Determinate Sentencing

History

Determinate sentencing reemerged in the 1970s in the United States in response to widespread dissatisfaction with the indeterminate sentencing that had prevailed for nearly a century. The origins of this policy shift may be traced to leftist (or progressive) critiques that emerged in the 1960s, before becoming a centerpiece of the growing right-wing (or conservative) agenda for crime control. Progressives decried the large disparities in the time being served by inmates, noting the fundamental injustices involved and highlighting the opportunities that unfettered sentencing discretion provided for racism and social class bias. They also identified an immense gap between the rhetoric of rehabilitation that justified indeterminate sentencing and the daily reality of prisons.

However, the critiques of indeterminate sentencing were easily co-opted by those pushing for a crackdown on street crime. Thus, conservative critics lobbied for determinate sentences to increase punishment at the same time as they shifted discretion from judges to prosecutors. Legislatures also began to set new, and higher, sentencing penalties. [Page 230]Typically, such sentencing revisions initially targeted more serious, more violent crimes. Eventually, however, the effort would often sweep in some lesser offenses including property offenses and drug offenses. In short, the Left had set the stage but the Right put on another play.

Impact on Sentencing

Several states established determinate sentencing systems by legislative action in the 1970s. Others followed with various forms of sentencing guidelines that sought to systematize the administration of punishment. Some of the early changes improved the situation. Minnesota, for example, adopted presumptive sentencing guidelines, after which racial disparities declined and sentencing severity did not escalate. North Carolina showed similar trends. In most states, however, determinate sentencing vastly increased prison populations while de-emphasizing and degrading probation and related community sentencing options.

The federal system's approach to sentencing guidelines became especially influential, reinforcing the movement toward mandatory minimum sentences particularly in the “war on drugs.” However, the federal guidelines, and the approach to determinacy that they fostered, have not occurred without debate. Numerous federal judges have publicly criticized the harsh sentences they are forced to hand down. Federal probation officers have also complained as their discretionary expertise has been greatly diminished.

In addition to developing sentencing guidelines, the federal government and many states such as Illinois and North Carolina began to pass other legislation that upheld determinate sentencing. Some of these policies included mandatory minimum incarceration sentences; repeat offender laws; increased punitiveness toward drug offenses; truth in sentencing laws; elimination or de-emphasis of parole; reductions in good time allowances; sentencing guidelines, or more generally, structured sentencing.

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