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46 Am. J. Crim. L. 283 (2019)
Prior Convictions as Moral Opportunities

handle is hein.journals/ajcl46 and id is 291 raw text is: 







Article



PRIOR CONVICTIONS AS MORAL

OPPORTUNITIES

Benjamin Ewing*

                                Abstract

This paper presents  a novel theory ofwhy  recidivists appear  to have a weaker
moral  complaint   about punishment than first-timers: we implicitly assume
that crime  and punishment give people valuable moral opportunities to
reflect upon the sources  of their fallibility as agents and take steps to guard
against them.  This helps to secure them against succumbing   to crime, thereby
diminishing   the reasonableness of their objection to future punishment.
Though   compelling  in theory, this line of thought is problematic  in practice
because   ex-offenders'  opportunities   to  avoid  reoffending   are  arguably
worsened   by criminogenic  prison  conditions and  collateral consequences   of
conviction   to a  greater  extent  than  they  are  improved by the moral
opportunities  inherent   in crime  and  punishment for it. The moral link
between  ex-offenders'  opportunities  and  recidivist premiums implies we
should  bolster the former or scale back  the latter.





     *Assistant Professor, Queen's University Faculty of Law. Earlier versions of this paper were
presented at USC Gould School of Law, Princeton University, the University of Alabama School of Law,
Queen's University Faculty of Law, Yale Law School, Duke Law School, the conference on
Overcriminalization and Indigent Legal Care at Georgia State University, and the Mid-Atlantic Junior
Faculty Forum at the University of Richmond School of Law. For useful comments and fruitful exchanges
in those and other contexts, I am particularly grateful to Matt Adler, Michael Adler, Scott Altman, Emad
Atiq, Ian Ayres, Jack Balkin, Kate Bartlett, Sara Sun Beale, Charles Beitz, Stuart Benjamin, Jamie Boyle,
Curt Bradley, Sam Buell, Guy-Uriel Charles, Walter Dellinger, Deborah DeMott, Mihailis Diamantis,
Charles Ewing, Kim Ferzan, John de Figueiredo, Chad Flanders, Lisa Griffin, Ben Grunwald, Paul
Haagen, Sharon Harris-Ewing, Eisha Jain, Greg Keating, Alex Kirshner, Doug Kysar, Robert Leider,
Marin Levy, Stephen Macedo, Jesse McCarthy, Erin Miller, Philip Pettit, Jed Purdy, Jonathan Quong,
Barak Richman, Stephen Sachs, Richard Schmalbeck, Steven Schwarcz, Neil Siegel, Tim Stoll, Tom
Tyler, Gary Watson, Ernest Young, my assistant at Duke, Sue Hinson, and my advanced criminal law
students at Duke in the spring of 2017. Finally, many thanks to Tori Easton Clark, Rebecca Yung, and the
editorial staff of the American Journal of Criminal Law for their work preparing this article for publication.


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