RECIDIVISM (RECIDIVITY). — In the language of moralists and jurists, it denotes 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 correcting himself or almost so, even though he has been admonished to make a firm purpose of amendment.Various authors note that the recidivist is not necessarily a habitual sinner (e.g., an individual who confessed to having fallen only four or five times in a year into the same sin); yet they agree in affirming that in practice it is almost impossible to encounter a recidivist who is not habitual. There are three signs of recidivism: a) the repetition of the same sins, whether from an internal cause or an external occasion; this demonstrates the bad habit that has been contracted. Therefore, one who falls into different sins, for which he is repentant, is not a recidivist. b) The repetition of confessions (at least three or four) with the same sins. Such confessions, repeated without amendment, give rise to doubts about the sincerity of the penitent’s dispositions. c) A complete or almost complete lack of amendment. Therefore, one who puts into practice the means suggested by the confessor and strives strongly against temptations, even if he should later fall again, is not a recidivist.
The recidivist who brings the necessary dispositions may always be absolved. Indeed, for absolution, the sincere present disposition of the soul is required, which is not bound to future amendment nor frustrated by the foreseen possibility of future relapse. In practice, however, in cases of this kind the confessor may encounter a difficulty, 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 means suggested, and on the other this purpose is informed by past experience. The confessor, on the one hand, must, as a physician, assist souls, and on the other, as a minister of the cult, dispense 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 must be sought in discernment that leads to knowing whether the penitent has fallen through internal weakness or through bad will. In the first case, it is easier to conceive sorrow and propose amendment, and there is greater hope of fruit from the grace of the sacrament than from delaying absolution. In the second case, because of a bad affection for sin (not having removed the occasion, not having fulfilled the imposed obligation), generally the penitent does not have the necessary dispositions or at least gives rise to doubt; the confessor is not at ease and cannot absolve. Nevertheless, recidivists are not required to have a greater sorrow or a firmer purpose than other penitents; that is, extraordinary signs of penance are not demanded. It is only required that the confessor, according to prudence and charity, may judge the recidivist to be disposed.
Angele Gentile
II. LAW
In a technical sense, and with different qualifications in various positive legal systems, it denotes the state of one who, after having been convicted of a crime, commits another.In a less technical and much broader sense, recidivism refers to the objective circumstance of relapse into violation of the law. The distinction between these two meanings is purely formal and consists in the positive fact that the legislator considers recidivist only one who has actually been previously convicted by sentence; in all other respects the elements are identical in both meanings.
For recidivism in the strict sense, however, it is indispensable that the conviction has become final or, at least (especially in canon law), that in cases of personal states that never become final, there have been two conforming sentences.
1. In Italian law
The Italian Penal Code distinguishes three forms of recidivism: 1) simple recidivism, i.e., objective relapse at any time (art. 99, para. 1); 2) aggravated recidivism, which occurs: a) with relapse into a crime of the same kind at any time (art. 99, para. 2, no. 1); b) with relapse within five years of the previous conviction (not from the time the crime was committed, art. 99, para. 2, no. 2); c) with relapse occurring during the period of execution of the penalty (in a penal institution or during the period of conditional release), or even after execution of the penalty at any time, or during the period of flight following a final sentence (art. 99, para. 2, no. 3); 3) repeated recidivism, i.e., relapse into a crime committed by one who was already a recidivist in the strict sense (art. 99, para. 4).If simple recidivism is involved, the law provides for the application of the penalty for the new crime increased by up to one-sixth (art. 99, para. 1); if aggravated recidivism, an increase of the penalty by up to one-half (art. 99, para. 2), starting from a minimum of one-third in cases of multiple aggravating circumstances (art. 99, para. 3); if repeated recidivism, the increase is set from a minimum of one-third to a maximum of one-half, and if it is repeated recidivism aggravated by a minimum of one-half to a maximum of two-thirds more than that established for the crime committed (art. 99, para. 4). In any case, the increase applies to all and each of the penalties to be applied, if these are different. However, given the particular severity of the Italian Penal Code in considering as a recidivist even one who commits a new crime in a matter completely different from that of the previous one (art. 99, para. 1), it is established that, except in the sole case of recidivism in a crime of the same species (specific recidivism), and the judge has the faculty to exclude recidivism between crimes and contraventions, or between intentional or preterintentional crimes and negligent crimes, or between contraventions (art. 100). Therefore, in contrast to this, which the law calls facultative recidivism, there exists a necessary recidivism, which must be unconditionally accepted by the judge with regard to the penalty. These are crimes that violate the same legal provision or that, although envisaged by different provisions, nonetheless, by reason of the nature of the acts that constitute them or the motives that determine them, present, in concrete cases, fundamental common characteristics (art. 111) and are precisely called, collectively, crimes of the same kind (ibid.).
It should be noted, however, that according to art. 106 para. 1, those in whose favor an extinctive cause of the crime (e.g., amnesty) or of the penalty alone (e.g., prescription) intervened are not exempt from incurring recidivism if they later relapse into another crime; those in whose favor an extinctive cause of the penal effects also intervened are not, however, considered recidivists (art. 106, para. 3), such as, e.g., the special case of art. 544 of the Penal Code, by which crimes against sexual freedom (arts. 519-26) and the crime of corruption of minors (art. 530) are extinguished if the perpetrator (even if there was already a conviction and its execution is in progress) marries the offended party.
As for the effects of recidivism, it is well known that, on the one hand, recidivists generally do not benefit from amnesty (art. 151, para. 5), nor from conditional release (art. 164, para. 2, no. 1); nor from judicial pardon (art. 169, para. 3), nor from the extinction of punishment for imprisonment and fines due to prescription (art. 172, para. 7), etc.; whereas, on the other hand, the minimum time required for the prescription of the punishments of arrest and fine is extended to ten years for recidivists instead of the five years 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 for non-recidivists (art. 179, para. 2).
2. In canon law
The CIC defines a recidivist as one who «commits another delict of the same kind after a condemnation in such circumstances... as to reasonably suggest his persistence in the will to violate the law» (can. 2208 § 1). This is therefore a case of specific or aggravated recidivism, which requires:a) a new delict, which presupposes the previous one but is distinct from it (thus excluded from recidivism are continued or permanent delicts and attempts). Moreover, the previous delict must have resulted in a condemnation, even if conditional, even if the penalty was not actually served. b) The new delict must be of the same kind as the previous one. This is the distinguishing condition of specific recidivism. It is known that the CIC, following the classical school, distinguishes delicts by the object of the violated law, i.e., by the nature of the right infringed (can. 2196); but it does not expressly determine the various kinds of delicts. There are, however, implicit classifications or indications in the titles from 11 to 19 of Book V of the CIC (Part 3: *De poenis in singula delicta*). c) The delict must be repeated under circumstances suggesting persistence in the offender’s evil will. Among the elements to be carefully weighed, the time factor is foremost; a repetition at a short interval is an indication of persistence in evil will. Then comes the number of delicts committed. The judgment of such circumstances, however, is entrusted to the judge, who must also consider other elements, e.g., the offender’s psychological state, greater vehemence of temptation, etc.
The CIC also contemplates generic recidivism, when it defines a recidivist as one who has offended repeatedly, even by committing different delicts (can. 2208 § 2). Thus, the repetition of various delicts, considering merely their number and disregarding their kind, may lead the judge to conclude that the offender has not retracted his intention to offend; in this way, the offender increases his culpability. Even for generic recidivism, a condemnation is a prerequisite, since otherwise there would be no distinction between recidivism and the accumulation of delicts (Roberti).