Recidivism (Recidivity)

RECIDIVISM (RECIDIVITY). - In the language of moralists and jurists, it indicates the condition of one who falls back into the same sin or crime.

I. MORAL THEOLOGY

A recidivist is one who falls into the same sins, already repeatedly confessed, without amending himself, or almost so, although he has been admonished to formulate the purpose of amendment.

Various authors point out that the recidivist is not necessarily a habitual sinner (for example, an individual who confessed that he had fallen only four or five times in a year into the same sin); but they agree in affirming that in concrete terms it is almost impossible to encounter a non-habitual recidivist. There are three notes of recidivism: a) repetition of the same sins, whether from an internal cause or from an external occasion; which demonstrates the bad habit that has been contracted. Therefore, he is not a recidivist who falls into different sins, of which he is repentant. b) Repetition of confessions (at least three or four) with the same sins. Such confessions, repeated without amendment, engender doubts about the seriousness of the penitent's dispositions. c) Complete, or almost complete, lack of amendment. Therefore, he is not a recidivist who puts into practice the means suggested by the confessor and fights strongly against temptations, even if he will later fall back into sin.

The recidivist who brings the due dispositions can, in himself, always be absolved. In fact, for absolution the sincere actual disposition of the soul is required, which is not tied to future amendment and is not frustrated by the foresight of a future relapse. But, in practice, in the face of cases of this kind, a difficulty may arise in the confessor, not easily surmountable, in forming a sure judgment about the sincerity of the penitent's dispositions; on the one hand there is the serious purpose of putting into practice the suggested means, and on the other this purpose is weakened by previous experiences. The confessor, on the one hand, must, as a physician, help souls; on the other, as a minister of worship, dispenser of divine treasures, he must not rashly expose the Sacrament to the danger of sacrilege or of nullity. Avoiding excessive leniency and excessive rigor, the solution must be sought in the inquiry that leads to knowing whether the penitent has fallen through internal frailty or through bad will. In the first case it is easier to conceive sorrow and to propose amendment, and there is reason to hope for greater fruit from the grace of the Sacrament than from the postponement of absolution. In the second case, because of the bad attachment to sin (not having removed the occasion, not having fulfilled the obligation imposed), generally the penitent does not have the due dispositions or at least makes them doubtful; the confessor is not at peace and cannot absolve. However, greater sorrow and a firmer purpose are not required in recidivists than in other penitents; that is, extraordinary signs of penance are not demanded; it is required only that the confessor can judge according to prudence and charity the disposed recidivist.

Angelo Gentile

II. LAW

In a technical sense, and with different qualifications in the various positive legal systems, it denotes the state of one who, after having been convicted of an offense, commits another.

In a less technical and relatively much broader sense, by r. is meant the objective circumstance of a relapse into violation of the law. The distinction between the one and the other meaning is purely formal; and consists in the positive fact that the legislator considers a recidivist only one who has in fact already been convicted by judgment for a previous offense; in all else the elements are identical in the one and in the other.

For r. in the strict sense, however, it is indispensable that the conviction have already become final, or at least (especially in canon law) that, where these are personal states that never become final, there have been two concordant sentences.

1. In Italian law

The Italian Penal Code distinguishes three forms of r.: 1) simple r., that is, the objective relapse whenever it occurs (art. 99, paragraph 1); 2) aggravated r., which occurs: a) with relapse into an offense of the same kind whenever it takes place (art. 99, paragraph 2, no. 1); b) with relapse within five years of the previous conviction (not from the moment of the offense committed, art. 99, paragraph 2, no. 2); c) with relapse occurring during the period of execution of the penalty (in a penal institution or during the state of conditional release), or even after the execution of the penalty at any time whatsoever, or during the period of custody following a final sentence (art. 99, paragraph 2, no. 3); 3) repeated r., that is, relapse into an offense committed by one who was already a recidivist in the strict sense (art. 99, paragraph 4).

