The reform of the Penal Code regarding multiple recidivism (Organic Law 1/2026): between necessity and an excessive punitive response
The legislative amendment introduces a significant change in the approach to recidivism within the Spanish criminal justice system. Traditionally, recidivism had been treated as an aggravating circumstance, but its practical impact, especially in relation to minor offenses, was limited. With the new regulation, multiple recidivism takes on a more prominent role, allowing repeated offenses to carry significantly harsher criminal penalties. In short, this represents a clear commitment to intensifying the punitive response against those who make crime a habitual practice.
This evolution is particularly evident in the area of minor property crimes, where the phenomenon of recidivism has generated growing concern among legal professionals as well as the general public. The so-called 'minor thefts' committed repeatedly have been one of the main driving forces behind the reform, as they project an image of ineffectiveness of the criminal justice system. Organic Law 1/2026 aims to close this gap by facilitating the imposition of harsher penalties based on the accumulation of previous convictions and limiting access to prison benefits that, until now, had allowed offenders to avoid more serious consequences.
However, it is worth pausing to consider the nature of the problem being addressed. Multiple recidivism is not a homogeneous phenomenon, nor does it stem from a single cause. In many cases, behind the repeated criminal behavior are situations of marginalization, social exclusion, or substance dependence, which generate patterns of low-intensity but high-frequency delinquency. In other cases, it involves more structured criminal strategies, where recidivism is part of a model to generate income. This diversity raises the question of whether a uniform and harsher response from the criminal justice system is truly the most appropriate way to address the problem in all its complexity.
From the perspective of the principles underlying criminal law, the reform opens room for critical reflection. The principle of proportionality can be compromised when the accumulation of minor offenses leads to penalties that, in practice, approach those prescribed for more serious crimes. Recidivism undoubtedly justifies a harsher response, but the question lies in determining to what extent this severity maintains a balanced relationship with the nature of the acts committed.
Along the same lines, the reform raises questions regarding the principle of culpability. There is a risk that the focus gradually shifts from the specific act to the individual's personal history, giving more weight to their status as a recidivist than to the seriousness of the offense they are being judged for. If this trend prevails, it could bring the system closer to the principles of a 'person's criminal law', where punishment is imposed not only for what is done but also for what one is or for what one has done in the past. This is a change that the doctrine of criminal law based on due process has traditionally rejected and should be analyzed with caution.
The potential impact on the principle of minimal intervention is also not exempt from criticism. Criminal law is conceived as a last resort, reserved for the most serious attacks on legal rights. However, the reform intensifies its use in areas where other avenues of intervention, such as social policies, administrative sanctioning mechanisms, or specific reintegration programs, could be explored more thoroughly.
Another significant aspect is the impact that the reform may have on the prison system. The harsher penal response to multiple recidivism could lead to an increase in the number of prison admissions for offenses that, considered individually, would not have resulted in prison sentences. This raises not only a capacity issue for the system but also a consistency issue with the rehabilitation and social reintegration objectives of prison sentences.
In the daily practice of legal professionals, Organic Law 1/2026 introduces changes that are by no means minor. The assessment of criminal records takes on decisive importance in the shaping of the defense strategy, requiring a more thorough analysis of the client's personal circumstances. The scope of negotiated agreements is reduced in certain cases, and the importance of designing preventive strategies to avoid the accumulation of convictions increases. Furthermore, the complexity of determining the appropriate penalty is heightened, as it is necessary to weigh not only the specific offense but also the overall criminal history.
The effect that this reform may have on the public perception of justice cannot be overlooked. On the one hand, it may help to reinforce the idea that the criminal justice system responds more firmly to recidivism, which could be positive regarding public trust. On the other hand, there is a risk of creating expectations that will be difficult to meet if the root causes of the phenomenon are not addressed. The frustration arising from the persistence of certain criminal behaviors, despite harsher penalties, could again erode that trust.
In summary, Organic Law 1/2026 represents a clear tightening of the penal response to multiple recidivism. However, its actual reach cannot be measured solely in terms of the severity of the punishment, but in its capacity to form part of a broader strategy. Without support from social, preventive, and reintegration measures that address the underlying causes, there is a risk that the reform will remain an immediate response, but insufficient to provide effective and sustainable long-term solutions.
Article written by Lydia García, Jr associate at ECIJA Madrid.
