determinate versus indeterminate sentencing policies

Abstract
Indeterminate sentencing laws allow judges to give convicted felons a window of time rather a specific sentence length. With indeterminate sentencing, the judge provides a minimum and a maximum but defers authority regarding when a prisoner is released (or when probation ends) to other members of the criminal justice system such as parole board members and probation officers. Determinate sentencing is just the opposite: a procedure in which the trial judge does sentence an offender to a specific length of time. Both determinate and indeterminate sentencing have been commonly practiced in the United States, and each of these policies has strengths and drawbacks. While indeterminate sentencing can be helpful in cases where an inmate shows certain signs of rehabilitation, determinate sentencing can be deemed more fair overall.
Pros of Indeterminate Sentencing
Indeterminate sentencing has been hailed for its potential usefulness in promoting rehabilitative models in criminal justice. With an indeterminate sentence, the parole board exercises discretion based on multiple factors such as good conduct exhibited while the offender serves time in prison. An indeterminate sentence is flexible, permitting the parole board to consider factors like whether the person has been pursuing personal and career development, as well as their standing in the community, family status, and the nature of the crimes committed. Another reason why indeterminate sentencing may be used in some jurisdictions is to promote the principle of individualization: which allows each offender to be treated differently according to the professional discretion exercised by probation officers, judges, parole boards, and corrections officers (Tonry, 1999). Therefore, indeterminate sentencing works well from the perspective of criminal justice professionals. Rather than relying on a single decision made by one trial judge, the system operates as a whole with a diversity of opinion governing the outcome of any given sentence. This way, indeterminate sentencing could potentially reduce some forms of discrimination in the criminal justice system by introducing more variables into the decision-making process. Indeterminate sentencing also potentially offers states the chance to reduce prison overcrowding by releasing prisoners for good behavior or good time.
Cons of Indeterminate Sentencing
Unfortunately, indeterminate sentencing does not always work well in practice. It is presumed that with indeterminate sentencing, “those who show the most progress will be paroled closer to the minimum term than those who do not,” but in practice this may not be the case (Cornell Law School Legal Information Institute, n.d., p. 1). As O’Hear (2011) points out, delaying a prisoner’s release within the indeterminate range is frequently used as a “retributive response,” whereas parole or early release is issued in an “ad hoc” manner (p. 1247). In other words, discrimination and personal bias might cause corrections officers and parole boards to make decisions out of spite or malice rather than on objective assessments of an inmate’s behavior. Indeterminate sentencing can be so unfairly meted that Puzauskas & Morrow (2018) claim that some models of indeterminate sentencing such as the one used in Arizona “should be ruled unconstitutional,” (p. 263). Indeterminate sentencing may also permit some clever criminals to abuse the system, and with inadequate rehabilitative services, many inmates on early release can easily reoffend.
Examples of Indeterminate Sentencing
Because it is flexible, indeterminate sentencing is often used in cases involving juveniles, as with a heinous murder spree in a homeless camp in Seattle (Green, 2020). With juveniles, a judge typically prefers indeterminate sentences that allow a young person to rehabilitate. Yet some of the potential drawbacks of indeterminate sentencing are revealed in cases involving rape, as with the conviction of Austin Wiikerson (Allen, 2016). As Allen (2016) points out, only about 15 percent of inmates serving indeterminate sentences for sex crimes were released early. Even though the sentence was indeterminate, many individuals end up serving the maximum amount of time allowed, which could equate to spending life in prison.
Pros of Determinate Sentencing
Determinate sentencing offers greater clarity than indeterminate sentencing. Also referred to as structured sentencing, one of the advantages of determinate over indeterminate sentencing is that it ensures consistency. As Tonry (1999) points out, the goal of determinate sentencing policies is usually “to reduce sentencing disparities and the possibility of gender or racial bias,” (p. 7). Another benefit of determinate sentencing is that it offers victims a clearer sense of closure, and enables the enforcement of tough on crime laws that prevent criminals from abusing the system. The “good time” provisions for indeterminate sentences are waived with determinate ones; no inmate can sweet talk a probation officer, pretend to be remorseful to a parole board, or convince a corrections officer that they deserve to be released.
