Professional Documents
Culture Documents
Desert and Previous Convictions in Sentencing: University of Minnesota Law School
Desert and Previous Convictions in Sentencing: University of Minnesota Law School
Desert and Previous Convictions in Sentencing: University of Minnesota Law School
Scholarship Repository
1981
Recommended Citation
von Hirsch, Andrew, "Desert and Previous Convictions in Sentencing" (1981). Minnesota Law Review. 841.
https://scholarship.law.umn.edu/mlr/841
This Article is brought to you for free and open access by the University of Minnesota Law School. It has been accepted for inclusion in Minnesota Law
Review collection by an authorized administrator of the Scholarship Repository. For more information, please contact lenzx009@umn.edu.
Desert and Previous Convictions
in Sentencing*
I. THE QUESTION
WHY IS PRIOR CRIMINAL RECORD IMPORTANT?
Id. at 465.
7. See, e.g., R. SINGER, JUST DESERTS: SENTENCING BASED ON EQUALITY
AND DESERT 67-74 (1979).
8. Id. at 72.
9. DOING JUSTICE, supra note 2, at 132-40.
10. Id. at 138.
11. Id. at 86, 148-49.
MINNESOTA LAW REVIEW [Vol. 65:591
12. When the state is responding to several crimes for which the defendant
is only now facing sentence, the question arises whether and to what extent
the punishment due for those acts may properly be cumulated. This question
is manifestly distinct from the one I am addressing in this Article. My discus-
sion focuses solely on the case in which the defendant has been punished al-
ready for the prior crime, and the issue becomes how those prior convictions
should bear on the punishment due for the current offense.
13. DOING JUSTICE, supra note 2, at 85.
14. I shall be making the strong claim that first offenders do deserve less
punishment, on the merits. In DOING JusTic-, I also made a weaker, eviden-
tiary claim: that evidence of culpability tends to be less persuasive for first of-
fenders than for the previously convicted. Id. at 85-86. But see G. FLETcHER,
supra note 5, at 463 n.17. As I believe the strong claim to be correct, I shall not
be pursuing the evidentiary claim here.
19811 SENTENCING
19. One philosopher has noted that "[rjecent studies in normative ethics
have concentrated on act evaluations, neglecting, almost ignoring, agent evalua-
tions." Stocker, Act and Agent Evaluations, 27 REV. METAPHYSICS 42 (1973).
See also Strawson, Freedom and Resentment, 48 PRoc. BMrT. AcAD. 187 (1962).
20. Thus, my argument is not based on the claim that the first offender
lacks notice of the wrongfulness of the conduct, although Singer ascribes that
view to me. &1SINGER, supra note 7, at 68.
1981] SENTENCING
21. The latter evaluation is the kind that occurs when we decide that
someone is praiseworthy or blameworthy as a person. We would be looking at
his moral personality in toto, weighing his various good qualities against the
bad.
MINNESOTA LAW REVIEW [Vol. 65:591
tween (1) who is entitled to condemn, and (2) why condemnation may be due.
A special relationship of some kind, such as one of superior-subordinate, part-
nership in a joint enterprise, or personal friendship may in some circumstances
be a prerequisite to being entitled to censure or condemn. (For example, a
friend may censure me for my personal misconduct, but a stranger is being in-
trusive if he tries to do so.) Once one is so entitled, however, the grounds for
censuring are not necessarily based upon threats to that particular relation-
ship. (My friend, for example, may censure me for wrongs other than those
which might affect our own friendship.) See J. KLEimG, supra note 15, at 72-77.
Kleinig's point carries over to punishment: only a duly constituted authority is
entitled to punish me; but the punishment is due for wrongs I commit, not for
disrespect of that authority.
It is, I believe, undesirable for the law to assert any secondary obligation-
whether of obedience, good citizenship, social cooperation, or whatever-as the
basis for punishing people more severely than is deserved by their conduct per
se. Once one admits the existence of such secondary obligations, the state's
permitted penal response could be made to vary with whatever importance one
may wish to assign to that obligation. One could, for example, justify severe
punishment for repeated lesser criminal acts by arguing that, although the acts
are not serious in themselves, their repeated commission infringes a much
more "important" duty of responsible citizenship.
In ordinary life, people are at various times associated in one or another
joint venture. When they are so associated, repeated violations of the terms of
that joint enterprise may be seen, within the confines of that enterprise, as in-
volving some special evil akin to a violation of a collective trust. But that is not
the appropriate model for the criminal law in a free society. Citizens should be
judged for the wrongs they do other citizens, not for supposed breaches of im-
puted secondary obligations. Fletcher is right, I think, in distrusting "organic"
theories of citizen obligation to the state.
