The Habitual Criminal – A Comparative Study
An issue devoted to the study of the habitual criminal would
not be complete without reference to various approaches taken by
other jurisdictions to this problem. We have therefore selected at
random eleven jurisdictions and obtained brief summaries of the
substantive and case law dealing with the habitual offender in those
jurisdictions, together with statements concerning the frequency
of its application and contemplated reforms. Cross references to these
different legal systems as well as an overall comparison with the
Canadian situation will enable the reader to derive a fuller appre-
ciation of the subject under consideration.
The McGill Law Journal Editorial Board would like to take this
opportunity to express its appreciation to those scholars without
whose contributions this comparative study would have been im-
possible.
Contents
MAINE
GEORGIA
MISSOURI
WASHINGTON
CALIFORNIA
TEXAS
FRANCE
GERMANY
AUSTRALIA
INDIA
U.S.S.R. and
UNION REPUBLICS
Harry P. Glassman
John F. T. Murray
Edward H. Hunvald, Jr.
George E. Small
Miss Jeanne L. Arthur
and H. Kenneth Branson
W. Royal Furgeson
Christiane Dangeard
Dr. Hermann Blei
Duncan Chappell
N. R. Madhava Menon
Reader I. M. Galperin
No. 4] HABITUAL CRIMINAL – COMPARATIVE STUDY 653
The Maine Habitual Offender Statute
Harry P. Glassman*
Maine has had an habitual offender statute since 1824.1 Although
the statute has been amended several times, it remains in substantially
the same form as originally adopted.2 It presently provides:
When a person is convicted of a crime punishable by imprisonment in the
State Prison, and it is alleged and proved in a trial, or admitted in a trial,
that he has been before convicted and sentenced to any state prison, by any
court of this State, or of any other state, or of the United States, unless
pardoned therefor, he may be punished by imprisonment in the state prison
for any term of years. Allegation of such prior conviction and sentence shall
be by indictment separately found, and upon which the defendant shall not
be arraigned until after such time as he shall have been convicted upon
the current principal offense.3
The most recent amendment to the statute ocurred in 1961. 4
This amendment accomplished two changes: First, it relieved from
the burden of the statute a person who had been pardoned for his
previous conviction. Second, it required that the charge of being an
habitual offender be contained in a separate indictment upon which
the defendant could not be arraigned until after he had been convicted
upon the current charge. Prior to the adoption of this amendment
the charge of being an habitual offender was generally joined as
a separate count in the indictment charging the defendant with the
current offense. 5
The constitutionality of the habitual offender law was upheld in
1949 against an allegation that it denied equal protection of the laws
in violation of the Fourteenth Amendment to the Constitution of the
United States. 6
A defendant convicted of being an habitual offender does not
receive a separate sentence on that conviction. The statute is inter-
* Professor of Law, University of Maine.
1Me. Laws 1824, ch. 282, 18.
2 The history of Maine’s habitual offender law is discussed in Jeness V. State,
144 Me. 40, 64 A. 2d 184 (1949).
3 Me. Rev. Stat. Ann., tit. 15, 1742 (1964).
4 Me. Laws 1961, ch. 268, 2.
5 The Maine Court had characterized the prejudice to a defendant resulting
from this practice as “incidental”. Ingerson v. State, 146 Me. 412, 82 A. 2d
407 (1951).
6 Joness v. State, 144 Me. 40, 64 A. 2d 184 (1949).
McGILL LAW JOURNAL
[Vol. 13
preted as increasing the maximum sentence which may be imposed
for the offense of which the defendant is currently convicted.7
Apparently the statute is not used with very much frequency.
At the present time, of the approximately 240 inmates of the State
Prison who have previously been committed to a state prison only
one is serving a sentence pursuant to the habitual offender law. 8
Of course, it is possible that many indictments charging a defendant
with being an habitual offender are filed and then dismissed in
exchange for a plea of guilty to the current offense. There are no
statistics available on the extent to which this plea-bargaining device
may be employed; it would be safe to assume that the practice would
vary from county to county depending upon the attitude of the
particular county attorney. Since the Maine Rules of Criminal Pro-
cedure do not permit the filing of a dismissal without permission of
the court,9 any use of the habitual offenders statute for plea-bargain-
ing must have court approval.
Recidivist Punishment in Georgia
John F. T. Murray –
For over a hundred years, the criminal code of the State of Georgia
has included a statute which requires that a second offender who
has previously been sentenced to confinement and labor in the pen-
itentiary shall be sentenced to the longest period of time and labor
prescribed for the punishment of the second offense. The statute
has been revised several times and the present version is found in
section 27-2511 of the criminal code of Georgia.’ Georgia practice
10, 157 A.2d 874 (1960).
7 Austin v. State, 158 Me. 292, 183 A. 2d 515 (1962) ; State v. Small, 156 Me.
8 Letter dated February 27, 1967 from Allan L. Robbins, Warden, Maine State
Prison.
9 Me. R. Crim. P. 48(a); Glassman, Maine Practice, Rules of Criminal Pro-
cedure, 48.1 (1967).
* Professor of Law, University of Georgia.
1 Conviction of second offense, longest time; service of sentences by fourth
If any person who has been convicted of an offense and sentenced
offenders. –
to confinement and labor in the penitentiary shall afterwards commit a crime
punishable by confinement and labor in the penitentiary, he shall be sentenced
to undergo the longest period of time and labor prescribed for the punishment
No. 4] HABITUAL CRIMINAL – COMPARATIVE STUDY 655
requires that the indictment for the current offense include the
former conviction and punishment, and like any other allegation in
the indictment, this former conviction and punishment must be proven
in open court.2 Unless waived, the indictment is read by the judge
or the prosecutor and referred to again in the charge to the jury.
In addition, the jury takes a copy of the indictment into the jury
room when it begins deliberations. In this state, the jury is also re-
sponsible for adjudging the sentence. The judge does not necessarily
impose such sentence, for he may delay sentencing until he has had
an opportunity to review the recommendations of a probation officer
on his staff. At the time of sentencing, he may impose the sentence
of the jury or he may suspend or probate any portion of the sentence. 3
An informal check with the Solicitor General (prosecutor) and
several defense counsel in the Western Judicial Circuit and a review
of the cases in other circuits indicate that the option to include
previous convictions in the indictment is rarely exercised. Various
reasons are given for this state of affairs. Often the previous con-
viction will be in another jurisdiction making it inconvenient, if
not difficult, to obtain the necessary authentication before proceeding
to trial on the current case. The presence of the other conviction in
the indictment is believed by some to confuse the present issue or
to lead the jury to believe that unreasonable retribution is being
exercised against the accused. There has also been a feeling of doubt-
ful constitutionality in that the defendant’s character is put into
issue by the state. This doubt may, of course, be considered as having
been resolved in favor of the state by the case of Spencer v. Texas
decided on January 23, 1967, by the United States Supreme Court.4
The decision in that case, however, was by the narrow margin of
five to four and the strong dissent by Mr. Chief Justice Warren
gives comfort to prosecutors who already have doubts of their own.
of the offense of which he stands convicted: Provided, however, any person
who, after having been three times convicted under the laws of this State of
felonies, or under the laws of any other State or of the United States, of crimes
which, if committed within this State would be felonies, commits a felony within
this State other than a capital felony, must, upon conviction of such fourth
offense, or of subsequent offenses, serve the maximum time provided in the
sentence of the jury or the judge based upon such conviction, and shall not
be eligible for parole until the maximum sentence has been served. For the
purpose of this section conviction of two or more crimes charged on separate
counts of one indictment or information or in two or more indictments or in-
formation consolidated for trial, shall be deemed to be only one conviction.
2 Reid v. State, 49 Ga. App. 429 (1934).
3 Georgia Code Sec. 27-2502.
4 27 S. Ct. 148 (1967).
656
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Significantly, the proposed revision of the criminal procedure code
of Georgia, presently being studied by the legislature, would repeal
section 27-2511 and substitute therefore a new section 27-1701 (b),
which states as follows:
If a defendant is convicted of a third or subsequent felony, under the
laws of this State, or of any crime under the laws of the United States or
of any other State which if committed within this State would be a felony
under the laws of this State, the judge may disregard the sentence of the
jury and impose punishment of imprisonment up to the maximum provided
by law. Previous convictions shall not be alleged in the indictment nor shall
the jury be charged as to them.5
Missouri Habitual Criminal Statute
Edward H. Hunvald, Jr.*
The Missouri “habitual criminal” statute, 556.280 R.S. Mo., 1959,1
is perhaps not typical of habitual criminal statutes. The only signif-
icant effect of the statute is that sentences given under it are determ-
5 (Italic supplied). See Tentative Draft of the Proposed Criminal Procedure
Code of Georgia. The Harrison Company, Atlanta.
* Professor of Law, University of Missouri.
