Recidivism (Recidivity)

RECIDIVA (RECIDIVITÀ). — In the language of moralists and jurists, this denotes the condition of one who falls again into the same sin or crime.

I. MORAL THEOLOGY

A recidivist is one who falls into the same sins, already repeatedly confessed, without correcting himself or scarcely doing so, although he has been admonished to make a resolution to amend.

Various authors point out that a recidivist is not necessarily one who has acquired a habit (e.g., an individual who confessed to having fallen only four or five times in a year into the same sin); but they agree in affirming that, in practice, it is almost impossible to encounter a recidivist who has not acquired such a habit. There are three characteristics of recidivism: a) repetition of the same sins, whether from an internal cause or an external occasion; this demonstrates that a bad habit has been contracted. One who falls into different sins, of which he is repentant, is therefore not a recidivist. b) Repetition of confessions (at least three or four) involving the same sins. Such confessions, repeated without amendment, raise doubts about the seriousness of the penitent’s dispositions. c) Complete, or nearly complete, lack of amendment. One who puts into practice the means suggested by the confessor and struggles resolutely against temptations is therefore not a recidivist, even if he subsequently falls again into sin.

A recidivist who has the proper dispositions may, in principle, always be absolved. Indeed, absolution requires the sincere present disposition of the soul, which is not dependent upon future amendment and is not invalidated by the foreknowledge of a future relapse. In practice, however, in cases of this kind the confessor may encounter a difficulty, not easily overcome, in forming a certain judgment concerning the sincerity of the penitent’s dispositions; on the one hand there is the serious resolution to put the suggested means into practice, while on the other this resolution is weakened by previous experience. On the one hand, the confessor must, as a physician, help souls; on the other, as a minister of worship and dispenser of the divine treasures, he must not rashly expose the Sacrament to the danger of sacrilege or invalidity. Avoiding both excessive leniency and excessive rigor, the solution should be sought through an inquiry aimed at determining whether the penitent has fallen through internal weakness or through ill will. In the first case, it is easier to conceive contrition and propose amendment, and greater fruit may be hoped for from the grace of the Sacrament than from delaying absolution. In the second case, because of an attachment to sin (having failed to remove the occasion, or to fulfill the obligation imposed), the penitent generally does not have the requisite dispositions, or at least gives reason to doubt them; the confessor is not at peace and cannot absolve. Nevertheless, recidivists are not required to have greater contrition or a firmer resolution than other penitents; that is, extraordinary signs of penance are not demanded. It is required only that the confessor be able to judge, according to prudence and charity, that the recidivist is properly disposed.

In a less technical and considerably broader sense, r. means 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 only one who has in fact already been convicted by judgment of a previous offense to be a recidivist; otherwise, the elements are identical in both.

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

1. In Italian law

The Italian Criminal Code distinguishes three forms of r.: 1) simple r., that is, an objective relapse whenever it occurs (art. 99, para. 1); 2) aggravated r., which exists: a) with relapse into an offense of the same kind, whenever it occurs (art. 99, para. 2, no. 1); b) with relapse within five years of the previous conviction (not from the time when the offense was committed, art. 99, para. 2, no. 2); c) with relapse occurring during the period of execution of the sentence (in a penal institution or during conditional release), or even after execution of the sentence at any time, or during the period of evasion following a final judgment (art. 99, para. 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, para. 4).

Where the case is one of simple r., the law provides for application of the penalty prescribed for the new offense, increased by up to one sixth (art. 99, para. 1); where it is aggravated r., an increase of up to one half is prescribed (art. 99, para. 2), beginning with a minimum increase of one third in cases involving several aggravating circumstances (art. 99, para. 3); where it is repeated r., the increase is set at a minimum of one third and a maximum of one half, and where it is aggravated repeated r., at a minimum of one half and a maximum of two thirds above that established for the offense committed (art. 99, para. 4). In every case, the increase is understood to apply to each and every penalty to be imposed, where these are different. However, given the particular severity of the Italian Criminal Code in considering even one who commits a new offense in a completely different area from that of the previous offense to be a recidivist (art. 99, para. 1), it is established that, apart from the sole case of r. involving an offense of the same kind (specific r.), “the judge has the power to exclude r. between felonies and contraventions, or between intentional or preterintentional felonies and negligent felonies, or between contraventions” (art. 100). Thus, in opposition to this, which the law calls optional r., there exists mandatory r., which must, that is, be unavoidably accepted by the judge with regard to the penalty. This concerns offenses “which violate the same provision of law” or which, “although provided for by different provisions … nevertheless, by reason of the nature of the acts constituting them or of the motives that determined them, display, in particular cases, fundamental characteristics in common” (art. 101), and which are accordingly collectively called “offenses of the same kind” (ibid.).

It should be noted, however, that, under art. 106 para. 1, those in whose favor a cause extinguishing the offense (e.g., amnesty) or the penalty alone (e.g., limitation) has intervened are not exempt from incurring r. if they subsequently relapse into another offense; on the other hand, those in whose favor a cause extinguishing the penal effects as well has intervened are not considered recidivists (art. 106, para. 3), such as, for example, the special provision of art. 544 of the Criminal Code, by which offenses against sexual freedom (arts. 519–26) and the offense of corrupting minors (art. 530) are extinguished where their perpetrator (even if there has already been a conviction and its execution is in progress) marries the injured person.

As regards the effects of r., it is well known that, on the one hand, amnesty is generally not applied to recidivists (art. 151, para. 5), nor conditional suspension (art. 164, para. 2, no. 1), nor judicial pardon (art. 169, para. 3), nor extinction by limitation of the penalty of imprisonment and of a fine (art. 172, para. 7), etc.; while, on the other hand, the minimum period for limitation of the penalties of arrest and fine is increased for recidivists to ten years instead of the five required by law (art. 173, para. 1), and for their possible rehabilitation a period of ten years is likewise required instead of five, as is the case with non-recidivists (art. 179, para. 2).

2. In canon law. — The CIC defines as a recidivist one who “after conviction commits another offense of the same kind in such circumstances … as reasonably to warrant the belief that he persists in his will to violate the law” (can. 2208 § 1). The case is therefore one of specific or aggravated r., for which the following are required:

a) A new offense, presupposing the previous one but distinct from it (continued or permanent offenses and attempted offenses are therefore excluded from r.). In addition, for the previous offense the offender must have been convicted, at least conditionally, 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 according to the object of the law violated, that is, according to the nature of the right infringed (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 to offend. Among the elements requiring the closest examination, the circumstance of time is foremost; repetition at a short interval is an indication of persistence in evil intent. The number of offenses committed must then be considered. Judgment concerning these circumstances, however, is entrusted to the judge, who must also take into account other elements, e.g., the person’s psychological 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 by committing different offenses (can. 2208 § 2). The repetition of various offenses, therefore, with regard simply to their number and disregarding their kind, may be a reason leading the judge to conclude that the intention to offend has not been renounced; in this way the offender increases his imputability. Conviction is likewise a prerequisite for generic r., since otherwise there would be no distinction between r. and the accumulation of offenses (Roberti).