In this Article, however, I am arguing that one need not invent any such
secondary obligations in order to justify the scaled-down treatment of first of-
fenders. The offender, whether a first offender or recidivist, commits the same
wrong of causing or threatening a given degree of harm with a given degree of
culpability. The differentiation between the first offender and the recidivist
concerns, as I have suggested, how much disapproval we may wish to visit on
the person for that wrong.
MINNESOTA LAW REVIEW [Vol. 65:591
RESTRICTIVE TAXONOMIES
Before trying to answer the question, we must first clear
away the impediments to asking it. The chief impediment has
been penologists' taxonomies-their descriptions of the compo-
nents of deserved punishment in the criminal law. These tax-
onomies have tended to exclude prior criminality by definition.
Such restrictive definitions do not dispose of the issue, but
26
merely prevent it from being considered on its merits.
An example of such a restrictive taxonomy is George
Fletcher's. Citing the German legal literature, he asserts that a
criminal offender's desert is determined by (1) the degree of
wrongfulness of the defendant's criminal act; and (2) the ex-
tent to which the act's wrongfulness can properly be attributed
to the choice of the actor (i.e., issues of culpability).27 By di-
recting attention exclusively to the current crime, Fletcher
rules out consideration of prior convictions by fiat-and thus
settles nothing. The questions remain whether prior miscon-
duct is relevant to desert-judgments in everyday life, and
whether this feature of ordinary desert-judgments should be
carried over into the criminal law. Those issues must be dealt
with on their merits; and if their answers are affirmative, then
one has to develop a more complex description of criminal de-
sert-judgments.
There are less sophisticated versions of this theory: it
sometimes is said that the idea of desert "looks at the crime,
not the criminal."28 If this phrase is meant to say that desert
theory is not concerned with the offender's propensities for fu-
ture conduct or need for treatment, then it is correct. But if
"the crime" is used to mean only the current crime, and if the
facts about past convictions are seen as bearing only on "the
criminal," then the formulation begs the question. It would be
more accurate to say that desert theory in sentencing is con-
26. H.LA. Hart refers to such attempts to rule out issues by definition as
the "definitional stop." H. HART, Prolegomenon to the Principlesof Punishment,
in PusisHmENT AND RESPONSm=rrY 5 (1968).
27. G. FLETCHER, supra note 5, at 510; see id. at 393-514.
28. See, e.g., Goldstein, supra note 5, at 172.
MINNESOTA LAW REVIEW [Vol. 65:591
arguments, see, e.g., H. PACKER, THE LzMrrs OF THE CUmNuAL SANCTION 249-363
(1968).
36. See, e.g., AmERiCAN FRIENDS SERVICE COMMIITEE, STRUGGLE FOR JUS-
TICE147 (1972).
37. See, e.g., PL SINGER, supra note 7, at 67-74.
1981] SENTENCING
42. It is conceivable, for example, that X could have taken express care not
to violate the law on the previous occasions, and now chose to commit a crime
for the first time. In that event, he could argue that the prior acts (even if mor-
ally unedifying) were acts he was legally permitted to do-and hence the law
has no business considering them in deciding how much he now should be
punished.
MINNESOTA LAW REVIEW [Vol. 65:591
would kill him and feed him to the geese-because the correct answer, accord-
ing to the Duke, was that one leg was longer than the other. J.THURBER, THE 13
CLOcKS 20-21 (1950).
53. Thurber introduces a reference point: the reader is told that the
Duke's legs had once been the same length, but that the right one had out-
grown the left because as a boy he had used it so much "place-kicking pups
and punting kittens." Id. at 20. So the Duke had it right if one knew his his-
tory: the left leg was normal and the kicking leg has grown to abnormal size.
However, the hapless visitor could not know the Duke's history when asked the
fatal question.
MINNESOTA LAW REVIEW [Vol. 65:591
IN
Offense
Score
OUT
Low
Criminal History
Score
Let us see, then, how the criminal history would be scored, and
where the IN-OUT line would be located, on a desert rationale
and on a predictive rationale, respectively.
scored more than one, three would be scored more than two,
and so on ad infinitum. An example is California's rule that,
for offenders committed to prison, each prior conviction result-
ing in imprisonment would result in a specified increase in the
prison sentence. 62 A closed criminal history score is one in
which additional prior convictions would cease to count after a
certain point. The highest (i.e., worst) score would be reached
after a modest number of priors-and the accumulation of a
larger number of previous convictions would not change it. An
example of a closed score is that which the Pennsylvania sen-
tencing commission has adopted in its new proposed sentenc-
ing guidelines. 63 Under Pennsylvania's criminal history score,
the first felony conviction would count one point; the second or
third, two points; and the fourth or higher, three points; but
larger numbers of prior felonies would produce no higher
scores.
