Determinate vs. Indeterminate Sentencing: Pros and Cons

Introduction

Indeterminate sentencing laws allow judges to give convicted felons a window of time rather than 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 sentences 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 recognized 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. In 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 opportunity 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 administered that Puzauskas and 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 offenders to abuse the system, and with inadequate rehabilitative services, many inmates released early can easily reoffend.

Pros of Determinate Sentencing

Determinate sentencing offers greater clarity than indeterminate sentencing. Also referred to as structured sentencing, one of its key advantages 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 associated with indeterminate sentences are waived with determinate ones; no inmate can persuade a probation officer, feign remorse before a parole board, or convince a corrections officer that they deserve early release.

Conclusion

Both determinate and indeterminate sentencing policies have been used throughout American history and are applied 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 offers 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, August 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, August 5). 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, August 6). Brothers sentenced to 40 years in prison for 2016 shooting at Seattle homeless encampment. Bakersfield. Retrieved from

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). Retrieved from https://www.ncjrs.gov/pdffiles1/nij/175722.pdf