‘R.S. Mo., 1959, 556.280. Second offense, how punished. –
If any person con-
victed of any offense punishable by imprisonment in the penitentiary, or of any
attempt to commit an offense which, if perpetrated, would be punishable by
imprisonment in the penitentiary, shall be sentenced and subsequently placed
on probation, paroled, fined or imprisoned therefor, and is charged with having
thereafter committed a felony, he shall be tried and if convicted punished as
follows:
(1)
If
the subsequent offense be such that, upon a first conviction, the
offender could be punished by imprisonment in the penitentiary, then the per-
son shall receive such punishment provided by law for the subsequent offense
as the trial judge determines after the person has been convicted.
(2) Evidence of the prior conviction, sentence and subsequent imprisonment
or fine, parole, or probation shall be heard and determined by the trial judge,
out of the hearing of the jury prior to the submission of the case to the jury,
and the court shall enter its findings thereon. If the finding is against the
prior conviction, sentence and subsequent imprisonment or fine, parole or proba-
tion, then the jury shall determine guilt and punishment as in other cases.
(3) If the prior conviction is appealed then this section does not apply until
after the judgment is affirmed or the appeal is dismissed; except, that a sub-
sequent offense committed after a conviction in the trial court but prior to
affirmance of the conviction or dismissal of the appeal shall, after the affirm-
ance or dismissal, be pleadable and provable as a prior conviction under the
provisions of this section.
No. 4] HABITUAL CRIMINAL – COMPARATIVE STUDY 657
ined by the trial judge. Sentences of those tried as first offenders
are determined by the jury.
Prior to the 1959 revision, evidence of a defendant’s prior felony
conviction, imprisonment and discharge was presented to the jury,
and if the jury found these necessary facts, and found the defendant
guilty of the offense charged, then they were required to set the
punishment at the longest term of imprisonment allowed for the
offense charged.’
Under the present law, if a defendant is charged as a “second
offender”, the trial judge holds a hearing out of the presence of the
jury, and determines if the necessary prior criminal record exists.
If he finds that the defendant comes under the statute, then if the
jury finds the defendant guilty of the offense charged, the judge
imposes the sentence. There is no requirement that the judge impose
the most severe sentence allowable.
The State of Washington’s Habitual Criminal Statutes
George E. Small *
Washington law provides that an habitual criminal is one con-
victed “of a crime in which fraud.., is an element, or of petit larceny,
or of any felony, who shall previously have been convicted,… of
any crime which … would amount to a felony, or who shall previously
have been twice convicted.., of petit larceny, or of any mis-
demeanor.., of which fraud or intent to defraud is an element…””
Under this section of the statute, imprisonment for not less than ten
years is directed.
This statute also provides that a life sentence may be imposed
for two prior convictions “of any crime of which fraud… is an
element, or of petit larceny or of any felony,” or for four convictions
for “petit larceny, or of any misdemeanor.., of which fraud.., is
an element.. .” 2 Although the sentence imposed is mandatory, the
State Board of Prison Terms and Paroles actually determines the
term of imprisonment.
1 See State V. Morton, 338 S.W. 2d 858, 861
* Third year Law student, Gonzaga University.
‘Washington Revised Code 9.92.090.
2 Washington Revised Code 9.95.115.
(Mo. 1960).
McGILL LAW JOURNAL
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Habitual criminal statutes of the State of Washington have been
challenged in its supreme court on approximately forty-five occasions
without significant success. The statute has withstood challenges to
its constitutionality on grounds of lack of due process, denial of
equal protection, denial of the right to a speedy trial, double jeopardy,
being an ex post facto law, imposing double punishment and consti-
tuting cruel and unusual punishment. The discretionary power of a
prosecuting attorney to charge a convicted citizen of being an habitual
criminal is held to be a question of policy and not one of constitution-
ality.
Status as an habitual criminal is acquired only after being first
convicted of a substantive crime. A subsequent jury trial then de-
termines whether the accused is an habitual criminal and if a verdict
of guilty is returned, a more severe sentence is imposed for conviction
of the substantive crime, not for the “crime” of being an habitual
criminal. It is reversible error to convict a person of being an habitual
criminal before he has been convicted of a substantive crime, or to
sentence a criminal for the substantive crime before he has been
tried on the habitual criminal charge.
Habitual criminal convictions are based upon evidence of prior
convictions consisting of certified records supplied by the State
Bureau of Criminal Identification. Fingerprint experts may be called
upon to assist in verifying that the accused is the individual convicted
of the crime charged in the supplemental information. The granting
of a pardon does not blot out a prior conviction under the habitual
criminal statute but merely restores that individual’s civil rights.
The habitual criminal charge may be included on the same informa-
tion charging the substantive crime. However, it must be upon a
separate sheet of paper and must not be called to the attention of
the jury during the trial for the substantive offense.
An anomaly in the law subjects habitual criminals to an operation
for the prevention of procreation. A single case reached the appellate
level in 1912 in which an order directing such an operation was
sustained.
No. 4] HABITUAL CRIMINAL – COMPARATIVE STUDY 659
Summary of California Habitual Criminal Law
Jeanne L. Arthur and H. Kenneth Branson *
While California provides generally for increased penalties upon
conviction of various crimes if the offender has certain prior con-
victions,’ Penal Code Section 644 limits the term “habitual criminal”
to those persons convicted of one of the list of serious crimes who
have either two or three prior convictions for crimes of similar
gravity. The law provides that an habitual criminal shall be punished
by imprisonment for life.2 Penal Code Section 644 is an expression
* Jeanne L. Arthur, Associate Editor of The Santa Clara Lawyer.
H. Kenneth Branson, Law Student, University of Santa Clara.
‘Cal. Pen. Code 666 (Prior Petit Theft); Cal. Pen. Code 667; Cal. Pen.
Code 3051; Cal. Veh. Code 23102 (Drunk Driving); Cal. Pen. Code 314
(Indecent Exposure); Cal. Hlth. & Safety 11500 et. seq. (Narcotics Violations);
Cal. Pen. Code 3024 (Crimes committed with a deadly weapon).
2 Cal. Pen. Code 644, set forth below. The lists have been amended from
time to time. For a prior conviction to be counted toward a section 644 deter-
mination, it must have been on the section 644 list at the time it was committed.
In re Harincar, 29 Cal. 2d 403, 407, 176 P.2d 58 (1946). Penal Code 644.
Habitual criminals; life imprisonment; exceptional cases; discretion of court;
effect upon death penalty.
(a) Every person convicted in this State of the crime of robbery, burglary
of the first degree, burglary with explosives, rape with force or violence,
arson as defined in Section 447a of this code, murder, assault with intent
to commit murder, train wrecking, felonious assault with a deadly weapon,
extortion, kidnaping, escape from a state prison by use of force or dangerous
or deadly weapons, rape or fornication or sodomy or carnal abuse of a
child under the age of 14 years, or any act punishable under Section 288
of this code, conspiracy to commit any one or more of the aforementioned
felonies, who shall have been previously twice convicted upon charges sep-
arately brought and tried, and who shall have served separate terms therefor
in any state prison and/or federal penal institution either in this State
or elsewhere, of the crime of robbery, burglary, burglary with explosives,
rape with force or violence, arson, murder, assault with intent to commit
murder, grand theft, bribery of a public official, perjury, subornation of
perjury, train wrecking, feloniously receiving stolen goods, felonious assault
with a deadly weapon, extortion, kidnaping, mayhem, escape from a state
prison, rape or fornication or sodomy or carnal abuse of a child under
the age of 14 years, or any act punishable under Section 288 of this code,
conspiracy to commit any one or more of the aforementioned felonies, shall
be adjudged a habitual criminal and shall be punished by imprisonment in
the state prison for life;
(b) Every person convicted in this State of the crime of robbery, burglary
of the first degree, burglary with explosives, rape with force or violence,
McGILL LAW JOURNAL
[Vol. 13
of the theory that penal laws are for the protection of society, rather
than for punishment of the offense; that a persistent and hardened
offender is more dangerous to society than one with fewer offenses.8
It does not create a substantive offense, but merely provides for more
severe punishment of those who have proved immune to punishment. 4
For a person to be declared an habitual criminal, the prior con-
victions must be charged in the indictment or information, and proved
as a matter of fact for the jury.5 The prior convictions must have
been determined at separate proceedings.6 Convictions in states other
than California will be counted in the determination of habitual
criminality,7 but the offense must meet the definition of the corres-
arson as defined in Section 447a of this code, murder, assault with intent
to commit murder, train wrecking, felonious assault with a deadly weapon,
extortion, kidnaping, escape from a state prison by use of force or dangerous
or deadly weapons, rape or fornication or sodomy or carnal abuse of a
child under the age of 14 years, or any act punishable under Section 288
of this code, conspiracy to commit any one or more of the aforementioned
felonies, who shall have been previously three times convicted, upon charges
separately brought and tried, and who shall have served separate terms
therefor in any state prison and/or federal penal institution, either in this
State or elsewhere, of the crime of robbery, burglary, burglary with ex-
plosives, rape with force or violence, arson, murder, assault with intent
to commit murder, grand theft, bribery of a public official, perjury, suborna-
tion of perjury, train wrecking, feloniously receiving stolen goods, felonious
assault with a deadly weapon, extortion, kidnaping, mayhem, escape from
a state prison, rape or fornication or sodomy or carnal abuse of a child
under the age of 14 years, or any act punishable under Section 288 of this
code, conspiracy to commit any one or more of the aforementioned felonies,
shall be adjudged an habitual criminal and shall be punished by imprison-
ment in the state prison for life;
(c) Provided, however, that in exceptional cases, at any time not later
than 60 days after the actual commencement of imprisonment the court
may, in its discretion, provide that the defendant is not an habitual criminal,
and in such case the defendant shall not be subject to the provisions of
this section or of Sections 3047 and 3048 of this code;
(d) Nothing in this section shall abrogate or affect the punishment by
death in any and all crimes now or hereafter punishable by death. (Added
Stats. 1923, c. 111, p. 237, 1. As amended Stats. 1927, c. 634, p. 1066, 1;
Stats. 1931, c. 482, p. 1052, 1; Stats. 1935, c. 602, p. 1699, 1; Stats. 1939,
c. 198, p. 1443, 1; Stats. 1941, c. 106, p. 1082, 10; Stats. 1945, c. 934,
p. 1747, 1; Stats. 1950, 1st. Ex. Sess., c. 28, p. 470, 1.)
