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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. 283

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