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Determinate Sentencing

Determinate sentencing refers to the use of a predetermined range of punishments for criminal offenses, generally set forth by legislative action. It is distinguished from indeterminate sentencing, which gives judges broad discretion in imposing a variety of possible punishments, including fines, probation, restitution, and incarceration.

Definition and Characteristics

The two primary differences between determinate and indeterminate sentencing involve (1) the allocation of authority over sentencing decisions, and (2) in the case of incarceration the point at which the length of a sentence is determined. In determinate sentencing, the allocation of authority over the type and degree of punishment rests with legislatures or with sentencing commissions working under the auspices of legislatures. The effect of this approach is twofold. Primarily, it fundamentally alters who makes decisions regarding punishments for criminal offenses. Compared to indeterminate sentencing, determinate approaches restrict judicial discretion on the front end of sentencing as well as correctional discretion on the back end. For example, throughout much of the 20th century it was not uncommon for a judge to be able to choose from among a wide number of punishments for a variety of offenses. When choosing incarceration, however, the length of the sentence was normally later determined by correctional authorities—in particular parole boards, which were chartered with the power to determine when an inmate was fit to reenter society. In this regard, determinate sentencing also shifts the when of decisions regarding the length of confinement, from the back end of correctional decisions regarding release to the front end of discrete sentences imposed more immediately after conviction.

When contrasted against indeterminate sentencing, determinate sentencing frequently requires judges to adhere to the use of sentencing “guidelines” that generally take into account the seriousness of the offense and the criminal history of the offender. Many guidelines utilize a type of “sentencing grid,” with one axis involving the type of offense and the other axis the criminal history or other factors, each specific possible combination requiring a specific fixed or fixed-range punishment. Not all guidelines within the 20 or so states that use them are determinate, however; some states use only “advisory” guidelines. Moreover, whereas determinate sentencing frequently relies on “presumptive” or “fixed” sentencing guidelines, it is often lumped together with other sentencing legislation, such as mandatory minimum sentences, sentencing enhancements, and three-strikes laws, all of which also limit judicial discretion. Strictly defined, however, determinate sentencing refers only to the use of predetermined sentences with fixed or fixed-range punishments. Because these other types of laws may or may not be “determinate”—for example, they may have no fixed upper range of punishment, or they may be added on to determinate-range punishments—it is not always accurate to define them as such.

History of Determinate Sentencing

Indeterminate sentencing was standard for state and federal criminal courts prior to the 1970s. This approach was rooted in pathological or medical explanations of criminal offending, which assumed that under the right conditions most criminals could be rehabilitated. Indeterminate sentencing was a reflection of this assumption, where criminal court judges in effect “turned over” offenders to correctional systems for an indeterminate period of time as needed for their successful rehabilitation. There was little challenge to this model prior to the late 1960s, largely for the reason that prison and crime rates had generally remained stable throughout most of the 20th century, with the exception of the Great Depression during the 1930s.

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