A previous post in the Robina News and Views Blog, “Attitudes Toward Prior Record Sentencing Enhancements: What Do the Public Think,” raised the issue of public attitudes to criminal history enhancements at sentencing. I noted that although all jurisdictions impose harsher sentences on repeat offenders, literature on sentencing enhancements has so far overlooked the issue of public reaction to this universal sentencing practice. We know little about public opinion on recidivist sentencing premiums – beyond the predictable finding that people are more punitive when the offender is a recidivist. This latest entry article summarizes findings from a Robina-sponsored survey which explored public attitudes to prior record sentencing enhancements. We now have some answers to the questions raised in my previous piece. The research reported here examined public reaction to the question of whether older priors should count less at new sentencing hearings.
The key finding is that the US public appears to be more forgiving of prior convictions than many guideline schemes. Most guidelines count all prior convictions as long as they occurred within a ‘look-back’ ‘window’. In contrast to current practice in the US guidelines, the public significantly discount older priors.
The research addressed two principal research questions:
- When asked to sentence offenders, do members of the public ‘discount’ or under-weight older prior convictions compared to recent priors?
- Is there public support for ‘look-back’ limits which exclude older priors from consideration?
We explored public reaction in three ways: First, by posing some general policy questions about look back limits; second, by providing specific aggravating circumstances (including prior convictions) and asking whether these always, sometimes, or never justified harsher sentencing; third, by providing brief vignettes and posing questions about punishment. We conducted an internet-based public survey with participants recruited through Amazon Mechanical Turk (MTurk). We recruited 1,006 participants who were required to be U.S. residents, to be at least 18-years-old.
1. Age of Prior Offenses: Responses to a General Question
Respondents were asked the following question:
Imagine your state is considering passing a separate new law related to criminal sentencing[…] [J]udges would not be allowed to count an offender’s prior criminal convictions against him if the crimes were committed long ago. Those in favor of the policy argue that society shouldn’t count past crime against a person forever. Those against it stress that even old crimes continue to be relevant for determining punishment for a newly committed offense. Which of the following best describe your position on such a proposal?
- I would be in favor of limiting the offenses used to increase punishment to more recent convictions.
- I would be in favor of allowing all offenses, new and old, to count against an offender.
In response, 65% were in favor of the policy to limit old offenses, while 35% preferred to count all offenses, regardless of the age of the prior conviction. The respondents who were in favor of a limit were then asked how long they thought a prior conviction should remain relevant for the purposes of enhancing subsequent sentences. The potential responses were 5, 10, 15 and 20 years, with an option for ‘other’ and 23% of the sub-sample chose 5 years and a further 53% chose 10 years. Look-back limits vary considerably across the US, but this pattern of responses is more forgiving than most guideline systems. These responses demonstrate clear public support for ‘look-back’ limits on prior crimes.
2. Responses to Specific Crime Scenarios
a. Possession of Stolen Property
Respondents were first provided with the following vignette:
Sam Davis is 45 years old and currently employed as an accountant. He is married and has one teenaged daughter. He has just been convicted of possession of stolen property. He bought some expensive electronic equipment knowing that it was stolen. The usual sentence for a crime of this nature is about 15 months in prison. Sam has no previous convictions of any kind. This is his first criminal conviction. Until now he has not been in any trouble with the law. What effect, if any, should the fact that this his first conviction have on the 15-month sentence? Should it:
- Have no effect on the sentence
- Increase the sentence by ____ months
- Decrease the sentence by ____ months
Once respondents gave an answer to this no-priors scenario, they were told to assume Sam had a one-year-old auto theft conviction and were again asked whether that should have no effect, increase, or decrease the sentence (and if an increase or decrease, by how many months). The question was repeated two more times with the age of the prior auto theft changing to nine years and then fourteen years old. Approximately half the sample would have increased Sam’s sentence for the one-year-old prior, but that percentage fell to 21% and then 13% when the respondents were asked to assume the prior was 9 and 14 years instead. In a nutshell, the public were less punitive as the age of the prior offense increased.
b. Burglary Conviction, Prior Offense Possession of Stolen Property
In the second case the offender had been convicted of burglary, and respondents were informed that 20 months was the usual sentence for this crime. Participants were assigned to one of four groups: A: no prior convictions; B: one-year-old prior conviction for possession of stolen property; C: 9-year-old prior conviction for stolen property and D: 14-year-old conviction for stolen property. Compared to the repeat offender conditions, subjects favoured imposing less punishment when the individual had no priors: the mean sentence length was 16.6 months in condition A, and above 20 months in all other conditions. Responses also confirmed the significance of the age of the prior offense. Once again, respondents were less punitive in the two older prior conviction conditions.
These results confirm public support for prior record enhancements at sentencing, yet also demonstrate sensitivity to distinctions between prior convictions committed at different points in the past. The most significant finding is that in the eyes of the public, older prior convictions carry less weight than more recent priors: the public was less punitive when the prior crime was older. In addition, there was substantial public support for look-back limits on counting prior convictions. Two-thirds of respondents were in favour of a policy that restricted judges from considering old offenses, and of those, three quarters believed the time limit should be set at ten years or less. The policy implication is clear: guidelines which assign the same weight to previous convictions regardless of their age are inconsistent with community values. In many states, all offenses count forever, and even in jurisdictions with a look-back limit, most offenses will continue to count well past ten years (Mitchell, 2015). Validation research involving recidivism rates makes the same point but in the context of utilitarian sentencing: the predictive power of a prior conviction declines steadily over time. The result is that an individual with ten years of crime-free living may be little more likely to re-offend than an individual who has never been convicted.
Attitudes to sentencing prior crimes of different longevities will change depending upon the severity of the prior crimes. Future research should explore other crimes to see where the public are most and least forgiving. For the present however, the findings reported here should make Commissions think carefully about their look back limits, and consider whether older offences should not be discounted or downweighted, compared to more recent prior offenses.
Further details about the survey and the findings can be obtained by contacting the Robina Institute at firstname.lastname@example.org.