Where simple r. is involved, the law provides for the application of the penalty proper to the new crime increased by up to one sixth (art. 99, paragraph 1); if aggravated r., an increase of the penalty by up to one half is provided (art. 99, paragraph 2), beginning from a minimum of one third more in cases of multiple aggravating circumstances (art. 99, paragraph 3); if repeated r., the increase is set at a minimum of one third up to a maximum of one half, and where aggravated repeated r. is involved, at a minimum of one half up to a maximum of two thirds more than that established for the offense committed (art. 99, paragraph 4). In every case the increase applies to each and every one of the penalties to be applied, where these are different. Nevertheless, given the particular severity of the Italian Penal Code in treating as a recidivist even one who commits a new offense in a matter completely different from that of the previous one (art. 99, paragraph 1), it is established that, except in the sole case of r. in an offense of the same kind (specific r.), "the judge has the power to exclude r. between crimes and misdemeanors, or between willful or ultra-intentional crimes and negligent crimes, or between misdemeanors" (art. 100). Therefore, in opposition to this, which the law calls optional r., there exists a necessary r., which must be inexorably accepted by the judge with regard to the penalty. These are offenses "that violate the same provision of law" or that "although provided for by different provisions... nevertheless, by the nature of the facts that constitute them or of the motives that determined them, present, in concrete cases, common fundamental characteristics" (art. 101) and that are precisely called collectively "offenses of the same nature" (ibid.).

It should be noted, however, that under art. 106, paragraph 1, those in whose favor a cause extinguishing the offense (e.g., amnesty) or of the penalty alone (e.g., statute of limitations) intervened are not exempt from incurring r. should they subsequently relapse into another crime; on the other hand, those in whose favor a cause extinguishing also the penal effects intervened are not considered recidivists (art. 106, paragraph 3), such as, for example, the special one of art. 544 of the Penal Code by which offenses against sexual freedom (arts. 519-26) and the offense of corruption of minors (art. 530) are extinguished, in the event that the perpetrator of them (even if there has already been a conviction and its penal execution is in progress) contracts marriage with the offended person.

As to the effects of r., it is well known that, on the one hand, amnesty generally does not apply to recidivists (art. 151, paragraph 5), nor suspended sentence (art. 164, paragraph 2, no. 1); nor judicial pardon (art. 169, paragraph 3), nor extinction of the penalty of imprisonment and fine by statute of limitations (art. 172, paragraph 7), etc.; while, on the other hand, the minimum time for the statute of limitations of the penalties of arrest and fine is for recidivists raised to ten years instead of the five required by law (art. 173, paragraph 1) and for their possible rehabilitation a period of time is likewise required of ten years instead of five as happens for non-recidivists (art. 179, paragraph 2).

Lorenzo Simeone

2. In canon law

The CIC defines a recidivist as one who "commits after conviction another offense of the same kind in such circumstances... as to give reasonable grounds for believing his pertinacity in the will to violate the law" (can. 2208 § 1). We are therefore faced with a specific or aggravated r., for which the following are required: a) a new offense, which presupposes the previous one but is distinct from it (thus continuous or permanent offense and attempted offense fall outside r.). It is further required that for the previous offense the offender have been convicted, at least with a suspended sentence, even if the penalty has not been served. b) The new offense must be of the same kind as the previous one. This is the distinguishing condition of specific r. It is known that the CIC, following the classical school, distinguishes offenses by the object of the law violated, that is, by the nature of the right harmed (can. 2196); but it does not determine ex professo the various kinds of offenses. There are nevertheless implicit classifications or indications in this regard in titles 11 to 19 of Book V of the CIC (part 3: De poenis in singula delicta). c) The offense must be repeated in circumstances that suggest persistence in the will of the offender. Among the elements that must above all be weighed is first of all the circumstance of time; a repetition at a short interval is an indication of persistence in the evil will. Then comes the number of offenses committed. The judgment, however, of such circumstances is entrusted to the judge, who must also consider other elements, e.g., the person's mental depression, a greater vehemence of temptation, etc.

The CIC contemplates generic r., when it defines as a recidivist one who has offended several times, even committing different offenses (can. 2208 § 2). The repetition, therefore, of various offenses, having regard simply to the number and disregarding the kind, can be a reason inducing the judge to conclude for the non-retraction of the purpose to offend; in this way the offender increases his imputability. For generic r. too, conviction is a prerequisite, since otherwise there would be no distinction between r. and the accumulation of offenses (Roberti).

Angelo Gentile