Cons of Determinate Sentencing
One of the primary drawbacks of determinate sentencing is that its rigidity prevents the system from pursuing its rehabilitative aims. Without any mercy, many offenders who could have been given a second chance never have the opportunity to change their lives. Those individuals, their families, and their communities may suffer as a result. Also, determinate sentencing all but guarantees a larger prison population due to the lower chance of prisoners getting released earlier than expected. Determinate sentencing also places too much power in the hands of the trial judge, and not enough responsibility is given to the people who interact with the offenders regularly such as probation and corrections officers. When conjoined with mandatory minimum laws, determinate sentencing also prevents even the trial judges from exercising discretion. Judges in states with mandatory minimum laws must issue the determinate sentence in accordance with law, and cannot consider leniency—a con for those who believe in rehabilitation but a pro for those who prefer punitive policies.
Examples of Determinate Sentencing
Determinate sentencing is often used in cases involving violent crimes. In 2020, a woman in West Virginia was given a determinate sentence of 15 years, with no possibility of parole (Baker, 2020). Age can be a deciding factor when a judge issues a determinate sentence, as in the case of the murder of veteran Andrew Harper (Gant & Hussain, 2020). In the Harper case, a determinate sentence was used due to the severity of the crime and also to the status of the victim.
Conclusion
Both determinate and indeterminate sentencing policies have been used throughout American history, and are used to varying degrees in different states. In fact, ”there is no such thing as a purely indeterminate sentencing system in which the full duration of a prison sentence is left to the discretion of a parole board. Nor can a pure determinate sentencing system be found,” (Rhine, Watts & Reitz, 2018, p. 1). Blends of the two are far more common, showcasing the nuances of the criminal justice system. Determinate sentencing offers the attraction of certainty; indeterminate sentencing the flexibility that can promote rehabilitation.




References
Allen, J. (2016). CU rape case sparks debate over Colorado’s indeterminate sentencing law. The Denver Channel. Retrieved from: https://www.thedenverchannel.com/news/local-news/colorados-indeterminate-sentencing-criticized
Baker, J. (2020, Aug 10). Davis sentenced to 15 years in 2017 Wheeling hotel killing. WTOV. Retrieved from: https://wtov9.com/news/local/davis-sentenced-to-15-years-in-2017-wheeling-hotel-killing
Cornell Law School Legal Information Institute (n.d.). Indeterminate sentence. Retrieved from: https://www.law.cornell.edu/wex/indeterminate_sentence
Gant, J. & Hussain, D. (2020, 5 Aug). Hero PC Andrew Harper’s mother slams ‘unduly lenient sentences for her son’s killers. Daily Mail. Retrieved from: https://www.dailymail.co.uk/news/article-8592283/Attorney-General-review-jail-terms-handed-three-teenagers-killed-PC-Andrew-Harper.html
Green, S.J. (2020, Aug 6). Brothers sentenced to 40 years in prison for 2016 shooting at Seattle homeless encampment. Bakersfield. Retrieved from: https://www.bakersfield.com/ap/national/brothers-sentenced-to-40-years-in-prison-for-2016-shooting-at-seattle-homeless-encampment/article_5c5d040d-0e0c-532e-9fd7-794232746f5d.html
O’Hear, M.M. (2011). Beyond rehabilitation. 48 Am. Crim. L. Rev. 1247 (2011).
Puzauskas, K. & Morrow, K. (2018). No indeterminate sentencing without parole. 44 Ohio N.U. L. Rev. 263 (2018).
Rhine, E.E., Watts, A. & Reitz, K.R. (2018). Parole boards within indeterminate and determinate sentencing structures. Robina Institute of Law and Criminal Justice. Retrieved from: https://robinainstitute.umn.edu/news-views/parole-boards-within-indeterminate-and-determinate-sentencing-structures
Tonry, M. (1999). Reconsidering indeterminate and structured sentencing. Sentencing and Corrections 2(1999): https://www.ncjrs.gov/pdffiles1/nij/175722.pdf