Play Fair with Recidivists

Abstract

Retributivists thus face a difficult challenge. Either we must go against the social grain, and perhaps our own intuitions, by insisting that a criminal offense carry the same penalty or punishment no matter how many previous convictions an offender has accrued; or we must find a way to justify the recidivist premium. I shall take the second route here by arguing that recidivism itself is a kind of criminal offense. In developing this argument, I shall rely on Youngjae Lee's insightful analysis of "recidivism as omission." I shall complement his analysis, however, by grounding it in a conception of criminal law as a cooperative practice-a grounding that Lee's defense of the recidivist premium otherwise lacks. In doing so, I shall incorporate Lee's "recidivism as omission" into the familiar theory that justifies punishment as a matter of fair play.