Use of Criminal Records in Charging and Sentencing

It strikes many as unfair that an old conviction, for which the defendant paid the price, can come back to make a new offense more serious. What are the justifications for this practice? And how does the prosecutor prove that the old conviction actually happened?

By , Attorney · UC Law San Francisco

A criminal record is a list of a person's arrests and convictions. Prosecutors use defendants' prior convictions (usually just called "priors") when deciding which crimes to charge and to make sentences harsher in various ways. For example, defendants with priors might face longer jail or prison sentences, mandatory minimum sentences, and felony rather than misdemeanor charges for similar conduct. Judges also use priors to make sentencing choices, like whether to grant or deny probation.

This article outlines the different ways prosecutors and courts use defendants' prior convictions in charging and sentencing. For information on how prosecutors might use defendants' priors against them at trial, see Evidence of Prior Convictions: Admissible Against Defendants Who Testify?

Using Priors When Deciding Which Crimes to Charge

Priors can elevate a crime that is ordinarily an infraction to a misdemeanor, or a crime that is ordinarily a misdemeanor to a felony. For example, a defendant's first driving on a suspended license charge might be an infraction, but second and subsequent charges will likely be misdemeanors. Similarly, a defendant's first driving under the influence (DUI) offense is typically a misdemeanor, but a third or fourth DUI offense within a specified time (usually 10 years) is a felony in most states.

Sometimes, having a prior conviction can turn an otherwise innocent activity into a crime. For example, most states and the federal government make it a crime for people previously convicted of any felony to possess a firearm.

Prosecutors are generally allowed to dismiss prior conviction allegations, often as part of plea bargains.

Using Priors as Sentencing Enhancements

For most crimes, the law specifies a range of possible punishments. For example, a misdemeanor might be punishable by up to one year in jail. After a defendant is convicted by plea bargain or trial, the judge decides the appropriate sentence within the allowable range. Prosecutors use factors (called sentencing enhancements) that allow—and sometimes require—judges to increase a defendant's sentence beyond the normal range. Priors are commonly used by prosecutors to:

Increase penalties. Priors can enhance (increase) sentences by lengthening the maximum jail or prison time for an offense, increasing fines, or both. In the 1990s, many states passed three-strikes laws, which make long sentences mandatory (like life in prison) for repeat offenders of certain kinds of offenses. Prior convictions can also mandate consequences like driver's license suspensions and participation in anger management or DUI classes.

Impose mandatory minimum jail or prison sentences. As touched on above, statutes (laws) usually provide a range of possible punishments for a crime. For example, a judge might have the option to impose anywhere from zero to 180 days jail for a misdemeanor. But some defendants have to serve a minimum amount of jail time when prosecutors allege priors as sentencing enhancements. DUI laws, again, are good examples. In California, a first-time DUI offender has to serve at least two days and up to six months in jail. A third-time DUI offender has to serve at least six months and up to one year in jail.

Using Priors as Aggravating Factors

A defendant's prior convictions are among the circumstances that help sentencing judges choose the appropriate sentence within a statutory range. For example, suppose Daniel is convicted of robbery and a judge has the option to sentence him to prison for two, three, or five years. A judge could use Daniel's prior theft convictions as a reason to sentence him to the maximum term of five years. If Daniel has no priors, the judge might sentence him to the low term of two years. When used in this way, priors are called aggravating factors. Judges typically focus on the number, recency, and seriousness of defendants' priors.

Judges also use priors as criteria for deciding whether to:

Reasons for Using Priors in Charging and Sentencing

Many defendants and advocates for criminal justice reform ask: Why should defendants' prior convictions—for which they have already been punished—count against them in subsequent prosecutions?

Lawmakers point to two main reasons for using priors to increase punishment. First, priors can be a proxy for a defendant's risk of future offending–past conduct predicts future behavior. As a result, more punishment is necessary to deter and prevent recidivism. Second, many people believe that recidivists are more culpable (blameworthy) than first offenders, because they didn't learn their lessons from prior sentences and now deserve additional punishment.

Starting in the 2010s, in response to exploding prison populations, legal reforms have rolled back some enhancements, like three-strikes laws and one-year sentence enhancements for having served time in prison for prior convictions.

Proving Prior Convictions

When prosecutors intend to use a prior conviction as a way to charge a more serious crime, they must mention the prior in their charging documents, by claiming that it happened and that it can therefore be used to elevate the charge. But that seemingly simple step ("Defendant was previously convicted of Penal Code section 123 on April 10, 2020, in the Superior Court of Amador County, California") raises some gnarly legal issues. How does the prosecutor prove that statement, and what is the standard of proof? What if the acts that resulted in the conviction would not, today, result in a conviction (think about possession of small amounts of marijuana for personal use, now no longer a criminal offense in many states)? Or, if the conviction occurred in another state, what happens if the same behavior would not have supported a conviction in the state where the current charges are being brought?

The U.S. Supreme Court gave us an answer to the first question (how to prove the prior) raised above. In Apprendi v. New Jersey, 530 U.S. 466 (2000), the Court examined a case where the trial judge increased the sentence for a firearms charge by referring to a statement allegedly made by the defendant, showing animus towards the victim's race. The prosecutor, however, had not included a "hate crime" charge, so the truth of the statement had not been examined or proved. The Court ruled that any fact, like the alleged statement, that increases the penalty for a crime beyond the statutory maximum must be alleged in complaints or indictments and proven to a jury beyond a reasonable doubt. But the court did not apply this rule to charging the existence of a prior conviction. Consequently, in most jurisdictions, prosecutors must prove priors to a judge (typically with court records) by only a preponderance of the evidence, not beyond a reasonable doubt. Although defendants have no federal constitutional right to a jury trial on priors, defendants in some states have a statutory right to one.

Defendants can challenge the validity (factual or constitutional) of prior convictions with a motion to strike. Potential grounds for motions to strike priors include:

  • inaccurate record of arrests and prosecutions (called "rap sheets")
  • denial of the right to counsel
  • ineffective assistance of counsel
  • plea not voluntarily or knowingly made, and
  • in the interests of justice.

Do Priors Ever Go Away?

Given the significant impact priors can have on repeat offenders' sentences, defendants often wonder if priors ever go away.

The short answer is not really. Under the plain language of many expungement statutes, criminal records that are sealed can't be used by people like landlords and employers, but can be used by prosecutors and judges in later prosecutions and sentencings.

In some states, priors "wash out" for sentence-enhancing purposes when defendants avoid new convictions for a period of time specified by statute. For example, most states have a 10-year wash-out period for DUI priors. Other states, like Minnesota, call it a "look-back" period. For example, a first domestic assault is typically a misdemeanor. But, prosecutors can look back at the last ten years of a defendants' criminal history and charge people with two prior convictions for similar offenses with a felony. (Minn. Stat. § 609.2242 (2020).)

Talk to a Lawyer

If you have a criminal record and are facing a new criminal charge, talk to an experienced criminal defense lawyer as soon as possible. An experienced lawyer can explain the applicable sentencing laws to you and help you decide whether to plea bargain or fight your case.

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