Under the principles I sketched in Part IV, a desert-based
sentencing scheme should have a closed criminal history score.
A first offender would be entitled to less blame (and therefore
reduced punishment), because the act was out of keeping with
his past choices. With repetitions of the criminal conduct, this
plea soon loses its force-and the offender comes to deserve
the full measure of condemnation due a crime having the seri-
ousness of his most recent conviction. If, after that, he goes on
to commit and be convicted for further crimes, he would get no
harsher response; there would simply be no penalty-reduction
due.64
An incapacitative rationale, on the other hand could call for
an open-ended score. Each time the sanction fails to prevent
the offender from returning to crime, progressively greater re-
62. CAL. PENAL CODE § 667.5 (West Supp. 1980). Where the current crime
and the prior crimes are not classified as "violent" offenses, however, some
limit is imposed: the sentence cannot exceed twice the normally-recommended
term for persons without prior prison commitments. CAL. PENAL CODE
§ 1170.1(f) (West Supp. 1980). For discussion, see Cassou & Taugher, Determi-
nate Sentencing in California:The New Numbers Game, 9 PAc. LJ. 5,48 (1978).
63. Commonwealth of Pennsylvania Comm'n on Sentencing, Proposed
Sentencing Guidelines, 10 PA. BuL. 4181-96 (Oct. 25, 1980) [hereinafter cited as
Pennsylvania Sentencing Guidelines].
64. See text accompanying notes 55-56 supra. If the offender accumulates
a very large number of convictions, there may be an understandable desire to
begin to respond more severely. But that would have to rest, in my view, on
utilitarian notions (e.g., the notion that harsher measures need to be tried
when lesser ones have failed so often before-see note 65 infra), rather than on
the idea of the offender's deserving more punishment (see also note 24 supra).
On a "modifled desert model," discussed in text accompanying note 80 infra,
there may be a limited degree of room for this kind of response.
MINNESOTA LAW REVIEW [Vol. 65:591
trix, with the stiffest penalties, would be reserved for those hav-
ing a record of serious crimes as well as a serious current
conviction.
On an incapacitative rationale, on the other hand, the qual-
ity of the criminal record may be irrelevant: a record of lesser
offenses may be as good a predictor of recidivism as a record of
more serious crimes. It may, in fact, be a better predictor-
since lesser crimes typically are repetitive and serious crimes
have low recidivism rates. 69 To the extent the lesser crimes are
indeed the superior predictors, offenders with records of such
crimes could draw longer incapacitative sentences. 70 No desert
view could possibly permit harsher treatment of those with less
reprehensible records.
above a certain degree of seriousness.) On the other hand, one might argue
that the mitigated treatment due first offenders should be lost more swiftly,
where the prior crimes are worse. (In that event, the criminal history score
would consider the quality as well as quantity of priors throughout the matrix)
69. There has been little empirical research to date on the predictive util-
ity of more versus less serious prior convictions.
70. Under a predictive rationale, confinement for longer periods could be
justified only if (1) the person is expected to remain a potential recidivist for
that length of time, and (2) the predicted crimes would be frequent enough, or
serious enough, to make the benefits to society of restraining the offender
"worth" the human and financial costs of confinement. If the offender repre-
sents a risk merely of occasional minor crimes, long-term confinement may be
deemed not worth its costs. If, however, the offender is predicted to offend fre-
quently (or if his past crimes are of the kind that are statistically associated
with more serious future criminality) a predictive rationale would call for long-
term confinement-even if the offender's current and previous offenses were
not in themselves serious. For discussion of these issues, see Dershowitz, Inde-
terminate Confinement: Letting the Therapy Fit the Harm, 123 U. PA. I REV.
297 (1974).
