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In this lesson, we will discuss indeterminate and determinate sentencing. We touched upon these concepts in a previous lesson, but you will learn more about them in depth in this lesson.
For much of the 20th century, statutes commonly allowed judges to sentence people who had been convicted of crimes to imprisonment for indeterminate periods. Under this indeterminate sentencing approach, judges sentenced the people not to a specific period, but rather to a time frame that was often quite broad (like 5 to 25 years).
EXAMPLE
For someone given an indeterminate prison sentence, release—at 5 years, 10 years, or any period short of the maximum sentence—was contingent upon getting paroled or approved for release by a parole board which determined that the person was rehabilitated.Because some people might rapidly show signs of reform, while others appear resistant to change, indeterminate sentencing’s open-ended time frame was deemed optimal for allowing individual rehabilitation, no matter how quickly or slowly.
The promise of release at the early end, or minimum sentence, was thought to function as an incentive for “good behavior” and participation in rehabilitative programming.
Yet, skepticism around indeterminate sentencing began to grow in the late 20th century, with critics highlighting both its ineffectiveness and potential for abuse. Indefinite sentences give tremendous discretion, and power, to judges, parole boards, and the prison officials who inform parole decisions.
EXAMPLE
People experiencing incarceration who were unpopular with correctional officers or wardens—due to their political beliefs, religion, or race—had little hope of a favorable parole recommendation.As crime ticked upward in the late 1960s and 1970s, many began to wonder if indeterminate sentences reformed, or merely empowered, “unfixable” individuals. In many ways, the end of indeterminate sentencing signaled the origins of mass incarceration in the United States. While many states began to abandon indeterminate sentencing in the 1970s and 1980s, the federal government legally ended parole for federal prisoners in the 1984 Comprehensive Crime Control Act (CCCA).
Under determinate sentencing, judges have little discretion in sentencing. The legislature sets specific parameters on the sentence (like 36 to 41 months), and the judge sets a fixed term of years (or months) within that time frame (like 38 months). Often, such sentencing laws allow the court to increase the term beyond the given window if it finds aggravating factors and reduce the term if it finds mitigating factors.
While determinate sentencing does not allow for parole, there may be some options for early release; namely, offenders may receive credit for time served while in pre-trial detention, or “good time” credits for good behavior while incarcerated.
Determinate sentencing grew largely out of growing disenchantment with indeterminate sentencing, and more broadly, the “rehabilitative ideal” in sentencing and incarceration.
EXAMPLE
Multiple books and research papers published in the 1970s asserted that rehabilitative programs in prison simply were not working.
Indeterminate sentences created great disparities between people convicted of similar crimes and caused the incarcerated unnecessary stress and anxiety. These critiques were combined with growing concerns over crime, which were embraced by politicians promoting a “get tough” approach. Ironically, there is little evidence that the move toward determinate sentencing significantly improved sentencing inequities, or prisoners’ attitudes toward prison and their sentence. Yet this approach—in combination with efforts at reform, such as sentencing guidelines, mandatory minimums, and sentencing enhancements—continues to drive many states and federal sentencing.
Determinate sentencing has also been criticized for its contribution to the rise of mass incarceration in the United States.
Mandatory minimums, which are associated with determinate sentencing, require judges to impose fixed penalties regardless of individual circumstances, disproportionately affecting marginalized groups and contributing to prison overcrowding.
Despite these critiques, determinate sentencing has supporters who argue that it enhances transparency and consistency in sentencing. By establishing clear, predictable penalties for specific crimes, this approach aims to improve public confidence in the fairness of the justice system. Additionally, the certainty of release dates can help correctional institutions with planning and resource allocation, as well as provide individuals experiencing incarceration with a clear understanding of their timeline for reintegration. However, the challenge remains to balance these benefits with the need for fairness, equity, and opportunities for rehabilitation.
Source: THIS TUTORIAL HAS BEEN ADAPTED FROM Open Washington’s “Introduction to the U.S. Criminal Justice System. ACCESS FOR FREE AT OPEN WA LICENSE:CREATIVE COMMONS ATTRIBUTION 4.0 INTERNATIONAL.
