Are repeat offenders more culpable than first-time offenders?  In the United States, the most important determinant of punishment for a crime, other than the seriousness of the crime itself, is criminal history.  In this Article, Professor Youngjae Lee presents an original and provocative argument in defense of the recidivist premium—the practice of punishing repeat offenders more harshly than first-time offenders—within the context of retributivism and the notion of just deserts.

While theories of deterrence, incapacitation, and rehabilitation may provide plausible defenses of the recidivist premium, the practice has traditionally been problematic for retributivists, who assert that criminals deserve to be punished only to a degree that is proportional to the seriousness of the crime committed.  Professor Lee examines three arguments that attempt to explain why recidivist criminals deserve enhanced punishment—arguments based on character, notice, and defiance—and exposes significant flaws in each.  He argues that the recidivist premium should be thought of as punishment not for a defiant attitude or a bad character trait, but as punishment for an omission.  The culpable omission that justifies the recidivist premium is the repeat offender's failure, after conviction, to arrange his life in a way that ensures a life free of further criminality.  Professor Lee recognizes that how one conducts one's life as a general matter is not properly the business of the state, but asserts that once one is convicted of a crime, one enters into a thick relationship with the state and that relationship gives rise to an obligation for the offender to rearrange his life in order to steer clear of criminal wrongdoing.  For Professor Lee, this relational account can serve both as an affirmative basis for increasing a repeat offender's punishment and as a negative constraint that limits permissible amounts of punishment.  Finally, he argues that the relationship between the offender and the state is a two-way street, in the sense that the obligations of offenders are met with the state's corollary obligation not to interfere with their return to normal life.