71. For further discussion of how to stimulate IN-OUT lines under alterna-
tive rationales, see MImNEsOTA SENTENCiNG GumEuMs, supra note 67, at 8-13;
K. Knapp & D. Parent, supra note 67.
MINNESOTA LAW REVIEW [Vol. 65:591
Offense
Score
OUT
Low
Criminal History
Score
c IN
Offense
Score a b-----------------------b
OUT
Low
Crimina History
3 Score
High d
IN
Offense
Score
OUT
Low
Criminal History e
Score
OUT
Low
CriminaHistory e
Score t
tive sanctions would be ruled out for the very worst offenses of
all. The resultant IN-OUT line will be something like the
dashed-and-dotted line79 shown in Figure VI.
c IN
eSolid line - (c to b) is desert line with
Offense prior criminality considered
Score b Dashed-and-dotted line - (f to g) is
predictive line with peripheral desert
constraints
L~ow
Criminal History
Score
79. The line becomes flat at the top and bottom because the most serious
crimes would be deemed clearly to deserve imprisonment and the least serious
crimes would be deemed clearly undeserving of it. The broad range of the in-
termediate-level crimes would be considered ones where either an IN or an
OUT sentence would be consistent with the watered-down requirements of
commensurability this model uses. For this broad range of offenses, the dispo-
sition would be determined wholly by utilitarian (for present purposes, predic-
tive) grounds. Hence Figure VI has the steep predictive slope in the middle.
628 MINNESOTA LAW REVIEW [Vol. 65:591
High
°°°°O~oo IN
c 00 0o00000
OUT
Low
Criminal History
Score
desert model in drawing its IN-OUT line.8 1 One can debate the
merits of such a hybrid as compared to a "pure" desert
model 8 2-- but it is a far cry from the predictive lines shown in
Figures IV and VI.
sider the criminal's past, and pay little heed to strictures and
qualifications about what aspects of the past may properly be
used?
These concerns, it is important to note, are about sentenc-
ing politics, not desert theory. They do not support the asser-
tion that offenders deserve the same punishment whether the
crime was their first or was preceded by other convictions.
Rather the claim is that---even if first offenders deserve less in
principle-prior criminality might have to be disregarded be-
cause of certain practical dangers.
How great are these dangers of misuse? To answer, we
should look at the experience of jurisdictions that have adopted
more determinate8 3 systems of punishment, and see what the
effects have been of considering prior criminality. Has use of
priors led to escalated punishments? Has it led to inquiry
about offenders' whole past lives? Here is a brief sketch of that
experience, insofar as I am familiar with it.
Traditional, discretionary sentencing systems often have
"habitual offender laws!' that authorize long terms of imprison-
ment-sometimes as much as life-upon the third conviction of
any felony. 84 Systems recently making extensive use of
mandatory minimum sentences, such as New York's, some-
times have mandated substantial terms of imprisonment upon
the second or third conviction of any felony.8 5 Such require-
ments manifestly infringe commensurate-deserts, as the crimes
may be rather trivial (theft of as little as $100 may be defined as
a felony). Such systems, however, do not purport to implement
a desert rationale: they stress rehabilitation or incapacitation
instead, and their habitual-offender provisions are unabashedly
86
incapacitative in aim.
A number of jurisdictions have recently adopted legislative
determinate-penalty systems: the legislature prescribes a code
83. By "determinate" penalty systems, I mean those that (1) adopt explicit
standards that purport to narrow the discretion of those charged with deciding
how much to punish, and (2) adopt procedures that purport to inform impris-
oned offenders early of the probable duration of their stay in prison. This defi-
nition is, intentionally, neutral on which agency sets the standards-on
whether the standard-setter is to be the legislature (as in California), a sen-
tencing commission (as in Minnesota), or the parole board (as in Oregon). See
THE QUESTION OF PAROLE, supra note 32, at 86-87, 91-96.
84. See note 46 supra.
85. New York's mandatory minima for second felony offenses are de-
scribed in ASSOCIATION OF THE BAR OF THE CITY OF NEW YoR, THE NATION'S
TOUGHEST DRUG LAW: EVALUATING THE NEW YORK EXPERIENCE 149-56 (1977).
86. Katkin, Habitual Offender Laws: A Reconsideration, 21 BUFFALO L.
REV. 99, 102-04 (1971).
1981] SENTENCING
87. See, e.g., R. SINGER, supra note 7, at 72; Gerber, Arizona's New Crimi-
nal Code: An Overview and a Critique, 1977 Amz. ST. J. 483, 502-06; von
Hirsch, The New Indiana Sentencing Code: Is it Indeterminate Sentencing?, in
AN ANATOMY OF CRIMINAL JUSTICE 143, 149-52 (C. Foust & D. Webster eds. 1980);
Note, Definite Sentencing in New Mexico: The 1977 Criminal Sentencing Act, 9
N.M. L. REV. 131 (1979).
88. THE QUESTION OF PAROLE, supra note 32, at 83-86; Zimring, Making the
Punishment Fit the Crime, 6 HASTINGS CENTER REP. 13-17 (Dec. 1976).
