Prior Convictions as Moral Opportunities
Yet although modest threats may be less likely to deter ex-offenders than would-be first-timers, the former also differ from the latter in other ways that may undermine the utility of subjecting them to especially great threats. First, though an ex-offender may have a higher deterrence threshold, he may also have problems rationally assessing his options, exercising self-control, or protecting his future interests when they come into conflict with immediate desires. Hence, he may require stiffer sanctions to be reliably deterred yet also be even less responsive than a person with a clean record to marginal increases in threatened punishment. Second, deterrence depends both on the severity of punishment and its swiftness and certainty.* And it is quite plausible that the apprehension and punishment of the crimes of recidivists tends to be swifter and more certain for various reasons—and to seem that way to ex-offenders who would be recidivists. Recidivists may for that reason already be subject to a “premium” of sorts, which may undermine the case for still further increases in their punishment. Third, if threatened sanctions have declining marginal deterrence value, as is typically assumed, then as the sanctions threatened for recidivists increase above those imposed on first-timers, the losses from declining marginal deterrence will have to be weighed against any gains in efficient deterrence produced by targeting recidivists for greater threats than first-timers.
* Indeed, it has long been the conventional academic wisdom that agents are more responsive to changes in the latter two aspects of punishment than the former. See, e.g., Mark A.R. Kleiman, When Brute Force Fails: How to Have Less Crime and Less Punishment (2009). See also John Pfaff, Locked In: The True Causes of Mass Incarceration—and How to Achieve Real Reform (2017); Marie Gottschalk, Caught: The Prison State and the Lockdown of American Politics (2015). All those authors discuss results of the headline-grabbing program “HOPE” (Hawaii’s Opportunity Probation with Enforcement) which effectively demonstrated the importance of “swift and certain sanctions” by achieving a lower probation revocation rate in a population of probationers subjected to daily drug testing backed by short jail sentences for failures. The results of the experimental program are reported and analyzed in Angela Hawken & Mark Kleiman, Managing Drug Involved Probationers with Swift and Certain Sanctions: Evaluating Hawaii’s HOPE (2009).
