San Diego Law Review


Mirko Bagaric

Document Type



The seriousness of the offense is the main consideration that should determine the severity of criminal punishment. This cardinal sentencing principle is undermined by the reality that often the criminal history of the offender is the most decisive sentencing consideration. Recidivists are frequently sent to imprisonment for long periods for crimes, which, when committed by first-time offenders, are dealt with by a bond, probation, or a fine. This makes sentencing more about an individual’s profile than the harm caused by the offender and has contributed to a large increase in prison numbers. Intuitively, it feels right to punish repeat offenders more harshly; however, the search for a sound doctrinal or normative reason to justify this approach has proven to be elusive—and there is certainly no demonstrated basis for according considerable weight to prior criminality in the sentencing calculus in relation to all offenses. Moreover, the practice of punishing recidivists more harshly is potentially discriminatory because poor people are more likely to have prior convictions. This Article argues that prior criminality should have far less relevance to sentencing. Previous convictions should only increase penalties in a meaningful sense when they relate to serious sexual or violent offenses. In such circumstances the premium should be in the order of no more than twenty to fifty percent. This reform would lower prison numbers and reduce the discriminatory effect of current sentencing practices, but not impair the efficacy of the sentencing system to achieve any of its key objectives.