a wrong aside from any. . . injury resulting from the criminal act itself.").
147. See Markus Dirk Dubber,Policing Possession: The War on Crime and the End of Criminal Law, 91 J. CRIM. L. & CRIMINOLOGY 829, 962 (2001) (suggesting that a recidivist's repeat offense "reflects multiple acts of disobedience against the state and a disregard for its superior power").
148. See Robinson, supra note 12, at 1436, 1436-37 ("By committing an offense after a previous conviction, an offender might be seen as 'thumbing his nose' at the justice system.").
149. DUFF, supra note 54, at 168.
150. Von Hirsch, Record-Enhanced Sentencing, supra note 36, at 447;
151. see also VON HIRSCH, PAST OR FUTURE CRIMES, supra note 15, at 79, 79-80 (arguing that the "idea of defiance as something reprehensible in itself is incongruent with liberal social values);
152. VON HIRSCH & ASHWORTH, supra note 18, at 149 ("Treating defiance in itself as an extra harm presupposes authoritarian assumptions about the state and the criminal law.").
153. George P. Fletcher, The Recidivist Premium, 1 CRIM. JUST. ETHICS 54, 57 (1982).
154. SINGER, supra note 11, at 68.
155. Fletcher, supra note 60, at 57.
156. FLETCHER, supra note 11, at 465, 464-66 (contrasting the case of a defiant teenager who undermines parental authority with a liberal society where authorities are not entitled to react to a "persistent" criminal as though their personal authorities were challenged).
157. For examples, see infra note 68.
158. This example assumes that individuals can disobey a law that does not apply to them. Is this a coherent possibility? I think so, although I cannot give a full justification for this view here. If it were not a coherent possibility, an atheist would have a difficult time explaining what it is that religious people are doing when they say they are "obeying God." Obedience or disobedience to a nonexistent entity, in other words, is a conceptual possibility. Some may think these are cases of attempted obedience or attempted disobedience and not cases of obedience or disobedience of inapplicable directives. Which formulation is correct is not important for the purposes of the distinction I am highlighting - the distinction between disobedience and lawbreaking.
159. See Douglas Husak, Does Criminal Liability Require an Act?, in PHILOSOPHY AND THE CRIMINAL LAW: PRINCIPLE AND CRITIQUE 60,87 (Antony Duff ed, 1998) (discussing mental acts);
160. cf. Jean Hampton, Mens Rea, 7 SOC. PHIL. & POL'Y, Spring 1990, at 1, 9 (1990) (discussing the "mental act" of defiance).
161. See Husak, supra note 66, at 86 (stating that punishment for thoughts is a category of criminality clearly precluded by the act requirement).
162. E.g., LESLIE GREEN, THE AUTHORITY OF THE STATE 232-34 (1988);
163. JOSEPH RAZ, THE AUTHORITY OF LAW. ESSAYS ON LAW AND MORALITY 233-49 (1979) [hereinafter RAZ, THE AUTHORITY OF LAW];
164. JOSEPH RAZ, The Obligation to Obey: Revision and Tradition, in ETHICS IN THE PUBLIC DOMAIN: ESSAYS IN THE MORALITY OF LAW AND POLITICS 341, 342 (1994);
165. A. JOHN SIMMONS, MORAL PRINCIPLES AND POLITICAL OBLIGATIONS 191-201 (1979).
166. RAZ, THE AUTHORITY OF LAW, supra note 68, at 234;
167. see also William A. Edmundson, State of the Art: The Duty to Obey the Law, 10 LEGAL THEORY 215, 215-16 (2004) (explaining that the duty to obey the law as debated in the philosophical literature is a duty that is "comprehensively applicable" and "universally borne").
