Crime seriousness and prior criminal record

‘Character is much easier kept than recovered’. This most oft repeated quote emphasizes the importance of one’s reputation, whether spoken or otherwise.  In fact, the production of witnesses to testify on the character of an accused is an important part of all court proceedings, and has an impact on the proceedings.  Thus the presence (or absence) of a prior criminal record is definitely relevant as far as criminal justice is concerned, with the criminal history including not only the numbers of prior arrests, but also the seriousness of previous offenses.  The gravity of previous offences and whether or not they resulted in prison sentences is an important ingredient of sentencing procedures.  Thus, Crime Seriousness and Prior Criminal Records are of definite legal relevance.

Prior Criminal Record

There is a positive correlation between a person’s prior criminal record and the chances that firstly, such a person is more likely to commit an offence in the future, and secondly, that there is a greater probability of such offences resulting in imprisonment.  Moreover, as a result of mandatory sentencing policies, repeat offenders are now far more likely to face imprisonment (Mauer, M 1999 p 9).  A prior record sets into motion totally different responses amongst law enforces, with the suspect considered ‘guilty until proved innocent’, rather than the other way around which is the basis of modern jurisprudence.  However, this ground reality has resulted in two developments that go contrary to conventional logic.

Firstly, though crime rates have declined, prison populations have actually increased, which questions the very basic premise that the threat of getting caught and imprisoned actually deters crime.  In fact, the prison population is likely to grow in coming years. A study by the Bureau of Justice Statistics revealed that the 1994 prison population would rise by 51% by the year 2000 (Ditton, P and Wilson, D as cited in Mauer p 13).  This is a direct result of taking into account a person’s prior criminal record, however minor and irrespective of the relevance of previous offences to the new charge.

The second aspect is the increasing numbers of African Americans in particular (apart from other minorities) that constitute the prison population. This is in spite of the fact that several positive changes in society such as the civil rights movement and enhanced educational and employment opportunities. As a result of this, the number of African American in prison should have decreased, but the same is not the case.  49% of prison inmates in the US are African Americans, although they constitute only 13 % of the population, up from about 30% in the 1950’s for a comparable percentage of the population (Mauer  p 3).  The reasons for this are not conclusive, though a racial bias in the criminal justice system could be one possible reason.

‘Blacks’ and other minorities are more likely to be stopped for routine checks than ‘whites’ and booked for petty offences that come to light as a result of this enhanced screening.  Thus, these ‘discretionary law enforcement practices result in minorities acquiring a criminal history more rapidly’ (Mauer, p 5).  This aspect has become more acute post 9/11 with minorities especially Asians, now at the receiving end of spot checks. As a result, even if the first offence is of a minor nature, it greatly enhances the chances of a prison sentences for subsequent offences irrespective of the gravity or seriousness of the new offence.  The point to note, however, is that prior criminal history, no matter how minor, is always taken into account.

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Crime Seriousness

There is no doubt that the gravity of the offense has a great bearing on prison sentences. As a general rule, the “more serious a prior criminal record, the greater the likelihood of receiving a prison term for a new offense” (Mauer, p 5). Thus not only prior criminal activity but also the severity of the offence is definitely taken into account by the judicial system, with impact on conviction rates as well as the severity of the sentence imposed.  There is also a general feeling that ‘once an offender, always an offender’ which goes against the law of natural justice.  However, this is often the case, especially if an accused has committed a similarly serious offence in the past. This is then seen as fitting the pattern or profile as reflected in the criminal history of the offender. Even in this, the race of the offender seems to have an effect on the outcome of the judicial proceedings.

In murder cases, the races of both the victim as well as the offender affect the outcome.  Defendants charged with killing ‘whites’ faced a 4.3 times greater chance of receiving a death sentences (Baldus, D et al, cited in Mauer, p 7).  Similarly, the race of the offender is also a factor in sentencing with minorities more likely to receive stiffer punishments.  For property offenses and misdemeanors, minorities are more likely to receive jail terms as compared to ‘whites’ who are more likely to left of with a warning, concluded  a US statewide study (Nelson, J cited in Mauer, p 8).  However, violent offenders are more likely to be sentenced to prison irrespective of their origins, especially once a threshold of violence has been crossed which engenders a feeling of revulsion, thus proving conclusively that crime seriousness in also a legally relevant variable.

The criminal justice system is supposed to be fair and impartial.  However factors such as race and ethnicity, as well as the social background of the offender also do play a role in the final outcome, both in terms of conviction rates, as well as the nature and severity of sentences imposed.  Not withstanding these limitations, however, what clearly stands out is that the prior criminal history of an offender as well as the seriousness of the crime is always taken into account.

If the purpose of punitive measures such as imprisonment is to control crime then imprisonment seems to have served its purpose as evidenced by a 17% decline in crime since 1992 (Mauer, p 11).  However, this is at odds with the increasing numbers of people who are either currently in prison or who have been imprisoned at one time or the other.  To really create a free and civil society, reductions in crime rates must be matched by corresponding decreases in the prison population and of persons having criminal records.  Unfortunately, that is not the case. What is required is a change in current legislation that will make the law less discriminatory, while at the same time ensuring that proclaimed offenders who constitute a threat to society are not allowed to roam at large. To this end the twin factors of previous criminal history and seriousness of previous offenses will have to be taken into account.