The Role of Criminal Record in the Sentencing Process

An offender's criminal history plays an important role in sentencing in all jurisdictions. Statutory enhancements for repeat offenders exist in most countries, and there is widespread public support for harsher penalties for recidivists. Advocates of general or specific deterrence support a recidivist premium on the grounds that recidivists are more likely to reoffend and need stronger disincentives. Incapacitationists argue that longer detention is required for offenders with a greater likelihood of reoffending. Most desert-based theorists support a limited sentencing discount for first offenders. State and federal sentencing guideline systems in the United States attach great importance to criminal history information, but there is considerable diversity in the way in which different systems define and limit the use of previous convictions. This essay explores a number of important policy issues relating to the use of criminal history information, including definitions of what should be included in a criminal record, the use of juvenile adjudications, the duration of previous convictions, and the question of whether previous criminal misconduct should ever be completely effaced. As well, a number of alternative ways of conceptualizing criminal history are explored. Throughout this essay, the focus is on the sentencing guideline systems in the United States, although many of these issues also apply to other jurisdictions.