3 People V. Richardson, 74 Cal. App. 2d 528, 169 P.2d 44 (1946).
4 in re McVickers, 29 Cal. 2d 264, 176 P.2d 40 (1946). See also, People V.
Dunlop, 102 Cal. App. 2d 314, 227 P.2d 281 (1951); People V. DiMichele, 149 Cal.
App. 2d 277, 308 P.2d 365 (1957).
5 People v. Dunlop, 102 Cal. App. 2d 314, 227 P.2d 281 (1951).
OPeople v. Ebner, 64 Cal. 2d 297, 411 P.2d 578, 49 Cal. Rptr. 690 (1966).
7 People v. Morton, 41 Cal. 2d 536, 261 P.2d 523 (1953).
No. 4] HABITUAL CRIMINAL – COMPARATIVE STUDY 661
ponding California crime.” Pleas of guilty are convictions for the
purposes of Ssection 644.1 The allegations of prior convictions must
be responded to by the defendant’ 0 and must be proved by the
people with competent evidence.” The pardon of a prior felony does
not obliterate the offense for purposes of the habitual criminal act,
unless the pardon was expressly granted on the basis that the defend-
ant was not guilty of the prior offense.12
The State need not allege that the defendant has served separate
terms of imprisonment if they are proved at the trial, 3 though a
term may count toward a Section 644 determination, if it was only
partially served by the defendant.’ 4 If a man is convicted of a crime
while on parole from a previous conviction, the time served prior
to parole will count as a separate term.’ 5 Section 644 requires that
the prior terms of imprisonment be served in a state prison or fed-
eral penal institution. For California confinement, not only are state
prisons included, but also the State Medical Correctional Institution 16
and the State Vocational Institution, Deuel.’ 7 For terms served in
states other than California, the character of the institution, its
inmates, and the proceedings leading up to confinement will be
examined by the court to determine the character of the institution. 8
Since the statute requires that the defendant be shown to have served
a term under the prior conviction, convictions followed by probation
will not satisfy the statute.’ 9 Section 644 is not applicable to juveniles
committed to the California Youth Authority as a result of a ward-
ship proceeding in juvenile court.20
Section 644(c) provides that sixty days after the commencement
of sentence which resulted from a determination of habitual crim-
inality, the court may, upon proper motion, determine that the
prisoner is not an habitual criminal for the purpose of determining
8 Cal. Pen. Code 668.
9People v. Ebner, 64 Cal. 2d 297, 411 P.2d 578, 49 Cal. Rptr. 690 (1966).
‘OPeople v. King, 64 Cal. 338, 30 Pac. 1028 (1883).
“People V. Bryson, 172 Cal. App. 2d 536, 342 P.2d 274 (1959).
12Cal. Pen. Code 3045.
13In re Ponce, 65 A.C. 375, 54 Cal. Rptr. 752 (1966).
14People v. Keilly, 54 Cal. App. 2d 764, 129 P.2d 939 (1942); 1 Ops. Cal.
Atty. Gen. 516 (1943).
15 Ex parte Brady, 5 Cal. 2d 224, 53 P.2d 945 (1936).
1 Cal. Pen. Code 6127.
17 Cal. Pen. Code 2037.
‘sEx parte Locaric, 71 Cal. App. 2d 144, 162 P.2d 313 (1945).
19 In re Brady, 5 Cal. 2d 224, 53 P.2d 945 (1936).
2 0 In re Smith, 64 A.C. 437, 412 P.2d 804, 50 Cal. Rptr. 460 (1966). Cal. Welf.
& Inst. Code 1755.5.
McGILL LAW JOURNAL
[Vol. 13
parole. 21 The refusal of the court to rule that the man is not an
habitual criminal is appealable. 22 A successful appeal on the ground
that the evidence did not support a finding of prior convictions may
result in a remand to try only the issue of priors.23 Use of prior
convictions to establish habitual criminality or to enhance punishment
may be attacked for lack of representation by counsel in the prior
proceedings. 24
The California Supreme Court has held, in a case in which the
priors were not challenged on the basis of denial of the right to
counsel, that habeas corpus may be used to challenge adjudication
of habitual criminality even after the time for appeal has expired. 25
A person convicted as an habitual criminal under section 644
is subject to an increased minimum as well as a maximum term
under California’s indeterminate sentence
is expressly
provided that parole may not be granted until the increased minimum
is served. The minima currently provided are 9 years for convicts
with two priors and 12 years for those with three priors.2 7
law. 26 It
The number of persons who have been adjudicated habitual crim-
inals in California does not constitute a very sizeable group. As of
December 31, 1966, 103 male prisoners were serving time in state
prisons as habitual offenders, with 99 on parole.28 Habitual criminals
are generally handled in the same manner as other long-term prisoners
by the California Department of Corrections. When an habitual
criminal’s case is reviewed for parole, he is dealt with as an individual
with no special consequences attached to his status.2 9 The number
of persons adjudged habitual criminals has decreased in past years.30
21 Cal. Pen. Code 644(c) ; In re Ponce, 65 A.C. 375, 54 Cal. Rptr. 752 (1966).
2 2 People V. Stein, 31 Cal. 2d 630, 191 P.2d 409 (1948).
2 3 People V. Morton, 41 Cal. 2d 536, 261 P.2d 523 (1953).
2 4 People v. Espinoza, 241 Cal. App. 2d 718, 50 Cal. Rptr. 879 (1966).
2 5 In re McVickers, 29 Cal. 2d 264, 176 P.2d 40 (1946).
2 0 Cal. Pen. Code 1168.
27 Cal. Pen. Code 3047.5, 3048.5.
2
8 Conversation with Miss Vita Ryan, Statistician, California Department of
Corrections, Sacramento, March 27, 1967. The woman habitual criminal is very
rare; as of December 31, 1965, only one woman habitual criminal has been
received by the Dept. since 1959. Male habitual criminals presently comprise
0.05% of the male inmate felon population of California.
29 Ibid.
So Reception of habitual criminals by the Department of Corrections (source:
conversation with Miss Vita Ryan, of the Department of Corrections, March
27, 1967): 1950-54, 18 men; 1955-59, 20 men; 1960-65, 9 men.
No. 4] HABITUAL CRIMINAL – COMPARATIVE STUDY 663
The Law of Recidivism in Texas
W. Royal Furgeson
Recidivist statutes in Texas are designed generally to deter an
offender from further participation in criminal activities.1 Texas
prosecutors sometimes employ these statutes strictly to provide for
the specific enhancement of punishment. 2 However, since the oper-
ation of the criminal justice system depends upon the bargaining
process to insure that the court dockets do not become hopelessly
clogged, 3 prosecutors more often use the habitual offender laws as
a bargaining tool to strengthen their position in negotiations with
defense attorneys on the plea and the sentence.4
Although the types of recidivist statutes in Texas are quite
diverse, for purpose of analysis they can be divided into four broad
Associate editor of the Texas Law Review, University of Texas.
1Comment, 36 Texas L. Rev. 63, 69 (1957).
2 If the state seeks to enhance the penalty under a recidivist statute, it must
allege the prior conviction in the accusatory pleading and then prove the prior
conviction at trial. Armendariz V. State, 163 Tex. Crim. 515, 294 S.W.2d 98 (1956).