168. See, e.g., RONALD DWORKIN, Civil Disobedience and Nuclear Protest, in A MATTER OF PRINCIPLE 104, 105 (1985) ("Americans accept that civil disobedience has a legitimate if informal place in the political culture of their community. . . . People in the center as well as on the left of politics give the most famous occasions of civil disobedience a good press, at least in retrospect.");
169. JOHN RAWLS, A THEORY OF JUSTICE 383 (1971) ("Along with such things as free and regular elections and an independent judiciary empowered to interpret the constitution. . . , civil disobedience used with due restraint and sound judgment helps to maintain and strengthen just institutions.").
170. See, e.g., RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 206-22 (1977);
171. DWORKIN, supra note 70, at 113-14;
172. KENT GREENAWALT, CONFLICTS AND LAW AND MORALITY 271-85 (1989).
173. The problem of how to respond to morally justifiable acts of civil disobedience is a specific instantiation of the general problem of the "asymmetry of authority." For discussions of this problem, see FREDERICK SCHAUER, PLAYING BY THE RULES: A PHILOSOPHICAL EXAMINATION OF RULE-BASED DECISION-MAKING IN LAW AND IN LIFE 128-34 (1991);
174. Larry Alexander, Can Law Survive the Asymmetry of Authority?, 19 QUINNIPIAC L. REV. 463 (2000);
175. Larry Alexander, The Gap, 14 HARV. J.L. & PUB. POL'Y 695 (1991);
176. Heidi M. Hurd, Justifiably Punishing the Justified, 90 MICH. L. REV. 2203 (1992).
177. RAZ, THE AUTHORITY OF LAW, supra note 68, at 269;
178. see also GREENAWALT, supra note 71, at 226-43 (discussing various factors that justify disobedience); RAWLS, supra note 70, at 364, 371-77 (defining civil disobedience as "a public, nonviolent, conscientious yet political act contrary to law usually done with the aim of bringing about a change in the law or policies of the government");
179. H.A. Bedau, Civil Disobedience and Personal Responsibility for Injustice, in CIVIL DISOBEDIENCE IN FOCUS 49, 51 (Hugo Adam Bedau ed., 1991) (describing "paradigm cases" of civil disobedience as acts that are illegal; are committed openly, nonviolently, conscientiously, and within the framework of the rule of law; and are committed "with the intention of frustrating or protesting some law, policy, or decision . . . of the government"). It has further been observed: There is all the difference in the world between the criminal's avoiding the public eye and the civil disobedient's taking the law into his own hands in open defiance. This distinction between an open violation of the law, performed in public, and a clandestine one is so glaringly obvious that it can be neglected only by prejudice or ill will. It is now recognized by all serious writers on the subject and clearly is the primary condition for all attempts that argue for the compatibility of civil disobedience with law and the American institutions of government. HANNAH ARENDT, Civil Disobedience, in CRISES OF THE REPUBLIC 51, 75 (1972);
180. see also DWORKIN, supra note 70, at 105-13 (asserting that for civil disobedience to be acceptable, it must embrace a working theory that rests not on the mere wickedness of a law, but instead on the persuasiveness that disobedience is the appropriate response of those who view a certain law or political decision as immoral or wrong).
181. There may be a genuine question as to whether it is fair to view contempt as a "crime" or whether it is in its own category. For a persuasive discussion that it should be thought of as a crime, see Stuart P. Green, Why It's a Crime to Tear the Tag Off a Mattress: Overcriminalization and the Moral Content of Regulatory Offenses, 46 EMORY L.J. 1533, 1603-06 (1997).
182. For discussions about the distinction between civil and criminal contempt, see Dan B. Dobbs, Contempt of Court: A Survey, 56 CORNELL L. REV. 183, 235-49 (1971);
183. Margit Livingston, Disobedience and Contempt, 75 WASH. L. REV. 345 (2000) (reviewing the history of the distinction).
184. 18 U.S.C.§401(2000).
