Habitual offender
Encyclopedia
A habitual offender is a person who has repeatedly committed the same crime
. Various state
and jurisdiction
s may have law
s targeting habitual offenders, and specifically providing for enhanced or exemplary punishment
s or other sanctions
. They are designed to counter criminal recidivism
by physical incapacitation via imprisonment
.
The nature, scope and type of habitual offender statute
s vary, but generally they apply when a person has been convicted a minimum of twice for various crimes. Some codes may differentiate between classes of crimes (for example, some codes only deal with violent crime
) and the length of time between convictions. Usually the sentence is greatly enhanced, in some circumstances it may be substantially more than the maximum sentence for the crime
. Habitual offender laws may provide for mandatory sentencing
- in which a minimum sentence
must be imposed, or may allow judicial discretion
in allowing the court
to determine a proper sentence. One example of a habitual offender statute is a provision requiring the revocation of a driver's license
for a person convicted
multiple times of driving under the influence
The practice of imposing longer prison
sentences on repeat offenders than on first-time offenders who commit the same crime is not an innovation. For example, New York
has a persistent felony offender law that dates back to the late 19th century. These early habitual offender laws did not provide for mandatory sentencing.
, several state governments
have passed laws which require the state courts to hand down a mandatory and extended sentences to habitual offenders (for example, making the repeated commission of the same misdemeanor
a felony
). Three strikes law
s specifically target those who have been convicted of a serious criminal offense
on three or more separate occasions.
, various states and territories
have adopted habitual offender legislation.
offenses, and the sentencing judge must decide that preventive detention
is required to protect the public.
The minimum nominal sentence that can be imposed is ten years, but the sentencing judge can extend this if they believe that the prisoner's criminal history and/or the nature of the prisoner's offending warrants it.
The longest nominal sentence on sentence(s) of indeterminate imprisonment is 30 years, currently being served by serial pedophile Geoffrey Robert Dobbs (Queensland), who pleaded guilty to 124 sex offences and one count of attempting to pervert the course of justice committed against 63 girls aged between one month and 15 years (including five family members) under his care as a teacher and youth leader from 1972 to 2000.
, the Habitual Offender Act in Canada dealt with multiple offenders. The law was repealed after a Law Commission Report of 1969 found it to be erratically applied and was often used against non-violent and non-dangerous offenders. In 1977, Part XXIV of the Criminal Code was enacted, providing for indeterminate or determinate sentences for offenders found to be dangerous who would be eligible for parole
after three years.
, 1872 was amended a number of times. After Independence, the leaders and social reformers paid attention to this problem. In 1949, the Central government appointed a committee to study the utility of the existence of this law. The committee viewed that the act was against the spirit of the Indian Constitution. It recommended suitable steps to be taken for amelioration of the pitiable conditions of the Criminal Tribes rather than stigmatising them as criminals. As a result, the Criminal Tribes Act of 1871 was repealed in 1952 and the Habitual Offenders Act was enacted in its place. According to the Habitual Offenders Act, an habitual offender is one who has been a victim of subjective and objective influences and has manifested a set practice in crime, and also presents a danger to society in which she/he lives. The Habitual Offenders are usually hardened criminals whose major part of life has been spent in jails. It is because they commit offences at frequent intervals and are sent back to jail.
, the Fidesz-dominated new parliament changed the Penal Code, introducing a "three-strikes law" for repeat offenders on June 8, 2010. The change was signed into law by president László Sólyom
on June 24, 2010.
In Australia laws relating to dangerous and Habitual offenders have been criticized as ignoring the principle of certainty in sentencing. Another major concern in Australia is the considerable disparity that exists in the requirements for dangerous offender status and in the available sentences for such offenders across jurisdictions. Age and offense requirements, indeterminate or fixed sentencing provisions, and review procedures are quite different from state to state.
Some unusual scenarios have arisen, particularly in California in the United States. — the state punishes shoplifting and similar crimes involving over $500 in property as felony petty theft
if the person who committed the crime has a prior conviction for any form of theft
, including robbery
or burglary
. As a result, some defendants have been given sentences of 25 years to life in prison for such crimes as shoplifting
golf clubs (Gary Ewing, previous strikes for burglary and robbery with a knife), nine videotapes (Leandro Andrade, received double sentence of 25 year-to-life for two counts of shoplifting), or, along with a violent assault, a slice of pepperoni pizza from a group of children (Jerry Dewayne Williams, four previous non-violent felonies, sentence later reduced to six years).
In the US on March 5, 2003, the U.S. Supreme Court held by a 5–4 majority that such sentences do not violate the Eighth Amendment
of the U.S. Constitution, which prohibits "cruel and unusual punishment."
Crime
Crime is the breach of rules or laws for which some governing authority can ultimately prescribe a conviction...