Such a burden gives some balance to the bargaining positions of the prosecutor and
the defense counsel. See note 4 infra. Before the 1966 revision of the Texas Code
of Criminal Procedure, the allegation and the proof of a prior conviction were
heard by the jury before determining the verdict and sentence. Although this
practice has been held permissible in light of the requirements of due process,
Spencer v. State, 87 Sup. Ct. 648 (1967), the Code of Criminal Procedure now
provides that if the jury is to render the sentence, prior convictions may only
be introduced in a separate hearing after the verdict. Tex. Code Crim. P. Ann.
art. 36.01 (1966). However, the jury might be informed of prior convictions
before the verdict, when they must be alleged and proved to establish the juris-
diction of the district court. This is so in those offenses which are made felonies
only by prior convictions. See note 15, infra, and accompanying text.
3 Interview with William F. Alexander, Assistant District Attorney for Dallas
County, in Dallas, Texas, July 27, 1966; Interview with Neil McKay, Assistant
District Attorney for Harris County, in Houston, Texas, August 15, 1966. See
Newman, Conviction: The Determination of Guilt or Innocence Without Trial,
(1966) p. 4.
4 Bargaining in this area is somewhat predictable. If a second offender (non-
capital) has a prior conviction that can be used to enhance his penalty, the
prosecutor will usually recommend to the court a sentence equivalent to half
the maximum term in exchange for a plea of guilty. If a third offender (non-
capital) has two prior convictions that can be used to enhance his penalty, the
prosecutor will usually recommend to the court a sentence equivalent to the
maximum term in exchange for a plea of guilty. Interview with Frank J.
Maloney, in Austin, Texas, March 11, 1967.
McGILL LAW JOURNAL
[Vol. 13
categories. The most widely utilized habitual offender laws are those
of general applicability. Under Article 61 of the Penal Code, an of-
fender convicted a second time for the same misdemeanor is to have
his punishment doubled, while one convicted three or more times is
to have his punishment quadrupled.5 Under Article 62, an offender
convicted a second time for a non-capital felony which is at least
similar to the first offense is to receive the maximum penalty set for
the felony 6 while, under Article 63, one convicted three or more times
for a felony less than capital is to receive a sentence of life imprison-
ment.7 Under Article 64, an offender convicted a second time for a
capital felony is to receive, as a minimum, a sentence of life imprison-
ment.8 Interpretation of these four articles has been rather restrictive.
For example, a prior conviction which has been employed to enhance
punishment under the “second offender” provisions of Articles 61
and 62 cannot be employed again to enhance punishment under those
same provisions 9 even though it can be employed again to enhance
punishment under the “third or subsequent offender” provisions of
Articles 61 and 63.10 Furthermore, Article 62 cannot be used to
enhance punishment in the open-ended crimes,11 i.e., those which
have only a minimum sentence. 12 Also, if this policy of restrictive
5 Tex. Pen. Code Ann. art. 61 (1953) reads: If it be shown on the trial of a
misdemeanor that the defendant has been once before convicted of the same
offense, he shall on a second conviction receive double the punishment’prescribed
for such offense in ordinary cases, and upon a third or any subsequent conviction
for the same offense, the punishment shall be increased so as not to exceed
four times the penalty in ordinary cases.
6 Tex. Pen. Code Ann. art. 62 (1953) reads: If it be shown on the trial of
a felony less than capital that the defendant has been before convicted of the
same offense, or one of the same nature, the punishment on such second or
other subsequent conviction shall be the highest which is affixed to the com-
mission of such offenses in ordinary cases.
7 Tex. Pen. Code Ann. art. 63 (1953) reads: Whoever shall have been three
times convicted of a felony less than capital shall on such third conviction be
imprisoned for life in the penitentiary.
8 Tex. Pen. Code Ann. art. 64 (1953) reads: A person convicted a second time
of any offense to which the penalty of death is affixed as an alternate punish-
ment shall not receive on such second conviction a less punishment than im-
prisonment for life in the penitentiary.
9 Ex parte Loggins, 167 Tex. Crim. 450, 321 S.W.2d 319 (1959); Kinney v.
State, 45 Tex. Crim. 500, 79 S.W. 570 (1904).
1OMayo v. State, 166 Tex. Crim. 470, 314 S.W.2d 837 (1957).
“Ex parte Davis, No. 39, 935, –
12An example of an open-ended crime is assault with intent to rape which
carries a penalty of confinement “for any term of years not less than two.” Tex.
Pen. Code Ann. art. 1162 (1961).
(Tex. Crim. App. 1967).
S.W.2d –
No. 4] HABITUAL CRIMINAL – COMPARATIVE STUDY 665
interpretation continues, Article 64 might not be applicable to prior
convictions where the state failed to seek the death penalty.’3
Application of the other three categories of recidivist statutes is
not difficult. One type relates to specific crimes and, for a subsequent
conviction for the same offense, either increases the penalty or
elevates the classification from misdemeanor to felony. For instance,
the sentence under the narcotic drug act for a first conviction is
from two years to life imprisonment while the sentence for a second
conviction is from ten years to life imprisonment.14 On the other
hand, the sentence under the statute prohibiting driving while in-
toxicated for a first conviction is classified as a misdemeanor while
the sentence for a second conviction is classified as a felonyY Another
type of recidivist statute places certain disabilities on one formerly
convicted of a crime. For example, if an offender has been convicted
of a felony involving the use of firearms, any subsequent possession
of a firearm is a felony offense.10 The final group of recidivist
statutes are statute crimes involving habitual conduct. A bookmaker,
for example, is subject to criminal sanctions only after he has com-
mited three acts which are prohibited under the bookmaking statute. 7
In conclusion, the habitual offender laws in Texas focus strictly
on the number of offenses rather than the offender in the enhance-
ment of punishment. Unlike the comparable provisions of the Model
Penal Code,’ s the court is given no discretion to balance other relevant
sentencing considerations with the prior convictions and is conse-
quently prevented, at times, from rendering a desirable and rational
sentence.
13 Under the 1966 revision of the Texas Code of Criminal Procedure, unless
the state formally declares its intention to seek the death penalty fifteen days
prior to trial a “capital” crime is treated like any other felony and the death
sentence may not be imposed. See Onion, Special Commentary, 1 Tex. Code Crim.
P. Ann. 79 (1,966). See also Tex. Code Crim. P. Ann. art. 1.14 (1966).
14 Tex. Pen. Code Ann. art. 725b (1953). For other examples of this type of
(seining in salt water);
recidivists law see Tex. Pen. Code Ann. art. 945 (1961)
Tex. Pen. Code Ann. art. 1426a (1953)
i5 Tex. Pen. Code Ann. art. 802b (1953). For other examples of this type of
(child or wife
(sale of horsemeat for human
(foot and mouth
recidivist law see Tex. Pen. Code Ann. art. 602a (Supp. 1966)
desertion); Tex. Pen. Code Ann. art. 719e (1961)
consumption); Tea. Pen. Code Ann. art. 1525f, 3
disease quarantine).
16 Tex. Pen. Code Ann. art. 489c (1957). For another example of this type of
(stealing cotton).
(1953)
recidivist law see Tex. Const. art. I, lla (bail).
17 Tex. Pen. Code Ann. art. 652a, 2 (1953). For other examples of this type
of recidivist law see Tex. Pen. Code Ann. art. 300 (1953)
(habitual truant);
Tex. Pen. Code Ann. art. 607 (1953) (vagrancy); Tex. Pen. Code Ann. art. 695
(1961)
(nuisances).
18 See Model Penal Code 7.03 (P.O.D. 1962).
McGILL LAW JOURNAL
(Vol. 13
La recidive en droit franais
Christiane Dangeard *
En droit p6nal frangais, l’expression <
precis. Est << rdcidiviste >>, celui qui, lorsqu’il commet une seconde
infraction, a d6jb 6t condamnd d~finitivement pour la premiere.
Dans notre l6gislation, l’tat de r6cidive comprend donc deux termes:
-une
condamnation d6finitive pour une premibre infraction,
seconde infraction ind6pendante de la premiere.
-une
Avant d’examiner en detail ces deux 6l6ments rappelons qu’en
vertu du principe de la l6galit6 des d6lits et des peines (nullum
crimen, nulla poena sine lege),1 le Code p6nal a express6ment pr~vu
tous les cas de r6cidive. On distingue deux sortes de r6cidives: ]a
r~cidive cause d’aggravation des peines, diff6rente selon qu’il s’agit
de ]a r~cidive criminelle, de la r6cidive correctionnelle ou de la r~ci-
dive de contravention, et la r6cidive cause de rel6gation (loi de 1885).
Examinons maintenant:
I) Les conditions g6n~rales de la r~cidive punissable
II) La r~cidive cause d’aggravation des peines
la r~cidive criminelle
la r~cidive correctionnelle
A –
B –
C -la
r~cidive de contravention de police
III) La r~cidive cause de la rel6gation
I- Los conditions g6nrales de la r~cidive punissable
Pour qu’il y ait r6cidive punissable il faut qu’il y ait:
A- Une premiere condamnation p6nale d6finitive (non suscep-
tible de voies de recours). Cette condamnation doit avoir 6t6 pro-
nonc~e par un tribunal frangais.