185. CAL. PENAL CODE ANN. § 166 (West 2000).
186. DEL. CODE ANN. tit. 11, § 1271A (2007).
187. N.Y. PENAL LAW § 240.20 (McKinney 2000).
188. ALASKA STAT. § 11.61.110 (2006).
189. MASS. GEN. LAWS ch. 269, § 2 (2000).
190. OHIO REV. CODE ANN. § 2917.13(A)(3) (West 2000).
191. CAL. PENAL CODE ANN. § 148(a)(1) (West 2000).
192. TEX. PENAL CODE ANN. § 38.02 (Vernon 2003).
193. Id. § 38.10.
194. UTAH CODE ANN. § 76-8-305.5 (2008).
195. See Dubber, supra note 56, at 959, 959-60 (describing laws that "explicitly criminalize acts of disobedience"); Green, supra note 73, at 1608 ("Criminal contempt sanctions punish defendants not for the underlying conduct in which they are engaged but rather for their defiance of a court order.");
196. cf. JOEL FEINBERG, HARM TO OTHERS 19-21 (1987) (distinguishing between "primary" and "derivative" crimes).
197. Cf. Douglas Husak, A Liberal Theory of Excuses, 3 OHIO ST. J. CRIM. L. 287, 291 (2005) (book review) (raising concerns about the idea of denying criminal defenses on consequentialist grounds instead of as a matter of "justice to the individual").
198. WILLIAM a. EDMUNDSON, THREE ANARCHICAL FALLACIES: AN ESSAY ON POLITICAL AUTHORITY 48-70 (1998);
199. Jeremy Waldron, Special Ties and Natural Duties, 22 PHIL. & PUB. AFF. 3, 9-10 (1993).
200. E.g., Lambert v. California, 355 U.S. 225, 228 (1957) ("The rule that 'ignorance of the law will not excuse' is deep in our law. . . . On the other hand,. . . [e]ngrained in our concept of due process is the requirement of notice.").
201. See JOSHUA DRESSLER, UNDERSTANDING CRIMINAL LAW § 13.01 (2d ed. 1995) (explaining that the rationale behind the rule that mistake of law is no defense is to avoid subjectivity and fraud).
202. Many of these examples come from Husak and von Hirsch's article on mistake of law. See generally Husak & von Hirsch, supra note 49.
203. Id. at 161-65.
204. This may not always be the case. It is possible that the age of consent could be facially absurd (say, thirty). Or, for some reason, the state could have lost its credibility over time as to the rationality of its laws generally or of laws having to do with sexual relations. In such cases, it may be the case that the state is not entitled to deference.
205. Cf. R.A. Duff, Crime, Prohibition, and Punishment, 19 J. APPLIED PHIL. 97, 104, 102-04 (2002) (arguing that a person who ignores the legal age of consent displays culpable "civic arrogance").
206. See Douglas Husak, Malum Prohibitum and Retributivism, in DEFINING CRIMES 65, 75 (R.A. Duff& Stuart P. Green eds., 2005).
207. 498 U.S. 192(1991).
208. Cf. DAVID LUBAN, LAWYERS AND JUSTICE 37, 34-41 (1988) (basing the duty to obey the law on the idea that "the wrong of lawbreaking lies in its unfairness to those who obey");
209. John Rawls, Legal Obligation and the Duty of Fair Play, in LAW AND PHILOSOPHY 3, 9-10 (Sidney Hook ed., 1964) (deriving one's obligation to obey laws from the duty of fair play);
210. H.L.A. Hart, Are There Any Natural Rights?, 64 PHIL. REV. 175, 185 (1955) (describing the duty of fair play).
211. SIMMONS, supra note 68, at 192-94.
212. See FLETCHER, supra note 11, at 466 (rejecting the recidivist premium on the ground that defiance of legal authority does not make an offender more culpable in a liberal society based on the rule of law); SINGER, supra note 11, at 68 ("[D]efiance alone cannot, in a moral system, be the predicate of liability or of increased liability.").
