RETHINKING THE ROLE OF CRIMINAL HISTORY IN SENTENCING

In this chapter we present an overview and critical assessment of criminal history practices in US sentencing guidelines systems. In recent years scholars have highlighted problems associated with punitive criminal history policies. Researchers have also uncovered tremendous variation in the way guidelines jurisdictions use information about a person’s criminal history at sentencing: in some contexts, prior record can be the primary driver of a person’s sentence, while in others it might hardly count at all. Building on this growing literature, we synthesize the research informing both retributive and utilitarian justifications for criminal history sentence enhancements. We then review the negative consequences of strong prior record policies and offer a series of novel ways of thinking about criminal history scores. We conclude that while considerations of prior record will undoubtedly continue to play a key role at sentencing, jurisdictions should think more critically and more creatively about how aspects of an individual’s criminal history are factored into sentencing decisions.