Ainsi une infraction qui a abouti A un acquittement, une mesure
de r66ducation A ‘6gard d’un mineur (ce n’est pas une condamna-
tion), ou une condamnation prononc6e par un tribunal 6tranger ne
constituent pas le premier terme de la r6cidive.
Assistante A la Facult6 de Droit de Paris.
1 Ce principe a
t6 consacr6 par le Code pdnal dont l’article 4 dispose: 4 nulle
contravention, nul d~lit, nul crime, ne peuvent 6tre punis de peines qui n’6taient
pas prononees par la loi avant qu’ils ne fussent commis :.
No. 4] HABITUAL CRIMINAL – COMPARATIVE STUDY 667
B-Il
faut une deuxi~me infraction commise apr~s que
la
condamnation concernant la premiere soit devenue dfinitive.
C-Il faut enfin qu’il y ait une certaine correspondance entre
ces deux premiers termes:
1) en ce qui concerne la nature de l’infraction qui doit pr6senter
une certaine similitude, sinon il n’y aurait pas de r6cidive.
2) en ce qui concerne le ddlai qui s~pare les deux termes de la
r~cidive. Ce d6lai varie selon les diff6rentes hypotheses de r~cidive.
I1 devient de plus en plus court A mesure qu’il s’agit d’infractions
moins graves et peut 6tre perp6tuel pour les infractions les plus
graves.
II- La r~cidive cause d’aggravation des peines
A – La r cidive eriminelle
C’est celle qui a pour premier terme une condamnation h une
peine criminelle et pour second terme un crime qui donne lieu A
l’application d’une peine criminelle.
Cette r~cidive est g~n6rale (les deux crimes peuvent atre totale-
ment diff~rents) et perp~tuelle.
Effet de la r6cidive criminelle: elle permet d’augmenter la dur~e
des peines pr~vues pour les d6linquants primaires sauf s’il s’agit
d’une peine perp~tuelle qui ne peut 6tre aggrav~e (en peine de
mort, par exemple).
B – La r~cidive correctionnelle
Ce peut Atre ou bien:
–
celle qui a pour premier terme une condamnation A une peine
criminelle ou une condamnation A plus d’un an d’emprisonnement
pour crime, et pour second terme une infraction punie d’une peine
d’emprisonnement.
–
celle qui a pour premier terme une condamnation A plus d’un
an d’emprisonnement pour d6lit et pour second terme une infraction
punie d’une peine d’emprisonnement (grande rgcidive correction-
nelle).
–
celle qui a pour premier terme une condamnation
it moins
d’un an d’emprisonnement pour d~lit et pour second terme un d6lit
puni d’une peine d’emprisonnement (petite rdcidive correctionnelle).
Cette r~cidive est tant6t g6ngrale, tant6t spdciale (il doit s’agir
de deux infractions A une m~me disposition) et toujours temporaire
(la rechute doit avoir lieu dans le d6lai de 5 ans).
McGILL LAW JOURNAL
[Vol. 13
Effet de la r6cidive correctionnelle: la peine applicable sera plus
6lev~e. Ou bien elle aura pour minimum et pour maximum le double
de la peine normale, ou bien elle sera le double de la peine effecti-
vement prononce pour ]a premiere infraction.
C- La r~cidive de contravention de police
La rgcidive de contravention ob6it A des r~gles particulihres:
.1) elle est temporaire (la rechute doit avoir lieu dans le dlai
d’un an).
2) elle est spiciale
3) elle est locale (car ]a preuve de la r6cidive ne resultera que
de la consultation des archives du tribunal de police).
Ces trois sortes de r&cidive (criminelle, correctionnelle ou de
contravention) peuvent naturellement se combiner avec les circons-
tances att6nuantes, les circonstances aggravantes et les excuses
l6gales, si bien que le juge conserve une tr~s grande libert6 d’appr&-
clation pour fixer la dur~e de la peine.
I – La r~cidive cause de rel6gation
Pour les d6linquants incorrigibles qui devenaient un fl6au en
France la loi de 1885 a institu6 une peine 6liminatoire spfciale: la
relegation. I1 s’agissait A l’6poque d’61oigner de France les individus
dangereux; ceux-ci 6taient done tout simplement 6loignes dans une
colonie pour le restant de leur vie et ils y vivaient dans un 6tat de
libert6 A peu pros complete. Mais
lAcher dans une colonie ces
<4rel6gu6s>> et les y laisser sans ressources ni travail C’6tait les en-
courager A commettre de nouveaux crimes. Aussi tr~s rapidement
la rel6gation se transforma-t-elle en un internement A vie dans les
p6nitenciers coloniaux.
Des protestations s’6lev~rent contre cette mesure que certains
trouvaient trop rigoureuse et l’on cessa d’envoyer les rel6gu6s aux
colonies das 1936. Depuis, nos p6nitenciers coloniaux ont 6t6 fermfs
et cela a compl~tement chang6 le visage de ]a relegation:
-A
l’origine mesure d’61imination, elle est devenue une mesure
de traitement (en France).
-A
l’origine mesure obligatoire, elle est devenue facultative
depuis 1954.
Examinons successivement: les cas de rel6gation, comment s’ex6-
cute actuellement cette mesure, et ce que vaut cette mesure.
No. 4] HABITUAL CRIMINAL – COMPARATIVE STUDY 669
A – Cas de relgation
I1 faut:
– ou bien deux condamnations A des peines criminelles.
ou bien trois condamnations dont une est une peine criminelle.
–
ou bien quatre condamnations h des peines correctionnelles.
–
– ou bien sept condamnations dont un certain nombre contenues
aux paragraphes pr6c6dents.
Ces condamnations doivent 6tre intervenues dans un d~lai de 10
an non compris le temps pass6 en prison.
I1 s’agit d’une peine compl~mentaire qui s’ajoute A la peine
principale. La rel6gation n’est pas applicable aux femmes, aux mi-
neurs et aux vieillards. Enfin le Code de proc6dure p6nale recom-
mande au juge d’instruction de recourir A un examen m6dico-
psychologique pour essayer de savoir si le d~linquant pr6sente un
6tat dangereux incorrigible. La rel6gation 6tant en effet une peine
perp6tuelle il convient de s’entourer d’un certain nombre de garan-
ties avant de la prononcer; il est vrai qu’en pratique elle est souvent
rfduite A un certain laps de temps (pour rem~dier A l’encombre-
ment des prisons).
B – Exicution de la rel6gation
Elle comporte trois stades:
I) Premier stade: A l’expiration de la peine principale les rel6gu~s
sont dirig6s vers les centres de Saint-Martin de R6 et Mauzac. Mais
le regime de ces 6tablissements est si corrupteur que l’on n’y envoie
m~me pas les condamn6s qui ont b6n6fici6 pendant l’ex&cution de
leur peine principale d’un regime progressif appliqu6 dans les mai-
sons centrales r~form~es.
II) Deuxi~me stade: c’est un stade d’6preuve au cours duquel
les rel~gu6s sont transf6rms dans un centre d’observation. Le s~jour
y dure de 6 A 9 mois pendant lequel les rel~gu6s subissent l’action
des 6ducateurs, de l’assistante sociale et d’un m~decin psychiatre.
Puis ils sont admis A <
places sous le r6gime de la semi-libert6.
III) Troisisme stade: –
ceux des rel6gu6s qui ont donn. satis-
faction au stade precedent peuvent obtenir leur lib6ration condi-
tionnelle. Celle-ci dure de 5 A 10 ans et pendant ce d~lai les conditions
pour la lib6ration conditionnelle peuvent 6tre adoucies ou aggra-
ves. Pass6 ce d6lai la revocation de la lib6ration conditionnelle n’est
plus possible.
McGILL LAW JOURNAL
[Vol. 13
–
ceux des rel6gu6s qui n’ont pas donn6 satisfaction au stade
pr6c6dent sont renvoy6s dans des 6tablissements sp6ciaux (Lure et
Gannat) oi l’on regoit les anti-sociaux les plus redoutables. Si la
conduite du rel6gud est satisfaisante il peut 6tre envoy6 A nouveau
dans un centre d’observation pour b~n6ficier d’une nouvelle chance
d’obtenir une liberation conditionnelle.
C – Apprgciation critique de la rel6gation
1 – L’Ancien Rigime: ]a rel6gation dans les colonies n’a jamais
eu aucun effet bienfaisant sur le condamn6, mais au point de vue
glimination cette formule a rendu d’importants service A la France
en 6loignant par milliers les malfaiteurs de profession.
2 – Le Nouveau R6gime: il est incontestablement meilleur que
le pr6c6dent en ce qui concerne l’amendement des rel~gu6s, et plus
conforme aux conceptions criminologiques et p6nitenciaires modernes.
Mais il en est tout diff~remment du point de vue de l’61imination
car chaque session dans un centre d’observation est A l’origine de
nouvelles infractions et certains regrettent la rel6gation Outre-Mer
au moins pour les malfaiteurs anti-sociaux.