213. See supra notes 7-10.
214. See supra Part II.
215. See supra subpart III(A).
216. See supra subpart III(B).
217. 1+n, which has obvious parallels to the way I am thinking about the problem of the recidivist premium here. See, e.g., JON ELSTER, ULYSSES UNBOUND: STUDIES IN RATIONALITY, PRECOMMITMENT, AND CONSTRAINTS 4-87 (2000);
218. RICHARD A. POSNER, AGING AND OLD AGE 84-95 (1995);
219. HOWARD RACHLIN, THE SCIENCE OF SELF-CONTROL 27-56 (2000);
220. RICHARD H. THALER WITH GEORGE LOEWENSTEIN, Intertemporal Choice, in THE WINNER'S CURSE: PARADOXES AND ANOMALIES IN ECONOMIC LIFE 92, 92-106 (1992);
221. David Laibson, Golden Eggs and Hyperbolic Discounting, 112 Q. J. ECON. 443, 443-44 (1997);
222. James Q. Wilson & Allan Abrahamse, Does Crime Pay?, 9 JUST. Q. 359,375 (1992).
223. The starting point of such an inquiry should be the issue of how individuals' environments can constrain and shape their available options. Many have pointed out the importance, when studying criminal behavior, of understanding such interactions between individuals and the environments they inhabit. See, e.g., ROBERT J. SAMPSON & JOHN H. LAUB, CRIME IN THE MAKING: PATHWAYS AND TURNING POINTS THROUGH LIFE 99-122 (1993);
224. Anthony E. Bottoms & Paul Wiles, Environmental Criminology, in THE OXFORD HANDBOOK OF CRIMINOLOGY 620, 634-35 (Mike Maguire et al. eds., 3d ed. 2002);
225. Edward L. Glaeser et al., Crime and Social Interactions, 111 Q.J. ECON. 507, 508 (1996).
226. Stephen Morse has made a similar argument in the context of preventive detention, which he defines as the state practice of "interven[ing] in the life of a citizen, who, at the time of the intervention, has neither done nor attempted to present harm, but who poses a substantial risk of doing so." Morse, supra note 13, at 114.
227. He suggests that we expand the crime of reckless endangerment by criminalizing the "failure to commit oneself voluntarily or to take other reasonably effective steps to avoid causing future harm" by persons who have had "prior conviction[s] of at least one serious crime of violence, or at least one prior occurrence of involuntary civil commitment for actual serious violent conduct" and have "conscious awareness of an extremely high risk that [they] will in the immediate future cause substantial unjustified harm." Id. at 152.
228. Under this proposal, "[t]he crime is complete when the agent recklessly fails to take the steps reasonably necessary to avoid harmdoing." Id.
229. I should also note that Morse has offered the proposal as a "purely heuristic" device and does not favor adopting it for reasons of privacy and administrative difficulties. Id. at 152 n.126.
230. Our proposals have a number of differences - in the aims and contents of the proposals themselves and in the theoretical justifications for them. See, e.g., infra note 117. However, one commonality here is the idea that individuals' failures to prevent themselves from committing crimes can be culpable.
231. See FLETCHER, supra note 11, at 581-85;
232. see also SanfordH. Kadish, Complicity, Cause and Blame: A Study in the Interpretation of Doctrine, 73 CAL. L. REV. 323, 337 (1985) (explaining that complicity liability is derivative in that it is dependent upon a principal violation of the law).
