How Criminal History Informs—and Misinforms—Decision-Making in the Criminal Legal System

Criminal history is among the most influential factors shaping decisions in the modern criminal legal system. Prior record affects outcomes at every stage, from charging through parole. Although long considered relevant to punishment, contemporary policies and practices disproportionately inflate criminal history's impact. Upon close inspection, the traditional normative and empirical justifications (e.g., retribution, deterrence, and incapacitation) provide insufficient support for many current prior record policies and practices. Nevertheless, prior record's impact is profound, adding to mass incarceration and exacerbating cumulative disadvantage. In this review, we discuss the reliance on prior record in both formal policy and informal discretionary decision-making. We offer a theoretical framing of prior record that is consistent with historical practice and consonant with punishment philosophy and discuss several suggestions for right-sizing prior record policy and practice.