Projet de r~forme
Le r6gime actuel de la rel6gation ne correspondant plus du tout
Asa conception originaire, un projet de r6forme est A l’6tude. Etant
donn6 que les r6cidivistes n’appartiennent pas tous A la m~me cat6-
gorie de d6linquants (alcooliques, caract6riels, anormaux mentaux
ou d6linquants professionnels),
il serait souhaitable de pr~voir un
6ventail de peines applicable aux modes d’ex6cutions tr6s divers plut~t
que la peine unique actuelle.
No. 4] HABITUAL CRIMINAL – COMPARATIVE STUDY 671
Germany and the Habitual Criminal
Dr. Hermann Blei *
Criminal law in Germany governing the consequences of a
criminal offence is founded on the dual track system. Side by side
with retributive punishment based on the guilt of the accused, the
law lays down specific “measures of safety and rehabilitation” which
may be ordered by the Court to prevent the occurrence of a danger
manifested by the act committed by the accused. Art. 20(a) of the
Criminal Code contains provisions for an aggravation of the sentence
(infra 2) in the case of a dangerous habitual criminal (infra 1) and
Art. 42 (e) empowers the Court to order protective custody (infra 3)
as a measure of safety and rehabilitation.
(1) The term “dangerous habitual criminal,” even if variously
defined in legal theory and case law, essentially refers to a person
who, as a result of a rooted propensity, has repeatedly committed
crimes, and from whom, at the time of sentence, it may reasonably
be expected that, because of this propensity, he will, in future, also
commit offences likely to cause serious breaches of the peace. This
judgment must be based on an overall examination of the record of
the accused. In theory, three convictions are sufficient. However in
practice, the courts only tend to consider a person a dangerous
habitual criminal after numerous convictions. The number of offences
which finally condemn a person as a dangerous habitual criminal
would on an average be estimated as being nearer ten than five.
(2) If the accused is given an aggravated sentence on being con-
demned as a dangerous habitual criminal, this implies confinement to a
penitentiary, which is the gravest form of punishment known to
German criminal law. Maximum periods will depend on whether or
not the offence committed carries with it a penitentiary term or
not. The formal requirement, i.e. either two previous convictions
carrying specific minimum sentences or a total of three, are laid down
in Art. 20 (a), sec. 1 and 2. These need not be more accurately described
here as (c.f. supra, 1) a conviction as a dangerous habitual criminal
ought in practice hardly to arise if only the minimum provisions
are fulfilled. The provision has been criticized, and rightly so, by
commentators as it makes imposition or otherwise of an aggravated
sentence dependent not on the guilt but on dangerousness of the
accused. However, the severety which in theory is imposed by law
is mitigated by the fact that in practice a person is only sentenced
* Professor of Law, Juristische Fakultat, Freie Universitat – Berlin.
McGILL LAW JOURNAL
tVol. 13
as a dangerous habitual criminal if, for the majority of convictions,
he was served with sentences which bore out in full the aspect of guilt.
(3) On conviction as a dangerous habitual criminal the Court
may, pursuant to Art. 42(e), order protective custody if it is in the
interest of public safety. This will be done if, in the period after
serving the sentence, the prognosis referred to in 2 supra indicates
that the individual, because of his propensity, will still be inclined
to crimes which would represent a serious breach of the peace. If such
circumstances exist, the Court shall order protective custody. This
would begin to run after the sentence has been served and will last
as long as it is necessary to accomplish its purpose (Art. 42(f) sec.
1, and 3). However, the Court shall determine every three years
(but may do so at any time) whether the purpose of the confinement
has been accomplished. The Court may then order a discharge which
would only amount to a conditional suspension of the confinement.
This may be coupled with the imposition of special conditions and
the suspension shall be revoked if the discharged person evidenceg
by his conduct while he is at large that the object of the measure
requires his renewed confinement (Art. 42(h) sec. 1).
Protective custody, insofar as its execution is concerned, is also
a matter of some dispute. As it is not a punishment, but rather
an imposition of deprivation of liberty on the individual in the com-
mon interest, a clear distinction must be drawn between its imposition
and that of confinement in a penitentiary. However, this is not the
case; all the more so because, up to the present time, there are no
special institutions with executive authority which could undertake
this particular task. Moreover, this may be one of the reasons why
courts are reluctant to condemn an accused as a dangerous habitual
criminal.
Not much can be said with certainty at the moment on the provision
in a new Criminal Code which is now pending. The draft Code of 1962
is the subject of parliamentary discussion and expert advice, and, as
the matter now stands, it is already certain that the new Code will be
appreciably different from the draft.
1. The 1962 draft drops -the special aggravation of sentence for
dangerous habitual criminals. However, they would be dealt with
under the general provision granting severer sentences for repeated
recidivism (Art. 61). Protective custody as a measure of rehabilitation
and safety shall be kept, (Art. 85) with the provision that at
least one offence must have been committed after the accused had
reached his 25th year. (This in point of actual fact was the practice
in law and will continue to be.) Side by side with protective custody,
the draft introduces a new measure, that of preventive detention
(Art. 86) against young offenders, i.e. those committing themselves
No. 4] HABITUAL CRIMINAL – COMPARATIVE STUDY 673
before ending their 27th year. Among the requirements shall be that
an overall evaluation of the offender and his past record indicate
the danger that he will develop criminal propensities.
2. An alternative draft drawn up in 1966 by 14 German and
Swiss teachers of Criminal law has attracted considerable attention.
This ought to influence future legislation. It abandons the rather
controversial preventive detention and reduces considerably the
provision for protective custody contained in the present law and
in the 1962 draft.
Australian Habitual Offender Legislation
Duncan Chappell *
Legislation relating to habitual offenders exists in each Australian
State. While the general aim of this legislation is to provide the
courts with power to sentence persistent criminals to periods of
preventive detention, the methodg adopted to achieve this aim vary
somewhat from State to State.
In New South Wales, the Habitual Criminals Act of 1957 grants
power to the courts to sentence on habitual offender to a term of
preventive detention of not less than five years nor more than
fourteen years. Before an offender becomes eligible for such a sen-
tence, he must be of or above the age of 25 years and have, on at
least two occasions, previously served separate terms of imprison-
ment for offences dealt with on indictment. An offender sentenced
to a term of preventive detention may be released on licence after
serving two-thirds of that sentence.
Persistent criminals in Victoria may be sentenced, under the
provisions of the Crimes Act of 1958, to a maximum term of ten
years preventive detention. Where any such sentence is passed, the
courts are also required to fix a minimum term during which the
offender ig not eligible to be released on parole. To qualify as a
persistent criminal in Victoria, an offender must be at least 25 years
of age, stand convicted of an offence punishable with imprisonment
for a term of two years or more, and have been so convicted on
at least two previous occasions since the age of 17 years.
* B.A., LL.B. (Tas.), Ph.D. (Cantab.), Lecturer in Law within the Institute
of Criminology at the Sydney University Law School.
McGILL LAW JOURNAL
[Vol. 13
The qualifications for and period of detention of persistent crim-
inals are not as narrowly defined in the habitual offender legislation
of the other States. In South Australia, the Criminal Law Consolid-
ation Act of 1935-1952 permits a person, declared by a court to be
an habitual offender, to be detained for an indefinite period at Her
Majesty’s pleasure. While no age limit is mentioned by the Act,
before such a declaration can be made, an offender must stand
convicted on information of an offence falling within a number of
specified classes of crime (which include most types of offence against
property and the person), and have been previously so convicted on
at least three occasions (or two occasions if it is a sexual offence,
wounding, poisoning or abortion) of an offence of the same class.
When an habitual offender is released from preventive detention, he
remains on licence for a further period of three years.
With the exception of the requirement that any previous con-
viction must be for an offence of the same class, the provisions of
the Queensland Criminal Code dealing with habitual offenders are
substantially the same as those contained in the South Australia
Criminal Law Consolidation Act. In Western Australia, a person may,
under the provisions of the Criminal Code of that State, be declared
by a court to be an habitual offender if, being aged 18 years upwards,
he stands convicted of any indictable offence not punishable by death,
and has been previously so convicted on at least two occasions.
Habitual offenders are detained during the Governor’s pleasure in
a reformatory prison. When released, offenders remain on licence
for a further period of two years.
The Tasmanian Criminal Code provisions dealing with persistent
criminals are, in substance, the game as those contained in the Western
Australia Criminal Code.