233. FLETCHER, supra note 11, at 583.
234. Id. at 583-84.
235. The ideas of "causation" by omission and "causation" by complicity are controversial, and there is much written about the two subjects. It is beyond the scope of this Article to resolve these issues, but some idea of causal connections between omission and result, and complicity and result, is stable and robust enough for our purposes. On causation by omission, see, for example, FEINBERG, supra note 85, at 165-86;
236. DOUGLAS HUSAK, PHILOSOPHY OF CRIMINAL LAW 156-86 (1987);
237. MOORE, supra note 14, at 267-78;
238. Helen Beebee, Causing and Nothingness, in CAUSATION AND COUNTERFACTUALS 291, 291-308 (John Collins et al. eds., 2004);
239. Sarah McGrath, Causation by Omission: A Dilemma, 123 PHIL. STUD. 125, 125-48 (2005).
240. On causation by complicity, see, for example, CHRISTOPHER KUTZ, COMPLICITY: ETHICS AND LAW FOR A COLLECTIVE AGE 168-71 (2000);
241. John Gardner, Complicity and Causality, 1 CRIM. L. & PHIL. 127, 133-41 (2007);
242. Kadish, supra note 106, at 355-68;
243. Christopher Kutz, Causeless Complicity, 1 CRIM. L. & PHIL. 289, 289-305 (2007);
244. Michael S. Moore, Causing, Aiding, and the Superfluity of Accomplice Liability, 156 U. PA. L. REV. 395, 395-452 (2007).
245. Another related idea here is that of "tracing" in moral philosophy. Tracing refers to "the idea that responsibility for some outcome need not be anchored in the agent or agent's action at the moment immediately prior to outcome, but rather at some suitable time prior to the moment of deliberation or action." Manuel Vargas, The Trouble with Tracing, 29 MIDWEST STUD. PHIL. 269, 269 (2005);
246. see also JOHN MARTIN FISCHER & MARK RAVIZZA, RESPONSIBILITY AND CONTROL: A THEORY OF MORAL RESPONSIBILITY 49-51 (1998) (describing the role of tracing in morality and causation).
247. See generally John Martin Fischer & Neal A. Tognazzini, The Truth About Tracing, NOUS (forthcoming) (manuscript on file with the Texas Law Review) (defending the idea of tracing as a viable component of moral responsibility).
248. I do not mean to imply here that "attempted omission" or "attempted complicity" is absurd or non-existent. The aim here is merely to explain how "recidivism as omission" is to be conceptualized. Cf. Kadish, supra note 106, at 356 (explaining that his explication of complicity as containing a "result" requirement is not meant to preclude the possibility of the concept of attempt to complicity).
249. See, e.g., RESTATEMENT (SECOND) OF CONTRACTS § 1 (1981) (defining a contract as a promise that creates an enforceable legal duty);
250. RESTATEMENT (SECOND) OF TORTS § 314A (1965) (listing several types of special relationships that create a duty to act in tort law).
251. There are obvious parallels here to the idea of "associative obligations," which has been extensively discussed in the literature on the duty to obey the law. See, e.g., RONALD M. DWORKIN, LAW'S EMPIRE 190-216 (1986); Stephen Perry, Associative Obligations and the Obligation to Obey the Law, in EXPLORING LAW'S EMPIRE: THE JURISPRUDENCE OF RONALD DWORKIN 183, 183-206 (Scott Hershovitz ed., 2006).
252. Accounts of associative obligations forming a basis for political obligations are controversial. For criticisms, see Denise Réaume, Is Integrity a Virtue?: Dworkin's Theory of Legal Obligation, 39 U. TORONTO L.J. 380, 380-409 (1989);
253. A. John Simmons, Associative Political Obligations, 106 ETHICS 247, 259-61 (1996). Whether their criticisms apply to the argument I am advancing here turns on the moral justifiability of the institution of punishment and of the relationships that the institution creates.
254. See, e.g., RESTATEMENT (SECOND) OF TORTS §314 (1965) ("The fact that the actor realizes or should realize that action on his part is necessary for another's aid or protection does not of itself impose upon him a duty to take such action.").
255. But see, e.g., id. § 314A (stating that a common carrier and innkeeper have a duty to render aid when they know a passenger or customer is ill or injured);
256. id. § 322 (stating that actors who know that their conduct has placed others in a position where they will suffer further harm are under a duty to render aid);
257. id. § 324 (stating that one who undertakes to aid a person who is ill or injured is liable for any harm resulting from discontinuing that aid).
