Paying for the Past: The Case Against Prior Record Sentence Enhancements

Professor Richard Frase co-authored Paying for the Past: The Case Against Prior Record Sentence Enhancements, the first book to take a deep dive into the issue of prior convictions— the most important factor in sentencing, after the seriousness of the crime. Frase’s co-author is Oxford University Law Professor Julian V. Roberts. The book was published by Oxford University Press in August 2019.

Who is the target audience for this book?

The people whom we most hope will read this book and take action are the members and staffs of sentencing guidelines commissions. There are 17 of these commissions in the United States right now. They are the bodies that create sentencing guidelines for judges and then monitor the implementation of those guidelines and make changes over time. We’ve studied sentencing enhancement based on prior conviction records; this is a universal feature of sentencing guidelines, and there are a lot of problems with it. So we hope that the people who make those rules and policies will pay attention.

Why did you decide to focus your book on prior record sentence enhancement?

I became interested in this topic because prior record is one of the two main factors that determine a recommended sentence under a guidelines system. The other one is the seriousness of the offense for which the offender is being sentenced. It struck me that very little attention had been paid to how guidelines systems compute and use criminal history, even though in some cases this factor receives more weight in determining a sentence than the crime a person is being sentenced for.

How does using prior records as a basis for sentence enhancement increase racial disparities?

There are strong correlations in all modern justice systems between race, social class, crime, and law enforcement. There is a lot of racial disparity in arrests and convictions, and therefore in prior conviction records. The more weight a system gives to prior records, the more strongly prior record enhancements contribute to racial disparities in sentencing.

What is something surprising that you found in researching this book?

It was surprising that the formulas are so different across the guidelines systems, yet no one had asked why. The rules differ on the magnitude of the enhancement, the elements that are included, and the weight given to old prior convictions. It was shocking to discover there are such huge differences in something that everyone assumes is a relevant factor, and yet intuition or local customs have led them to totally different formulas. They can’t all be equally good.

What’s a key takeaway of this book?

Even though everyone assumes a prior record is a natural reason for enhancing an offender’s sentence, it often doesn’t hold up or it’s excessive relative to the supposed justifications. That’s costing us expensive prison beds. And the longer prison sentences are not making the offenders any better.

What differentiates this book from others on the market?

There are books that have looked at guidelines sentencing generally, but this book dives into one key aspect of sentencing guidelines—prior record enhancements across the country in all the guidelines systems, examining what they count and what effect it has. For this key aspect of guidelines sentencing, there’s nothing else like it.

What about jurisdictions that do not have sentencing guidelines?

There is some reason to believe, but more research is needed on this, that criminal history enhancements are greater in guidelines systems than they are in non-guidelines systems. But we end the book with a challenge to any individual who is in a non-guidelines systems, or doing research on such a system: What is the impact of prior record enhancements in that system? Do they raise the same problems as the ones we have identified in guidelines systems?

What’s your best one-sentence pitch for why someone should read this book?

Everything most people believe about prior record and sentencing is probably wrong.