Determinate Sentences

Origins

From the late nineteenth century through the early 1970s, all fifty states relied on indeterminate sentencing structures. Under such a structure, judges typically sentenced offenders to either probation or incarceration. For prison sentences, judges did not specify an exact sentence length, leaving the decision about when an offender would be released up to prison officials (thus creating an indeterminate or undetermined sentence). Consistent with the philosophy of the time, this parole decision was based on rehabilitative criteria: whether the offender was reformed and ready to reenter society.

During the 1960s and early 1970s, both conservatives and liberals began to argue for greater determinacy in sentencing. While the latter argued that the unlimited discretion of judges and parole boards led to discrimination against disadvantaged members of society, the former maintained that such discretion allowed [Page 510]judges to be excessively lenient in sentencing offenders. Both sides, though, were in general agreement that the rehabilitative ideal that had led to the development of indeterminate sentencing during the early part of the century was unworkable in practice.

During this time, a series of publications emerged in which academics, legal scholars, and laypeople criticized indeterminate sentencing for allowing biased decision making, violating due process rights, and undermining the deterrent effects of punishment. Among the most important of these were A Struggle for Justice (1971), a report written by the American Friends Service Committee (based in part on interviews with convicts), Criminal Sentences: Law Without Order (1972), written by Judge Marvin Frankel, and Doing Justice: A Choice of Punishments (1976), written by Andrew von Hirsch, a member of the Committee for the Study of Incarceration.

In the Friends' report, the authors argue that the rehabilitative ideal of considering the whole individual in making sentencing decisions encouraged judges and parole board members to consider factors “irrelevant to the purpose of delivering punishment” (1971: 147). The introduction of outside factors—whether race, gender, moral culpability, or family background—introduced the potential for discrimination. Based on this concern, the primary recommendation of the report was that “the law should deal only with a narrow aspect of the individual, that is, his criminal act or acts” (1971: 145). The authors suggested that retribution is a more humane sentencing goal than rehabilitation because it encourages decisions based only on the characteristics of the offense. The hope was to eliminate the abuses that emerge when individuals are free to make decisions based on whatever factors they deem appropriate, without having to justify their decisions.

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