258. This is one way in which my account differs from rehabilitation theories of punishment. For a quick discussion of the rehabilitation approach to sentencing, see Andrew Ashworth, Sentencing, in THE OXFORD HANDBOOK OF CRIMINOLOGY, supra note 104, at 1076, 1079-80.
259. For a contrasting perspective on this point, in the context of preventive detention, see Morse, supra note 13, at 152.
260. One difficult issue lurking in the background here is whether the legal system should recognize something like a partial or full "social-adversity defense." For discussions of social-adversity defense, see MICHAEL TONRY, MALIGN NEGLECT-RACE, CRIME, AND PUNISHMENT IN AMERICA 134-48, 163-64 (paperback ed. 1996);
261. and VON HIRSCH & ASHWORTH, supra note 18, at 62-74. I cannot resolve the social-adversity-defense debate here; I only note that how that debate is resolved would have obvious implications for when the recidivist premium would be unavailable.
262. Some might wonder here why the burden of proving that there was a failure to reform is not on the government and why the burden of proving that there was an attempt to reform is on the defendant. The reason for this is that the state is, ultimately, too far removed from individuals to know how they ought to reform their lives. The state can listen to individuals' stories as to how they have tried to reform and understand them, but how a particular individual is to avoid a life of crime is not information that the state has access to, given the individual variations and opacity of the internal lives of individuals. There are many ways of living a law-abiding life, and they cannot and should not be specified by the state. A broader point here is that it is inappropriate to have an absolute rule barring presumptions that go against criminal defendants just because we are in the criminal context; a more general articulation of the proper relationship between citizens and the state must come first. For a discussion of some of the general issues involved in determining when legal presumptions are appropriate, see R.A. Duff, Strict Liability, Legal Presumptions, and the Presumption of Innocence, in APPRAISING STRICT LIABILITY 125, 137-43 (A.P. Simester ed., 2005). It is true that through probation and parole conditions and such, the state does keep an eye on how ex-offenders return to a life of normalcy. But that, it seems to me, does not show that the state has any special insight as to how to live a law-abiding life; such post-release conditions are more about the state's maintaining a tight control over each individual - in a way privileging one state-chosen way of staying out of trouble - and less about the state knowing what is good for each individual.
263. For a similar suggestion, see ROBERTS, supra note 5, at 220-22.
264. Gwen Rubinstein & Debbie Mukamal, Welfare and Housing - Denial of Benefits to Drug Offenders, in INVISIBLE PUNISHMENT: THE COLLATERAL CONSEQUENCES OF MASS IMPRISONMENT 37, 40-43 (Marc Mauer & Meda Chesney-Lind eds., 2002) [hereinafter INVISIBLE PUNISHMENT] (discussing the lifetime ban on eligibility for Temporary Assistance to Needy Families (TANF) benefits for individuals with felony drug convictions);
265. Jeremy Travis, Invisible Punishment: An Instrument of Social Exclusion, in INVISIBLE PUNISHMENT, supra, at 15, 23-24 (pointing out that federal statutes authorize the exclusion of certain offenders from public housing);
266. see also Nora V. Demleitner, Preventing Internal Exile: The Need for Restrictions on Collateral Sentencing Consequences, 11 STAN. L. & POL'Y REV. 153, 158 (1999) (noting that federal law bars distribution of certain welfare benefits to those convicted of some crimes).
267. E.g., IND. CODE § 12-14-l-l(c) (2007) (barring felons from receiving assistance under Indiana's Temporary Assistance for Needy Families program for ten years);
268. KAN. STAT. ANN. § 39-709(d)(4) (2007) (prohibiting those found guilty of certain crimes from receiving some forms of state assistance);
269. see also Travis, supra note 119, at 23 (discussing legislation that has cut offenders off from welfare).
