Most criminals end behind bars again. A Danish philosopher says there is a logical argument for punishing repeat offenders less harshly. (Photo: Colourbox)

Serial criminals could be punished less harshly

It can be logically argued that repeat offenders should be punished less harshly than today because society hinders the criminal in living a normal life, say philosophers in a new anthology which turns the punishment debate on its head.

Many countries punish recidivist criminals – those who return to crime after a prison sentence – harder than the standard punishment for the crime itself. In California, for instance, under the ‘three strikes and you’re out’ legislation, criminals are sentenced to prison for 25 years to life after their third conviction.

The argument for such extreme punishment is that we can lock them up for a long time far away from the rest of us if the threat of prison doesn’t stop them from repeated crime.

But a number of philosophers now cast doubt on this argument and the idea of punishing criminals with previous records harder than first-time criminals.

In a new anthology, ‘Recidivist Punishments: The Philosopher’s View’, the philosophers debate whether it is ethically reasonable to give harsher sentences.

When criminals are released after serving their sentence, the opportunities available to them in the world they re-enter are far more restricted than before they went to jail.

Thomas Søbirk Petersen

“Society lacks a philosophical-ethical aspect in this matter,” says the anthology’s editor, Jesper Ryberg, professor of ethics and philosophy of law at Roskilde University (RUC) in Denmark.

One of the authors in the anthology is Thomas Søbirk Petersen, associate professor in punishment and ethics at RUC. Although it is not necessarely his point of view, he writes that one could logically argue that criminals who are punished again should receive a milder punishment than the standard punishment for the crime for a first-time conviction.

He says that having served a jail sentence increases their motivation to commit further crime after their release.

“When criminals are released after serving their sentence, the opportunities available to them in the world they re-enter are far more restricted than before they went to jail,” says Petersen.

Society is partly responsible if released prisoners commit new crimes, and their punishment should therefore be milder.

Thomas Søbirk Petersen

“Their record makes it more difficult for them to get a job, and rebuilding their lives and paying off debts such as legal fees without a job is more difficult.”

In other words, the criminals are in a worse position after their punishment than before, and the probability that they will return a life of crime is far higher than the probably that law-abiding people turn to crime.

Straight back behind bars

A study conducted by the US Department of Justice in 2002 shows that 67.7 percent of the 300,000 prisoners released in 1994 were convicted of new crimes within three years, and accounted for almost five million arrests. 

The statistics in other countries show a similar picture: more than half of the prisoners released in Finland in 1993-2001 were back behind bars within five years.

“This means you can argue that society is partly responsible if released prisoners commit new crimes,” says Petersen. “And their punishment should therefore be milder.”

Danish research from 2008 supports this view. In the Rockwool Foundation Research Unit’s report ‘Forbryderen og samfundet. Livsvilkår og uformel straf (The offender and society. Conditions of life and indirect punishment)’, the lead researcher behind the report, Torben Tranæs, states that punishment raises the risk of new crime.

The report shows that a prison sentence reduces a person’s labour market opportunities considerably. Poorer job prospects also increase the tendency to commit new crime. And people who experience a sudden and considerably increased risk of unemployment are more likely to commit crime.

Varying backgrounds play a role

“But it isn’t possible to say directly whether this extra punishment in the form of poorer job opportunities – society’s informal punishment – is a trigger for new crime, or whether it is the imprisonment itself, the poor company or other factors,” says Tranæs.

“My point of view is controversial,” says Petersen. “But you can argue for it on the basis that the criminal has deserved his punishment – and that if society limits his opportunities and stigmatises him through a list of previous convictions, then he deserves punishment that is less harsh than that given to a first-time criminal.”

He adds that people have quite different opportunities in life, yet the punishment criminals receive for the same crime is the same.

According to Ryberg, the main aspect of the anthology is a discussion, using ethical-philosophical views, of whether society can justify punishing criminals harder for renewed crime because they have been punished for crimes that have committed previously.

(ScienceNordic has made changes to the text after the researcher stressed that this view was merely a logical possiblility and not necessarily his personal view.)


Read the article in Danish at

Translated by: Michael de Laine

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