Sentencing multiple conviction offenders
| Author | Jakub Drápal |
| DOI | http://doi.org/10.1177/1477370821996903 |
| Published date | 01 January 2023 |
| Date | 01 January 2023 |
https://doi.org/10.1177/1477370821996903
European Journal of Criminology
© The Author(s) 2021
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DOI: 10.1177/1477370821996903
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Sentencing multiple conviction
offenders
Jakub Drápal
Charles University, Czech Republic
Abstract
Sentenced offenders who re-offend prior to serving their previously imposed sentence (multiple
conviction offenders) are situated between multiple and repeat offenders. This article examines
how they should be sentenced based on censure, consequentialist and desert theories. I conclude
that these aims cannot be achieved if they are treated as repeat offenders, and neither can the
requirement of proportionality. Censure is, similarly, communicated primarily via hard treatment
not via sentence pronouncement. I further analyse all continental European penal codes; half of
them do not have any provision governing the sentencing of multiple conviction offenders (tacitly
treating them as repeat offenders) and only two countries provide detailed sentencing guidance.
I conclude by offering recommendations for the principled sentencing of multiple conviction
offenders.
Keywords
Comparative sentencing, multiple offending, sentencing, sentencing multiple offenders
Offenders who commit several offences are typically divided into two categories: multi-
ple offenders, who commit several offences before they are sentenced for any of them,
and repeat offenders, who commit further offences after having served their sentence for
a previous offence. The consequences of this division are substantial for the offender:
whereas some form of totality principle is applied to multiple offenders – resulting in
sentence reduction – repeat offenders are given a recidivist premium, and therefore receive
a harsher sentence. Sentencing for both of these groups has been extensively studied,
especially in recent years (see Frase and Roberts, 2019; Roberts and Von Hirsch, 2010;
Ryberg et al., 2018). There is, however, another group of offenders situated in between
these two, who have mostly been ignored in both the theoretical and the empirical litera-
ture. This group consists of offenders who had already been sentenced for a previous
Corresponding author:
Jakub Drápal, Faculty of Law, Charles University, nám. Curieových 901/7, Praha 1, Czech Republic.
Email: drapalja@prf.cuni.cz
996903EUC0010.1177/1477370821996903European Journal of CriminologyDrápal
research-article2021
Article
2023, Vol. 20(1) 142–160
offence, but re-offended prior to serving that sentence in full. To distinguish these offend-
ers from multiple and repeat offenders, I will call them multiple conviction offenders,
since their multiple offences result in multiple convictions prior to punishment.
Cases of multiple conviction offending are particularly likely to occur when the
offender re-offends in one of the following four circumstances: (1) after being given an
alternative sanction or during the probation period of a suspended prison sentence; (2)
after being handed a prison sentence but before beginning to serve it; (3) during impris-
onment; or (4) on parole. To illustrate the difference between simple repeat, multiple and
multiple conviction offenders clearly, basic scenarios are presented in Figure 1. The
timelines show the varying sequences of offence committals (O1 and O2), convictions
(C1 and C2) and prison sentences being served (P1 and P2).
This article discusses whether sentencers should take previously imposed sanctions
that have not yet been served into account when sentencing multiple conviction offend-
ers, and, if so, to what extent they should do so under various conditions. If these offend-
ers are considered to be similar to multiple offenders, the totality principle should be
applied in some form, resulting in a more lenient sentence; if they bear a closer resem-
blance to repeat offenders, the recidivist premium should be applied and result in a much
harsher sanction. This shows the importance of principled sentencing providing guid-
ance and boundaries for sentencers whose decisions might otherwise take vastly differ-
ent shape in cases with very similar facts.
Since multiple conviction offending can take various forms, I first discuss whether
principled sentencing should lead to a binary decision to treat the multiple conviction
offender either as a multiple offender or as a repeat offender, or whether there should be
a range of approaches applicable to multiple conviction offenders. Next, I discuss the
censuring effect of the pronouncement of the previous sentence and its impact on sen-
tencing for multiple conviction offenders, because this is the moment that separates mul-
tiple offenders from multiple conviction offenders. Since principled sentencing needs to
Figure 1. Diagram of repeat, multiple and multiple conviction offenders.
143
Drápal
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