270. Travis, supra note 119, at 18;
271. see also Higher Education Act of 1998, 20 U.S.C. § 1091(r)(l) (2004) (limiting the ability of those convicted of drug-related offenses to receive student loans unless they complete a rehabilitation program).
272. Travis, supra note 119, at 22;
273. see also, e.g., ARK. CODE ANN. § 6-17-414(b) (2007) (preventing those convicted of certain crimes from gaining employment as nonlicensed staff in public schools);
274. CAL. EDUC. CODE § 45125.01(d) (West 2006) (establishing a system to make criminal records of school-district employees available to superintendents); CONN. GEN. STAT. § 20-195p (1999) (permitting disciplinary action to be taken against social workers convicted of felonies); BRUCE WESTERN, PUNISHMENT AND INEQUALITY IN AMERICA 112-13 (2006) (noting that a criminal record can result in legal restrictions on employment options).
275. Travis, supra note 119, at 24;
276. see also, e.g., ALA. CODE § 32-5A-195Q) (1999) (requiring the revocation of the driver's license of anyone convicted of certain crimes);
277. ARIZ. REV. STAT. ANN. § 28-3304(A) (2004) (requiring the driver's license of a person convicted of certain offenses to be revoked).
278. JEFF MANZA & CHRISTOPHER UGGEN, LOCKED OUT: FELON DISENFRANCHISEMENT AND AMERICAN DEMOCRACY 137-64(2006).
279. There is a difficult question here that I cannot resolve in this Article, and it is this: How should we think about the government's responsibility in repeat offenders' reoffending, given that the institution of punishment itself - and not just government policies that deal with ex-offenders - has the effect of disrupting people's lives in ways that increase the difficulty of living law-abiding lives? See, e.g., DAVID COLE, NO EQUAL JUSTICE: RACE AND CLASS IN THE AMERICAN CRIMINAL JUSTICE SYSTEM 175, 169-80 (1999) (asserting that "[t]he criminal justice system's exploitation of inequality" not only causes people to doubt the legitimacy of our society's legal systems, but also undermines the social cohesion within our communities that encourages lawabiding behavior);
280. DEVAH PAGER, MARKED: RACE, CRIME, AND FINDING WORK IN AN ERA OF MASS INCARCERATION (2007) (studying the barriers to employment for offenders);
281. WESTERN, supra note 122, at 108-67 (discussing the effects of incarceration on offenders' chances of finding employment and on their family lives).
282. Here we run up against a problem of individual responsibility in adverse conditions, which is analogous to the social-adversity-defense debate mentioned above. See DUFF, supra note 54, at 182-84 (suggesting that the lost sense of obligation to obey the law that results when people feel excluded from or disadvantaged by society helps explain why those people commit crimes). It seems to me that it is an advantage, not a disadvantage, of my theory that these kinds of questions must be constantly asked under my framework.
283. Some implementation questions (a few of which were discussed above briefly) are: Should inferences of offenders' failures to set their lives straight from additional offenses be rebuttable? Should the size of the recidivist premium decrease if repeat offenders can demonstrate the ways in which they have attempted to set their lives straight? How should we think about the government's interference with an ex-offender's rehabilitative efforts as a potential mitigating factor? Should one's criminal record expire after a certain period of time? Should the amount of time elapsed between the current offense and previous offenses make a difference? Should the degree of similarity between one's current offense and past offense make a difference for sentencing purposes? How should we take into account any pattern in reoffending - such as increasing or decreasing seriousness of crimes - on every subsequent conviction? Should juvenile records be included? For a discussion of these and various other issues, see Roberts, supra note 2, at 321-41.
284. For some discussions of this question, see sources cited supra note 18.
285. See, e.g., DUFF, supra note 54, at 75 (describing the criminal trial in a liberal political community as a process through which members of the community confront their violations of the laws, and are held accountable for those violations, while still remaining full members of the community).
286. See Duff, supra note 18, at 156-63 (exploring the possible grounds for permanently excluding an offender from the community).