. Various state
State (polity)
A state is an organized political community, living under a government. States may be sovereign and may enjoy a monopoly on the legal initiation of force and are not dependent on, or subject to any other power or state. Many states are federated states which participate in a federal union...
and jurisdiction
Jurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...
s may have law
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
s targeting habitual offenders, and specifically providing for enhanced or exemplary punishment
Punishment
Punishment is the authoritative imposition of something negative or unpleasant on a person or animal in response to behavior deemed wrong by an individual or group....
s or other sanctions
Sanctions (law)
Sanctions are penalties or other means of enforcement used to provide incentives for obedience with the law, or with rules and regulations. Criminal sanctions can take the form of serious punishment, such as corporal or capital punishment, incarceration, or severe fines...
. They are designed to counter criminal recidivism
Recidivism
Recidivism is the act of a person repeating an undesirable behavior after they have either experienced negative consequences of that behavior, or have been treated or trained to extinguish that behavior...
by physical incapacitation via imprisonment
Incapacitation (penology)
Incapacitation in the context of sentencing philosophy refers to the effect of a sentence in terms of positively preventing future offending....
.
The nature, scope and type of habitual offender statute
Statute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...
s vary, but generally they apply when a person has been convicted a minimum of twice for various crimes. Some codes may differentiate between classes of crimes (for example, some codes only deal with violent crime
Violent crime
A violent crime or crime of violence is a crime in which the offender uses or threatens to use violent force upon the victim. This entails both crimes in which the violent act is the objective, such as murder, as well as crimes in which violence is the means to an end, such as robbery. Violent...
) and the length of time between convictions. Usually the sentence is greatly enhanced, in some circumstances it may be substantially more than the maximum sentence for the crime
Crime
Crime is the breach of rules or laws for which some governing authority can ultimately prescribe a conviction...
. Habitual offender laws may provide for mandatory sentencing
Mandatory sentencing
A mandatory sentence is a court decision setting where judicial discretion is limited by law. Typically, people convicted of certain crimes must be punished with at least a minimum number of years in prison...
- in which a minimum sentence
Sentence (law)
In law, a sentence forms the final explicit act of a judge-ruled process, and also the symbolic principal act connected to his function. The sentence can generally involve a decree of imprisonment, a fine and/or other punishments against a defendant convicted of a crime...
must be imposed, or may allow judicial discretion
Judicial discretion
Judicial discretion is the power of the judiciary to make some legal decisions according to their discretion. Under the doctrine of the separation of powers, the ability of judges to exercise discretion is an aspect of judicial independence...
in allowing the court
Court
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...
to determine a proper sentence. One example of a habitual offender statute is a provision requiring the revocation of a driver's license
Driver's license
A driver's license/licence , or driving licence is an official document which states that a person may operate a motorized vehicle, such as a motorcycle, car, truck or a bus, on a public roadway. Most U.S...
for a person convicted
Conviction
In law, a conviction is the verdict that results when a court of law finds a defendant guilty of a crime.The opposite of a conviction is an acquittal . In Scotland and in the Netherlands, there can also be a verdict of "not proven", which counts as an acquittal...
multiple times of driving under the influence
Driving under the influence
Driving under the influence is the act of driving a motor vehicle with blood levels of alcohol in excess of a legal limit...
The practice of imposing longer prison
Prison
A prison is a place in which people are physically confined and, usually, deprived of a range of personal freedoms. Imprisonment or incarceration is a legal penalty that may be imposed by the state for the commission of a crime...
sentences on repeat offenders than on first-time offenders who commit the same crime is not an innovation. For example, New York
New York
New York is a state in the Northeastern region of the United States. It is the nation's third most populous state. New York is bordered by New Jersey and Pennsylvania to the south, and by Connecticut, Massachusetts and Vermont to the east...
has a persistent felony offender law that dates back to the late 19th century. These early habitual offender laws did not provide for mandatory sentencing.
United States
In the United StatesUnited States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, several state governments
State governments of the United States
State governments in the United States are those republics formed by citizens in the jurisdiction thereof as provided by the United States Constitution; with the original 13 States forming the first Articles of Confederation, and later the aforementioned Constitution. Within the U.S...
have passed laws which require the state courts to hand down a mandatory and extended sentences to habitual offenders (for example, making the repeated commission of the same misdemeanor
Misdemeanor
A misdemeanor is a "lesser" criminal act in many common law legal systems. Misdemeanors are generally punished much less severely than felonies, but theoretically more so than administrative infractions and regulatory offences...
a felony
Felony
A felony is a serious crime in the common law countries. The term originates from English common law where felonies were originally crimes which involved the confiscation of a convicted person's land and goods; other crimes were called misdemeanors...