89. MINN. STAT. § 244.09 (1980); PA. CONS. STAT. ANN. tit. 18, §§ 1381-1386
(Purdon Supp. 1980).
90. The Oregon guidelines are written under a 1977 law that calls upon the
parole board (after receiving the recommendations of a joint advisory commis-
sion, consisting of judges and parole officials) to write explicit guidelines for
the duration of imprisonment before release on parole. The law directs the pa-
role board, in writing those standards, to give primary (although not exclusive)
emphasis to commensurate deserts. The law is Chapter 372 of the 1977 Oregon
session laws; it is described and analyzed in THE QUESTION OF PAROLE, supra
note 32, at 92-96. For the text of the Oregon statute, see id. at 123 app.
The Oregon parole board's guidelines under this statute are set forth in
Chapter 254 of the Oregon Administrative rules, and are summarized in Taylor,
In Search of Equity: The Oregon ParoleMatrix, 43 FED. PROBATION 52 (1979). A
full analysis of the content and impact of the Oregon guidelines will be set
forth in a soon-to-be completed study by Sheldon Messinger, Richard Sparks,
and Andrew von Hirsch, funded by the National Institute of Justice. (Grant
No. 78-NI-AX-0081/82).
The Federal Parole Commission's guidelines are described in D. GorTnD-
SON, L. WINKIS & P. HOFFMAN, supra note 1, at 13-39.
MINNESOTA LAW REVIEW [Vol. 65:591
91. MINNESOTA SENTENCING GUIDELINES, supra note 67, at 35-36, 48, 64. The
cited figures reflect actual durations of confinement, after deduction of good
time.
92. The Minnesota guidelines treat duration of confinement differently
from the IN-OUT decision. The guidelines expressly state that the IN-OUT line
is intended to reflect a modified desert rationale; in drawing that line, the
guidelines give considerably more weight to the seriousness of the current of-
fense than to the criminal record. See note 81 supra and accompanying text.
The guidelines do not explain what is the intended rationale of its rules on du-
ration of confinement; and those rules give about equal weight to the serious-
ness of the current offense and the criminal record. MINESOTA SENTENCING
GUmELnES, supra note 67, at 27-34, 48.
93. See text accompanying note 39 supra.
94. The middle base term in the California sentencing law depends on the
conviction offense; enhancements to the base term depend either on special
features of the current offense (e.g., arming, injury, large property loss) or on
prior imprisonments for felony convictions. The judge is free to invoke the up-
per or lower base term, based on aggravating or mitigating circumstances. The
rules of the California Judicial Council provide a nonexclusive list of aggravat-
ing/mitigating circumstances that for the most part relates to facts about the
current offense or prior convictions. The judge, however, may cite aggravating
1981] SENTENCING
or mitigating factors not listed in the Council's rules, and these could relate to
the defendant's noncriminal past. CAL. PENAL CODE § 1170 (West Supp. 1980);
CAL. R. CT., tit. 2, div. I-A, rules 421, 423; see Cassou & Taugher, supra note 62, at
23-24.
95. MINNESOTA SENTENCING GUIDELINES, supra note 67, at 28-34. The crimi-
nal history score also counts whether the current offense was committed while
the offender was under probation or parole supervision.
96. Id. at 37-40. The guidelines give a nonexclusive list of aggravating and
mitigating factors. All of these relate to the circumstances of the current of-
fense that affect the harm or culpability involved, with two exceptions. One
listed factor concerns prior convictions: whether there was victim injury both
in the current offense and the prior conviction offense. One factor concerns
whether the crime is a major economic offense; and if it is, the judge may con-
sider whether the defendant has been involved in similar past conduct "as evi-
denced by the findings of civil or administrative law proceedings or the
imposition of professional sanctions." Thus of the various listed factors, only
this last-described one concerns prior noncriminal conduct. In addition, a
judge may invoke unlisted aggravating or mitigating factors. Any such factor,
listed or unlisted, may be used, however, to deviate from the guidelines only if
the case involves "substantial and compelling circumstances." The Commis-
sion's aim was to authorize such deviations only in exceptional circumstances.
97. Id. at 37-38.
98. The Minnesota sentencing commission found that facts about the of-
fender's past other than his criminal history were not, statistically, a major in-
fluence in sentencing decisions even before adoption of the guidelines. Id. at 5-
6. The guidelines' restrictions, however, may well limit the influence of these
factors still further.
634 MINNESOTA LAW REVIEW [Vol. 65:591