While Australian courts undoubtedly possess sweeping powers to
sentence persistent criminals to long periods of preventive detention,
these powers appear in practice to be seldom exercised. While com-
parative statistics are not available to show the number of persons
sentenced to preventive detention in each State, it seems that only
three States (New South Wales, Tasmania and South Australia) still
use this form of sentence, and one of these States
(New South
Wales) uses it very infrequently. It
is known that sentences of
preventive detention, and particularly those which are completely
indeterminate, are not regarded with favour by Australian Prison
Administrators. Their views have apparently
judicial
opinion on the subject. It now remains to be seen whether members
of State legislatures can be persuaded that there is a need to review
Australian habitual offender legislation in the light of more advanced
and humane methods of dealing with persistent criminals.
influenced
No. 4] HABITUAL CRIMINAL – COMPARATIVE STUDY 675
A Note on the Law and Practice Relating to
Habitual Criminals in India
N. R. Madhava Menon *
As in every other country, recidivism is an important factor
in the incidence of crime in India. In spite of several preventive
and deterrent provisions in the Law,’ the number of habitual criminals
continued to increase posing difficult problems in the matter of
prison administration and prevention of crime. Out of 475,059
convicts admitted to Indian jails in 1961, as many as 26,705 were
prisoners with previous convictions.2
Definition and Classifications:
While a previous conviction is a necessary condition for classi-
fication as a ‘habitual’ under s. 75 Indian Penal Code (I.P.C.),’ for
purposes of jail administration, a wider definition is given in Jail
Manuals and Prison Acts of the various States in India.4 According
to them the following persons shall be liable to be classified as
“habitual criminals”, namely: –
i) Any person convicted of an offence punishable under Chapter XII, XVI,
XVII or XVIII of the I.P.C.5 whose previous conviction or convic-
tions taken by themselves, or with the facts of the present case, show
that he habitually commits an offence or offences punishable under
any or all of those chapters.
M.A., B.Sc., LL.M., Lecturer, Faculty of Law, Delhi University.
1The important among them are: S. 75 Indian Penal Code (I.P.C.), s. 110 and
S. 565 Criminal Procedure Code (Cr. P.C.); Habitual Offenders Act and Habitual
Offenders (Reform & Control) Act. (State enactments).
2 Statistical Abstract of the Indian Union (1965), Central Statistical Organiza-
tion, Government of India, s. 33, Table 229.
3 However, the term “previous conviction” in this context would include an
order to provide security under s. 118 read with s. 110 Cr. P.C.
4For example, the Bombay Jail Manual (1955), The Manual for the Super-
intendence and Management of Jails in the Punjab (1963) etc.
5The relevant Chapters of the Indian Penal Code discuss offences relating to
Coin and Govt. stamps (Chapter XII), Offences affecting the human body
(Chapter XVI) ; offences against property (Chapter XVII) and offences relating
to documents and to property marks (Chapter XVIII). The reason why persons
repeatedly convicted for other offences are excluded from the category of
‘habituals’ is that they are relatively minor offences not involving “such deprav-
ity of character as those punishable under the Chapters above specified” – Report
of the Indian Jails Committee,
(1919-20) Chapter VII.
McGILL LAW JOURNAL
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ii) Any person committed to or detained in prison under c. 123 (read with
s. 109. or s. 1,10) of the Criminal Procedure Code (Cr. P.C.). s
iii) Any person convicted of any of the offences specified in (i) above when
it appears from the facts of the case, even although no previous con-
viction has been proved, that he is by habit a member of a gang of
dacoits,7 or of thieves, s or a dealer in slaves o or in stolen property.10
iv) Any member of a Criminal Tribe” subject to the discretion of the local
also held the
Government concerned. The Jails Committee
view that members of Criminal Tribes are not necessarily to be taken
as “habituals”.
(1919-20)
The proper authority to classify convicts as ‘habituals’ is the
convicting court itself, and, on its failure to do so, the District
Magistrate.
Preventive Measures:
The Criminal Procedure Code provides for preventive measures
of two types against habitual offenders. Under s. 110, security
can be taken for their good behaviour, while under s. 565, they
can be ordered to be placed under police surveillance for a period
extending up to five years in the event of their conviction for certain
to deter and not to
offences. The object of such proceedings is
punish, and, as such, “a convict just released from jail is not, as
a rule, to be put upon security until there has been a fair opportunity
of judging whether the punishment he has already undergone is
not in itself a sufficient deterrent against relapse into evil courses.”
Under s. 110 proof of habitual misconduct will ordinarily justify
the conclusion that security is necessary, but the magistrate has a
discretion, and only in deserving cases would he order for security.
Besides the above two measures, there are other preventive and
remedial steps provided in legislation of different States. 12 Thus,
6 Sections 109 and 110 relate to the circumstances under which security for
good behaviour can be demanded from vagrants and suspected persons (s. 109)
and habitual offenders (s. 110) –
Section 123 prescribes the punishment for
failure to give security.
7 S. 400 I.P.C. makes “belonging to a gang of dacoits” an offence.
SS. 401 I.P.C. punishes for “belonging to a gang of thieves”.
9S. 371 I.P.C. punishes habitual dealing in slaves.
‘o S. 413 I.P.C. punishes those habitually dealing in stolen property.
11 Although a member of a Criminal Tribe is not necessarily a habitual offender,
the presence of about five million of them in the country obviously makes the
problem more complicated.
12 Under Art. 246 of the Indian Constitution read with item 4 of List II
(State List) and items 1 and 2 of List III (Concurrent List) Criminal Law and
Procedure is a Concurrent subject in which Parliament and State Legislatures
can legislate. Prison, reformatories, etc. are exclusively State subjects.
No. 4] HABITUAL CRIMINAL – COMPARATIVE STUDY 677
(Punjab) Act, 1918 provides
Restriction of Habitual Offenders
that an habitual offender may be restricted in his movements to a
certain area or required to report himself at times and places in
the manner prescribed in the Order. An order of restriction may
be passed in the same circumstances in which an order for security
for good behaviour may be passed. An order of restriction may be
passed in addition to an order for security for good behaviour. The
procedure to be followed in proceedings under this Act is substantially
the same as that in proceeding under s. 110 Cr. P.C. Under the
Bombay Habitual Offenders Act 1959, and the rules framed there-
under the State Government may, in lieu of an order of restriction
made against any person, make an order directing such person to be
placed in an industrial, agricultural or reformatory settlement
established by the Government for a period not exceeding the period
for which the order of restriction has been made. Again, the Punjab
Habitual Offenders (Control and Reform) Act of 1952 provides for
registration of habitual offenders and for their reformation. Similar
legislative measures have been adopted in other States of the Indian
Union with minor changes here and there.
The general judicial practice in dealing with habitual offenders
is to award a moderate sentence coupled with an order under s. 565
Cr. P.C. or an order of restriction under the Habitual Offenders
Act and avoid imposition of long terms of imprisonment. An order
of restriction is especially adopted in the case of habitual offenders
who are not in a position to furnish security and in whose case an
order for security under s. 110 Cr. P.C. would necessitate their
commitment to Jail.’ 3
Punitive Measures:
The neo-classical theory that the problem of recidivism could be
met by enhanced sentences finds its place in s. 75 of the I.P.C.
which reads:
(a) by a Court in India of an
75. Whoever, having been convicted, –
offence punishable under Chapter XII or Chapter XVII of this Code with
imprisonment of either description for a term of three years or upwards,
shall be guilty of any offence punishable under either of these Chapters
with like imprisonment for the like term, shall be subject, for every such
subsequent offence to imprisonment for life, or to imprisonment of either
description for a term which may extend to ten years.
This section, which has been sparingly used in administration
of Criminal Justice, imposes a liability to enhanced punishment on
‘3 Vide Rules and Orders of the Punjab High Court, Vol. III, Chapter 23.
McGILL LAW JOURNAL
[Vol. 13
the ground that the punishment undergone by the person had had
no effect in preventing a repetition of the crime. From the Judicial
interpretation of s. 75, the following formulation may be made:
i) Enhanced punishment not obligatory in every case of this description:
Ordinary cases of a petty nature should not be made the basis for enhanced
punishment, unless the nature, number and sequence of previous con-
victions and the sentences previously undergone clearly show the necessity
of enhanced punishment. The general principle to be borne in mind is
that s. 75 is meant to be used as deterrent only when the punishment
provided for the offence itself is considered to be inadequate in view of
the antecedents of the offender. Recourse should not be had to the
indicate a criminal habit or
section unless the previous convictions
instinct which needs to be checked by a punishment higher than that
provided for the offence.’ 4 Similarly, very old convictions do not neces-
sarily mean that the convict is a habitual criminal.15
ii) S. 75 does not apply to previous convictions for attempts to commit an
offence, not specially made offences in Chapter XII and XVII of the
Code.16
Following the recommendation of the Indian Jails Committee,
rules were framed whereby habitual criminals are
(1919-20)
segregated and confined in special jails or settlements as far as
possible. They are not generally employed as convict officers and
are liable to hard labour and strict prison discipline.
Experience has shown that by sending the habitual offender
to the prison for long periods or by keeping him under strict police
surveillance the problem cannot be solved. The jail sentence, the
attendant social stigma and ostracism, and the disastrous effects
of police supervision and surveillance put a released convict in a
state of total demoralisation in which the chances of his relapse into
evil ways are more than his adopting a law-abiding path. A progres-
sive, enlightened penal policy with emphasis on reformatory and
rehabilitative measures might go a long way in reducing the evil
of recidivism. The system of “Open Jails” now being tried in the
States of Rajastan, Uttar Pradesh and Kerala is said to be a remark-
able step in this direction.
