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Texas Law Review

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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 the offender's criminal history. Despite the popularity of the view that repeat offenders deserve to be treated more harshly than first-time offenders, there is no satisfactory retributivist account of the "recidivist premium." This Article advances a retributivist defense of the recidivist premium and proposes that the recidivist premium be thought of as punishment not, as sometimes suggested, for a defiant attitude or a bad character trait, but as punishment for an omission. The culpable omission that justifies the recidivist premium is, this Article argues, the repeat offender's failure, after his conviction, to arrange his life in a way that ensures a life free of further criminality. This Article argues that, although how individuals conduct their lives as a general matter is not properly the business of the state, once offenders are convicted of a crime, they enter into a thick relationship with the state and that this relationship gives rise to an obligation for the offenders to rearrange their lives in order to steer clear of criminal wrongdoing. This theory, "Recidivism as Omission," offers a firm theoretical foundation to justify the recidivist premium because it does not rely on unwarranted inferences from repeat offenders' criminal histories that they are "bad people" or that they are "defiant of authority." Rather, this account focuses on the significance of conviction and punishment themselves and the ways in which they alter an offender's relationship to the state. In addition, this Article argues that obligations between the state and offenders run in both directions and that we should recognize the ways in which the state may be a responsible actor that should share the blame for recidivists' reoffending.