Ensure that sentencing enhancements based on criminal history are focused on individualized assessments of risk
All state and federal criminal justice systems take an individual’s criminal history into account when imposing prison sentences.1 Although the precise role that criminal history enhancements play in determining prison sentences of 10 or more years is not clear from national data, the policy and practice have important implications for the nation’s use of long sentences.
Criminal history can be a more influential factor in determining sentence length than the severity of the committing offense.2 In many jurisdictions, mandatory minimum sentences that target repeat offending require substantial periods of imprisonment, sometimes for relatively low-level offenses.3 Research shows that criminal history enhancements are a substantial driver of the racial disparities that characterize the nation’s prison population, including its use of long sentences.4
Despite the ubiquity of criminal history enhancements, there are no national standards or established best practices that govern their use.5 Instead, the use of such enhancements tends to be determined primarily by how decision-makers interpret the two basic assumptions on which they are based: that people who have already been punished for past crimes deserve more severe penalties for committing new offenses, and that people who have extensive criminal histories have shown a propensity for engaging in criminal behavior and therefore must be incapacitated to prevent future crime.
While empirical research cannot evaluate moral questions about the punishment an individual deserves for committing a crime, there is a large body of empirical literature that has investigated whether past offending is associated with a higher risk of future offending.6 These studies are clear: people with extensive criminal histories are more likely to continue to engage in criminal behavior when compared to those with relatively limited criminal histories.7
Research on repeat or chronic offending has had a substantial influence on the nation’s criminal justice system. As crime spiked in the 1970s through the 1990s, legislators and policymakers responded by relying on research that linked criminal offending with a higher risk of future offending as they created new laws and policy.8
The use of long sentences has increased in nations across the globe over the last several decades, but the U.S. remains an outlier in the extent to which it imposes them. The U.S. holds a substantial proportion of the world’s population of people serving life sentences (40%) as well as the vast majority (83%) of individuals sentenced to Life Without the Possibility of Parole (LWOP). This brief examines how the use of long sentences in the United States compares with the sentencing practices of other countries.
Hoping to selectively incapacitate people who would otherwise engage in chronic offending, legislatures increased the traditional use of long sentences for people with criminal histories and created new habitual offender sentences, including three-strikes laws.9 Evaluations of selective incapacitation indicate that long sentences may produce short- and long-term public safety benefits for people engaged in chronic violent offending. At the same time, this approach may have the opposite effect on people engaged in drug-related or other group-based offending, in which an incarcerated individual is quickly replaced by a new recruit.10
This set of mixed findings points to a larger set of problems. While past offending is associated with a higher risk of future offending, people’s criminal histories are not always clear records of their behavior. Recent research, for instance, shows that members of certain racial and ethnic groups, particularly young Black males, are more likely to live in low-income urban communities that have been heavily policed, which can lead to higher levels of arrest and more extensive criminal histories that are not consistent with chronic offending in other communities.11 This dynamic creates “false positives,” where people’s criminal histories reflect the policy and enforcement choices of the time and the place they came of age, and do not necessarily indicate an increased likelihood of future offending.12 When criminal histories are used in these cases to determine whether to impose prison sentences or enhance sentence lengths, they can perpetuate and exacerbate racial disparities.13
"Evidence indicates that criminal history enhancements can both exacerbate racial disparities and incarcerate people for longer periods of time than are justified by crime prevention concerns."
Since these foundational laws and policies were implemented, research has shown how aging and the natural process of desisting from criminal behavior (the “age-crime curve”) complicates early assumptions about criminal histories. While some people engage in criminal offending throughout their lives, and while certain criminal activities like white collar or organized crime are not affected by aging in the same way as other crimes, research is definitive that criminal offending is a young person’s game, and that, as most people age, they become less likely to offend.14 Because criminal histories take time to accumulate, criminal history enhancements are typically applied to people at a phase in life when studies show they are likely to be in the process of “aging out” of criminal behavior.15
A related set of recent studies show desistance from crime tends to be a gradual process, and indicate that if people remain crime free for extended periods of time, they eventually pose indistinguishable risk of offending from their non-offending peers in the general public.16 As such, criminal history enhancements applied to older people may interrupt the natural processes that characterize desistance.17
The Task Force finds that criminal histories provide important information for sentencing, with implications for assessing criminal culpability and risk to public safety. At the same time, evidence indicates that criminal history enhancements can both exacerbate racial disparities and incarcerate people for longer periods of time than are justified by crime prevention concerns. Therefore, the Task Force recommends that state legislatures and Congress restrict the power of criminal histories to automatically increase sentences involving 10 years of imprisonment in order to ensure such terms are serving public safety purposes.
Legislatures should limit the extent to which criminal history can automatically and significantly increase sentences that require 10 or more years of imprisonment.
State legislatures, Congress, and sentencing commissions should specify that sentencing judges expressly find on the record all of the following factors to further increase sentences that require 10 or more years of imprisonment:
- The sentenced individual’s criminal history demonstrates a substantially elevated risk of reoffending
- Determinations of risk should refer to assessments from actuarial instruments that are transparent, open to public scrutiny, and have been validated for predictive accuracy and responsivity, including race and gender, prior to use.
- Where such a transparent and validated assessment instrument is not available for use, authorities should develop one.18
- The period of imprisonment for the offense of conviction is not sufficient on its own to address the risk of reoffending.
- An increased period of imprisonment does not surpass what the case warranted based on the offense or offenses of conviction.19
State legislatures, Congress, and sentencing commissions should place presumptive limitations on the use of individuals’ criminal history to impose sentences of 10 or more years of imprisonment based on:
- Juvenile criminal history
- A prior conviction, charge, or alleged crime that occurred no more than 10 years prior to the date of sentencing or 10 years after defendant was released from prison
State and federal authorities should support data collection that will assist legislators, elected officials, policymakers, and the general public in assessing the impact of criminal history enhancements of long sentences, including eliminating potential racial, ethnic, socioeconomic, or gender biases.