Recidivism, Retributivism, and the Labor Market

One of the most important factors judges in sentencing guidelines in the U.S and the U.K is the offender's prior criminal record. An offender with prior convictions faces longer (sometimes much longer) prison time for the same offense than a first time offender does. Retributive justifications for this practice argue that offenders with criminal records deserve harsher punishment or are more culpable for their offense. The U.S Federal Sentencing Guidelines Manual, for example, says “A defendant with a record of prior criminal behavior is more culpable than a first offender and thus deserving of greater punishment.”

There are currently more than 16.4 million ex-felons in the U.S. Nearly 2/3 of those recently released will be charged with new crimes, and more than 40% will return to prison within three years. Incarceration is associated with more limited future employment and earning, which are the strongest predictors of future crime. Felons are often excluded from public housing, ineligible for welfare and student loans, and not allowed to drive. They are restricted from jobs as septic tank cleaners, embalmers, billiard room employees, real estate agents, plumbers, eyeglass dispensers, and barbers in many U.S states. In a recent study, Devah Pager found that a prior criminal record reduces the likelihood of a job callback by 50% for whites and 64% for blacks.

In this paper, I will explore whether the labor market stigma of incarceration can be reconciled with retributive justifications for the higher sentences imposed on repeat offenders. I ask whether stigmatization ought to be conceived as part of the punishment, and outline two possible approaches to the question. Diminished job opportunities ought not to be conceived as part of any reasonable kind of retributive punishment, I argue, because, among other reasons, the retributive principle of proportionality cannot be satisfied. If the mark of incarceration is a "side effect" of punishment, on the other hand, I argue, then repeat offenders (at least those who commit "acquisitive" crimes) may deserve less punishment than first time offenders, rather than more.