). Three strikes law
Three strikes law
Three strikes laws)"are statutes enacted by state governments in the United States which require the state courts to hand down a mandatory and extended period of incarceration to persons who have been convicted of a serious criminal offense on three or more separate occasions. These statutes became...
s specifically target those who have been convicted of a serious criminal offense
Offense (law)
In law, an offence is a violation of the criminal law .In England and Wales, as well as in Hong Kong the term "offence" means the same thing as, and is interchangeable with, the term "crime"....
on three or more separate occasions.
Australia
In AustraliaAustralia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
, various states and territories
States and territories of Australia
The Commonwealth of Australia is a union of six states and various territories. The Australian mainland is made up of five states and three territories, with the sixth state of Tasmania being made up of islands. In addition there are six island territories, known as external territories, and a...
have adopted habitual offender legislation.
New South Wales
Under the provisions of the Habitual Criminals Act 1957 (NSW), an offender can be designated a "habitual criminal" and given an additional protective sentence of between five and 14 years imprisonment. The offender must be at least 25 years of age, have served sentences for at least two indictableIndictment
An indictment , in the common-law legal system, is a formal accusation that a person has committed a crime. In jurisdictions that maintain the concept of felonies, the serious criminal offence is a felony; jurisdictions that lack the concept of felonies often use that of an indictable offence—an...
offenses, and the sentencing judge must decide that preventive detention
Preventive detention
Preventive detention is an imprisonment that is not imposed as the punishment for a crime, but in order to prevent a person from committing a crime, if that person is deemed likely to commit a crime....
is required to protect the public.
Tasmania
An offender who is at least 17 years of age and has been convicted of at least two violent or sexual offences can be declared a dangerous offender and detained indeterminately. A judge must consider the potential of future harm that could be caused by the offender, the circumstances of his or her offenses, medical and psychiatric opinion, and any other matters of relevance. The decision passed by the court is not reviewable; the indeterminate sentence(s) commence upon the expiration of any determinate sentence imposed, and release is by way of an order from the Supreme Court.Western Australia
The Criminal Code Act 1913 (WA) and the Crimes (Serious and Repeat Offenders) Act 1992 (WA) contain provisions for the indeterminate incarceration of youths and adults convicted of particular offenses. The indeterminate sentence(s) commence upon the expiration of any determinate sentence imposed, and release is through a Supreme Court Order or at the discretion of the Governor.The Northern Territory and South Australia
The Criminal Code Act 1983 (NT) and the Criminal Law (Sentencing) Act 1988 (SA) allow for the indeterminate incarceration of a person who is determined to be a habitual criminal and/or incapable of controlling his or her sexual urges. The indeterminate sentence(s) commence upon the expiration of any determinate sentence imposed, and release is by way of an order from the Supreme Court.The Australian Capital Territory, Queensland, and Victoria
The Sentencing Act 2005 (ACT), the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), and the Sentencing Act 1991 (Vic) govern habitual offenders. An offender can be incarcerated indeterminately if there is a high probability, given the offender's character, the nature of his or her offense, psychiatric evidence as to the dangerousness of the defendant, and any other relevant circumstances, that the offender poses a serious threat to the community. The indeterminate sentence(s) must be reviewed by the court when the nominal sentence (the minimum term the offender would have been required to serve if they were not dangerous) has expired, and every three years after.The minimum nominal sentence that can be imposed is ten years, but the sentencing judge can extend this if they believe that the prisoner's criminal history and/or the nature of the prisoner's offending warrants it.
The longest nominal sentence on sentence(s) of indeterminate imprisonment is 30 years, currently being served by serial pedophile Geoffrey Robert Dobbs (Queensland), who pleaded guilty to 124 sex offences and one count of attempting to pervert the course of justice committed against 63 girls aged between one month and 15 years (including five family members) under his care as a teacher and youth leader from 1972 to 2000.
Canada
In CanadaCanada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
, the Habitual Offender Act in Canada dealt with multiple offenders. The law was repealed after a Law Commission Report of 1969 found it to be erratically applied and was often used against non-violent and non-dangerous offenders. In 1977, Part XXIV of the Criminal Code was enacted, providing for indeterminate or determinate sentences for offenders found to be dangerous who would be eligible for parole
Parole
Parole may have different meanings depending on the field and judiciary system. All of the meanings originated from the French parole . Following its use in late-resurrected Anglo-French chivalric practice, the term became associated with the release of prisoners based on prisoners giving their...
after three years.
Pakistan
Section 75 of the Pakistan Penal Code deals with Habitual Offenders. The provisions are activated upon a second conviction for a crime with a minimum sentence of three years imprisonment. The Guidelines for sentencing given to criminal court indicate that the discretion lies with the judge, and an enhanced sentence is not mandatory, and should usually not be given in less serious criminal cases (such as petty theft) or where the convictions are old. The judge is expected to adopt an individualized view and tailor both the decision of awarding an enhanced sentence and the length of it to the case at hand. For this the transcripts of the previous trials can be used.India
The Criminal Tribes ActCriminal Tribes Act
The term Criminal Tribes Act applies to various successive pieces of legislation enforced in India during British rule; the first enacted in 1871 as applied mostly in North India The Act was extended to Bengal Presidency and other areas in 1876, and finally with the Criminal Tribes Act 1911, it...
