CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Monday, May 15, 2017

Kourakis on Recidivists and Retributivists

Filippos Kourakis has posted To What Extent is a Recidivist Sentencing Premium (Harsher Sentences for Repeat Offenders) Consistent with a Retributive Approach to Sentencing? on SSRN. Here is the abstract:

It is a shared practice among various and diverse penal systems around the world to punish recidivists more harshly than first-time offenders. Despite the breadth of this practice, philosophically justifying this extra punishment has been constituting a rather demanding intellectual task, especially for retributive scholars. According to the archetypical retributive scheme of punishment, the latter is justified "because and only because offenders deserve it" (Moore, 2009: 31). This is the heart of the problem for the retributivist: Can retributivism account for the increased punishment of recidivists, even if they engage in precisely the same criminal act with a first-time offender?

Purporting to spark the dialogue towards responding to this question, this essay scrutinises four retributive accounts of the recidivist premium, namely "Punishing Bad Character" theory, "Punishing Disobedience" theory, "Recidivism as Omission" theory, and finally, the "Notice" theory. All of the theories which are analysed seek to ground harsher punishment for recidivists by addressing the way in which culpability can be enhanced due to the offender’s prior convictions. Acknowledging each account's conceptual limitations, this essay concludes that the most plausible retributive account for the foundation of the recidivist premium is served by the Notice theory, according to which the repeat offender is more culpable due to his/her premeditation to reoffend, albeit having experienced firsthand formal criminal punishment and thus supposedly having gotten to appreciate the implications of his/her wrongdoing.

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