Does Criminal History Count Too Much in Sentencing Decisions?

Abstract This chapter presents several arguments why criminal history counts too much in sentencing. These reasons include the difficulties with adequately justifying criminal history premiums under the leading punishment rationales of retribution and utilitarianism. The problems are pronounced in U.S. sentencing guidelines jurisdictions where the current prominent role of prior record was adopted as part of a historical mishap. Further, prior record enhancements (PREs) carry significant negative consequences, including the exacerbation of racial disparities. The chapter concludes with considerations on how prior record practices could be corrected.