, 1872 was amended a number of times. After Independence, the leaders and social reformers paid attention to this problem. In 1949, the Central government appointed a committee to study the utility of the existence of this law. The committee viewed that the act was against the spirit of the Indian Constitution. It recommended suitable steps to be taken for amelioration of the pitiable conditions of the Criminal Tribes rather than stigmatising them as criminals. As a result, the Criminal Tribes Act of 1871 was repealed in 1952 and the Habitual Offenders Act was enacted in its place. According to the Habitual Offenders Act, an habitual offender is one who has been a victim of subjective and objective influences and has manifested a set practice in crime, and also presents a danger to society in which she/he lives. The Habitual Offenders are usually hardened criminals whose major part of life has been spent in jails. It is because they commit offences at frequent intervals and are sent back to jail.
Hungary
In HungaryHungary
Hungary , officially the Republic of Hungary , is a landlocked country in Central Europe. It is situated in the Carpathian Basin and is bordered by Slovakia to the north, Ukraine and Romania to the east, Serbia and Croatia to the south, Slovenia to the southwest and Austria to the west. The...
, the Fidesz-dominated new parliament changed the Penal Code, introducing a "three-strikes law" for repeat offenders on June 8, 2010. The change was signed into law by president László Sólyom
László Sólyom
László Sólyom is a Hungarian political figure, lawyer, and librarian who was President of Hungary from 2005 to 2010. Previously he was President of the Constitutional Court of Hungary from 1990 to 1998....
on June 24, 2010.
Criticism
There has been various criticism of Habitual Offender Laws. Some examples are included below.Unjust and unusual results
Habitual Offender laws, depending on their scope and discretionary room given to judges can lead to persons being punished quite severely for relatively minor offenses. The discretionary nature of the laws means that they can be applied unevenly.In Australia laws relating to dangerous and Habitual offenders have been criticized as ignoring the principle of certainty in sentencing. Another major concern in Australia is the considerable disparity that exists in the requirements for dangerous offender status and in the available sentences for such offenders across jurisdictions. Age and offense requirements, indeterminate or fixed sentencing provisions, and review procedures are quite different from state to state.
Some unusual scenarios have arisen, particularly in California in the United States. — the state punishes shoplifting and similar crimes involving over $500 in property as felony petty theft
Felony petty theft
Felony petty theft is the colloquial term for a statute in the California Penal Code that makes it possible for a person who commits the crime of petty theft to be charged with a felony rather than a misdemeanor if the accused had previously been convicted of a theft-related crime at any time in...
if the person who committed the crime has a prior conviction for any form of theft
Theft
In common usage, theft is the illegal taking of another person's property without that person's permission or consent. The word is also used as an informal shorthand term for some crimes against property, such as burglary, embezzlement, larceny, looting, robbery, shoplifting and fraud...
, including robbery
Robbery
Robbery is the crime of taking or attempting to take something of value by force or threat of force or by putting the victim in fear. At common law, robbery is defined as taking the property of another, with the intent to permanently deprive the person of that property, by means of force or fear....
or burglary
Burglary
Burglary is a crime, the essence of which is illicit entry into a building for the purposes of committing an offense. Usually that offense will be theft, but most jurisdictions specify others which fall within the ambit of burglary...
. As a result, some defendants have been given sentences of 25 years to life in prison for such crimes as shoplifting
Shoplifting
Shoplifting is theft of goods from a retail establishment. It is one of the most common property crimes dealt with by police and courts....
golf clubs (Gary Ewing, previous strikes for burglary and robbery with a knife), nine videotapes (Leandro Andrade, received double sentence of 25 year-to-life for two counts of shoplifting), or, along with a violent assault, a slice of pepperoni pizza from a group of children (Jerry Dewayne Williams, four previous non-violent felonies, sentence later reduced to six years).
Compatibility with fundamental rights
The laws have been challenged on the basis of violating fundamental rights.In the US on March 5, 2003, the U.S. Supreme Court held by a 5–4 majority that such sentences do not violate the Eighth Amendment
Eighth Amendment to the United States Constitution
The Eighth Amendment to the United States Constitution is the part of the United States Bill of Rights which prohibits the federal government from imposing excessive bail, excessive fines or cruel and unusual punishments. The U.S. Supreme Court has ruled that this amendment's Cruel and Unusual...
of the U.S. Constitution, which prohibits "cruel and unusual punishment."
External links
- Restriction of Habitual Offenders (Punjab) Act 1918 at Asian Legal Information Institute.