14A.IR. 1937 Madras 231; A.I.R. 1947 Madras 386; 1965 Cr. L.J. 1235.
15 38 Cr. L.J. 484.
16 A.I.R. 1942 Madras 521.
No. 4] HABITUAL CRIMINAL – COMPARATIVE STUDY 679
Responsibility of Recidivists under the Penal Legislation
of the USSR and Union Republics
Reader I. M. Galperin **
1. Current penal legislation in the USSR imposes a higher degree
of responsibility on persons who repeat or recurrently commit a crime.
Under Article 34 of the Foundations of Penal Legislation in the
USSR and the Union Republics (1958),1 an aggravating circumstance
to be taken into account by courts when imposing sentence is “com-
mission of a crime by a person who has previously committed a crime
of any sort”. Classification of this -as an aggravating circumstance
is grounded on the fact that the criminal persists in his refusal to
submit to the requirements of the law.
The penal codes of the Union Republics cite a number of cases
where repeated or recurrent commission of crime is viewed as an
aggravating circumstance. Thus, for example, under Article 144 of
the Penal Code of the RSFSR, 2 theft of the personal property of
citizens, when committed by an individual for the first time and in
the absence of aggravating circumstances, is punishable by deprivation
of liberty for a period up to two years 3 or corrective labour for not
more than one year. Theft of personal property committed a second
time is punishable by deprivation of liberty for a period up to five
years.
Similarly, repetition of the offence is an aggravating circum-
stance in deliberate murder, brigandage, robbery, riotous behaviour
and a few other crimes.
2. Soviet penal legislation does not contain any specific provision
of general scope, establishing the responsibility of recidivists. How-
ever, in Article 23 of the Foundations of Penal Legislation in the
USSR and Union Republics, reference is made to the greater degree
* Translated from the original by Berlitz Schools of Languagues of Canada
Ltd.
** Senior Scientific Collaborator at the All-Union Institute of Research into
the Causes of Crime and Means of Crime Prevention.
1 Collected laws of the USSR and Decrees of the Presidium of the Supreme
Izvestiya Publishing House, Moscow, 1961,
Soviet of the USSR 1938-1961,
page 728.
2Penal Code of the RSFSR, Yuridicheskaya Literatura Publishing House,
Moscow, 1966, pages 51-52.
3Under Article 24 of the Penal Code of the RSFSR, the minimum period of
deprivation of liberty is three months.
McGILL LAW JOURNAL
[Vol. 13
of guilt of persons cited in a court decision as particularly dangerous
recidivists
(concerning the concept of a “particularly dangerous
recidivists”, see below).
At the same time, the enhanced responsibility of persons already
convicted of certain crimes, who repeat the same crimes, is establish-
ed in several articles in the special section of the penal codes of
the Union Republics. Article 130 of the Penal Code of the RSFSR,
for instance, enacts heavier penalties for slander on persons previously
convicted of this offence.
3. Article 23 of the Foundations of Penal Legislation in the USSR
and Union Republics provides that deprivation of liberty as a penalty
inflicted on a person convicted of crime by a court “is established
for a period not exceeding ten years, and –
for particularly grievous
crimes committed by particularly dangerous recidivistv in the cases
provided by the legislation of the USSR –
not exceeding fifteen
years.”
The provision contained in Article 23 of the Foundations of Penal
Legislation is not to be understood as meaning that a person recog-
nized by a court as a particularly dangerous recidivist may be
sentenced to deprivation of liberty for a longer period than that
sanctioned by the article of the penal law which the court finds
him guilty of violating. In contrast to the penal codes of certain
foreign States, which envisage the possibility of increasing a re-
cidivist’s sentence beyond the upper limit of the law, Soviet penal
legislation does not recognize the right of courts to impose a harsher
sentence on a particularly dangerous recidivist than the law provides.
Deprivation of liberty for a period of more than ten, but not more
than fifteen, years may be passed on a particularly dangerous re-
cidivist, if he is convicted under a penal law which provides for the
penalty of deprivation of liberty for a period in excess of ten years,
or where, under Article 36 of the Foundations of Penal Legislation,
he is sentenced for several previous convictions. However, even in
this case the maximum penalty cannot exceed fifteen years’ depriva-
tion of liberty.
The concept of a particularly dangerous recidivist has been
formulated, not in All-Union law –
the Foundations of Penal Leg-
islation in the USSR – but in the penal codes of the Union Republics. 4
According to Note 1 in Article 24 of the Penal Code of the RSFSR
and the relevant articles of the penal codes of other Union Republics,
4 It should be noted that views (which are shared by the author of these lines)
have been expressed in Soviet legal literature in favour of incorporating a single
definition of the particularly dangerous recidivist in All-Union penal legislation.
No. 4] HABITUAL CRIMINAL – COMPARATIVE STUDY 681
a criminal may be pronounced a particularly dangerous recidivist if
he has previous convictions for serious crimes such as, for instance,
particularly dangerous crimes against the State, intentional murder,
brigandage, infliction of grievous bodily injury, rape and others, and
has repeated any of these crimes. A criminal may also be pronounced
a particularly dangerous recidivist if he has two or three previous
convictions for other, relatively less serious, offences than the afore-
said, of which an exhaustive list is provided in the law,5 and repeats
any one of these crimes.
Finally, a person may be declared a particularly dangerous re-
cidivist who, while serving a sentence of deprivation of liberty at
his place of sentence, commits a deliberate crime.
It must be stressed that declaration of a criminal to be a particu-
larly dangerous recidivist at the time when the aforesaid combina-
tions of sentences for concrete crimes takes place, is a right, and
not an obligation, of the court.
In Note 1 to Article 24 of the Penal Code of the RSFSR and
the relevant articles of the penal codes of other Union Republics, it
is stated that “the court, in considering the question of declaring a
person a particularly dangerous recidivist, shall take into account
the nature and degree of public danger of the crime committed, the
character of the offender and the circumstances of the case”.
Declaration of a person to be particularly dangerous recidivist
may only be effected by a court at the time of pronouncing sentence.
Drawing the attention of courts to the need for a differentiated
approach to the question of pronouncing offenders particularly
dangerous recidivists, the Supreme Court of the USSR declared in
a Decree of the Plenum, dated July 3, 1963, that “courts must proceed
on the premise that in Law only malicious criminals who represent
a major danger to society and persistently refuse to accept the path
of correction, may be pronounced particularly dangerous recidivists”. 6
Declaration of a person to be a particularly dangerous recidivist
entails the following legal consequences:
1. Particularly dangerous recidivists serve their sentences in the
form of deprivation of liberty in a special-regime corrective labour
colony or prison (Article 23 of the Foundations of Penal Legislation
in the USSR and Union Republics, Article 2, clause (g) of the Decree
of the Plenum of the Supreme Court of the USSR, dated January
5 This group includes crimes such as theft, robbery, fraud, malicious hooli-
ganism, etc.
6 Collected Decrees of the Plenum of the Supreme Court of the USSR 1924-1963,
Izvestiya Publishing House, Moscow, 1964, page 175.
McGILL LAW JOURNAL
[Vol. 13
19, 1961, “Concerning the procedure to be followed by courts in
defining the type of corrective labour colony for persons condemned
to deprivation of liberty.”).7 The regime under which sentences are
served in a special-regime corrective labour colony is more severe
than in the corrective labour colonies in which other prisoners
undergo deprivation of liberty.
Under Article 23 of the Foundations of Penal Legislation partic-
ularly dangerous recidivists who have served not less than half their
prison sentences, provided their behaviour is exemplary, may have
their imprisonment commuted by order of the court to confinement in
the colony. Under Article 6 of the above-mentioned Decree of the
Plenum of the Supreme Court of the USSR, dated July 19, 1961,
particularly, dangerous recidivists who have completed nos less than
half their sentence in special-regime colonies, may, subject to exem-
plary behaviour and a conscientious attitude to their work, be trans-
ferred by decision of the court to strict-regime corrective labour
colonies where the conditions are milder in comparison to the special-
regime colonies.
2. Particularly dangerous recidivists do not qualify for remission
of sentence ahead of time or substitution of a milder sentence.
(Article 44 of the Foundations of Penal Legislation in the USSR
and Union Republics).
3. Following release from their place of sentence, persons pro-
nounced particularly dangerous recidivists are subject to adminis-
trative supervision, which is exercised for the purpose of observing
their conduct, forestalling criminal activity on their part and exerting
the necessary educative influence on them. This supervision is exercis-
ed by organs of the Milita pursuant to, and in conformity with, the
“Decree concerning the administrative supervision of persons from
places of deprivation of liberty by organs of the Militia” endorsed
by decree of the Presidium of the Supreme Soviet of the USSR,
dated July 26, 1966.8
7 Idem, page 214.
8 Bulletin of the Supreme Soviet No. 30
(1324) of July 27, 1966, Publishing
House of the Supreme Soviet of the USSR, Moscow.
