Determinate and Indeterminate Sentencing Essay ⋆ Criminal Justice Essay Examples ⋆ EssayEmpire

Determinate and indeterminate sentences are similar in their goals but different in practice, and more important, they differ in their fundamental foundational ideologies. To appreciate the practical differences between determinate and indeterminate sentences, one must first understand the structure and the operations of each part of the criminal justice system. Then, one must understand the history of the thought and theory that attempted to control crime. At their basic levels both sentence structures seek to control crime and criminal conduct, but their philosophies regarding the causes of crime and the methods by which crime is controlled are practically and fundamentally different. Given that the methods of these two types of sentences are so different, and that they reflect changing criminal justice policies and goals, it is no surprise that societies regularly alternate between these two sentence types.

Determinate sentences were among the first used in Western societies. The majority of these sentences were corporal in nature, meaning that the body was harmed and pain was generated in order to diminish future criminal conduct. Punishment was meted out through a court order, and this order was followed precisely. If the offender was sentenced to 15 strokes of the lash, he or she received the lashing as ordered. This strict adherence to court orders continued into other correctional practices, including imprisonment as well as other forms of punishment, such as the stocks, the pillory, and the brank. Although these rules were being followed rigorously, they were not having the expected impact on public safety. Crime was still prevalent, and persons who had been through the justice system were less likely to become law abiding.

This period in history was followed by the Age of Reason, during which there was renewed social interest in art, science, and philosophy. There was a change in the view that society held about all of humanity, ushering in a new set of beliefs regarding human dignity and human rationality. This new perspective made it difficult to continue to treat humans who had violated the law as if they were lesser creatures. For some, the need to survive was greater than the rational fear of punishment, and consequently they could not be deterred through the use or threat of punishment. It was proposed that a better response would be to address the causes of the crime, such as poverty and deprivation. A new social response, however, would require both a change in philosophy and system orientation and a change in practice.

Development of Indeterminate Sentencing

This new treatment philosophy represented a move into unfamiliar territory. Treatment would require identifying the needs of each offender and then creating a treatment program to address that weakness. Later, the offender would be placed back in the society and supervised to determine if the intervention was successful. If it was, the offender could eventually be returned to the society without supervision. If the intervention was not successful, the offender would return to the assessment and treatment processes. This cycle could be repeated as often as necessary for each offender. This process was borrowed from the health sciences, and is aptly known as the medical model, which can be reduced into three parts: diagnose, treat, and test.

As this process began, there was a growing realization that treatment could not occur in a determinate sentencing environment. Individuals would take differing amounts of time to diagnose, and some would have complex diagnoses requiring several treatment cycles to address all of their specific issues. A set, specific sentence would not work; some would be held for too long, while others would be released before treatment was complete.

This led to the creation and implementation in the 1870s of the indeterminate sentence. Judges could sentence offenders to a range, rather than a set number, of days or years. Minimums could be set to assure that the individual was separated from the public for a predetermined amount of time, and maximums could be used to assure that the offender did not spend too much time in a treatment facility.

At this point in history, many state prison systems became departments of “corrections,” implying that treatment and correcting, not imprisonment, was the goal. Prison programs increased in number and scope, and prisons began attempting two very different goals: treatment and custody. Parole boards also changed their focus. Under determinate sentencing, parole was received when the offender had completed most of the sentence. Now, the parole board would have to review each case, determine if the offender had been diagnosed and treated properly, and decide if the offender represented a risk to the public if released.

This was a far more complex endeavor than the parole board had ever attempted, and it was more difficult than the architects of this change had anticipated. Furthermore, they had not considered that the process of reform is fraught with failures, and that failure is a normal part of the recovery process. When the treatment subject is an offender, however, and the failure represents a new offense, failures directly impact the public safety.

This process of treatment in a correctional setting had several important outcomes. First, overcrowding quickly resulted as parole boards became reluctant to release offenders who they were not entirely convinced had been reformed. Second, judges became eager to help offenders on their path to becoming law abiding and sentenced marginal persons to stays in correctional facilities rather than to lesser sentences, so that these persons could receive the necessary treatment. Finally, the prison system was forced to decide which of the two competing goals (treatment or custody) was the most important. If treatment was the most important, then it would be acceptable to minimize the number of guards so there would be sufficient funding for programs. If custody was the goal, then programs could be cut and more guards hired as the prison population swelled.

Most prisons opted for the goal of custody, which meant programs were cut and the funds diverted to staff and other prison necessities such as inmate food and clothing. This would have been a fair solution had it not been for the indeterminate sentences used to hold these offenders. This sentence structure required that the parole board not release prisoners until it could be shown that they were appropriate for release. With program and treatment options shrinking due to budget limitations, parole boards were unwilling to release offenders who had not received adequate treatment. Populations increased as offenders entered the corrections system and fewer and fewer were released. Something had to be done about this situation, and the obvious answer was to abandon treatment and return to the goal of deterrence and a determinate sentencing model so the corrections system could accurately predict populations, lengths of stay, and the number of beds necessary for the facility and system.

Return to Determinate Sentencing

The shift back in the 1970s to the previous method of sentencing, was intended as a solution, but it did little to address the problems that were created by these strictly determinate sentences the first time they were tried. Specifically, there was no incentive to improve once in prison or jail, and programs were not part of the sentencing equation because they were no longer necessary for release. Persons who were eventually released from prison were now angry at the society for lost time and the unproductive years they had spent in prison. Judges were not pleased with the sentencing power that had been removed from them, and prosecutors again had more power over sentences. Clearly, some middle ground had to be established that would utilize the best parts of determinate and indeterminate sentencing.

The Presumptive Model

At its basic level, determinate sentencing is focused on two goals: punishment for the purpose of deterrence and incapacitation of the offender to protect society. Likewise, indeterminate sentencing is focused on the goal of treatment and the creation of a functional member of society. These seemingly disparate goals were merged in the hybrid sentencing structure known as the presumptive model.

The presumptive sentencing process adds flexibility to the determinate sentencing model, so judges can sentence in a manner that is more fair and flexible than the strict determinate model. This model, however, does not give judges unlimited latitude in the sentencing process; the judge can alter the sentence within reason and encourage the offender to participate in programming to reduce custody time.

The presumptive model works in this way. Through legislation, a crime is given a presumptive sentence base, and then that crime is given a number of years that can be subtracted from or added to that base sentence. That becomes the range within which the judge can sentence. The prison system is given the authority to further reduce the time served by a certain percentage, based on the behavior and participation of the offender. For example, burglary may have a base sentence of four years and a two year modifier, making the effective sentencing range two to six years. The judge can sentence anywhere within that range, or just use the entire range and let the parole board decide when the offender is ready for release. If the prison system has a 30 percent good-time reduction, the offender may serve anywhere from 16 months (24 months—30 percent) to the maximum sentence of six years.

Bibliography:

Bales, W. D., G. G. Gaes, T. G. Blomberg, and K. N. “An Assessment of the Development and Outcomes of Determinate Sentencing in Florida.” Justice Research and Policy, v.12/1 (2010).
Engen, R. L. “Assessing Determinate and Presumptive Sentencing—Making Research Relevant.” Criminology & Public Policy, v.8/2 (2009).
Perren, S. Z. “Indeterminate Sentencing Redux: A Return to Rational Sentencing.” Federal Sentencing Reporter, v.22/3 (2010).

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