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28 Fed. Sent'g Rep. 85 (2015-2016)
Balancing the Goals of Determinate and Indeterminate Sentencing Systems

handle is hein.journals/fedsen28 and id is 91 raw text is: Balancing the Goals of Determinate and lndeterminate Sentencing Systems The 1970s and i98os were a tumultuous time in American sentencing and corrections policy, defined in large part by the migration from an indeterminate and rehabilitation- based model to a determinate system focused on punish- ment and deterrence. Whereas judges and parole boards used to determine the amount of time one served in prison, the charging decisions of prosecutors framed by punish- ments outlined in statute by legislators have increasingly come to dominate sentencing. These developments have profoundly impacted the sentencing and corrections land- scape over the last few decades. Now, as crime continues to fall to historic lows and prison populations level or decline across many states, questions have begun to arise about whether this move to determinacy has come at the cost of fairness and equity in sentencing and corrections. Policymakers at the state and federal level have questioned whether we should seek greater flexibility in how we sentence, and some have begun to reexamine the role of parole. In this article, I will briefly discuss the movement toward greater determinacy and propose a hybrid model that can meet the important goals of certainty, transparency, and consistency while preserving flexibility. I. The Shift to Determinate Sentencing This move toward greater determinacy in sentencing did not emerge overnight. Optimism that prison could be a tool for rehabilitation, which characterized corrections in the i95os and I96OS, was replaced by the fatalist nothing works mantra of the 1970s. An influential survey of 231 studies of rehabilitation programs in prisons, released in 1975, concluded that most interventions had no impact on future reoffending.' As questions arose concerning the effectiveness of the rehabilitation-centered corrections model, others were calling for a reexamination of indeter- minate sentencing. Marvin Frankel's Criminal Sentences: Law Without Order sharply criticized unfettered judicial discretion, pointing out that it resulted in widely disparate sentences for similarly situated individuals.2 He called for greater uniformity in sentencing systems. At the same time, crime was increasing sharply in the 197os across the country,3 and there was growing concern that punishments were not tough enough. Concerns about crime, failing prisons, and unchecked judicial discretion would coalesce in a movement toward determinate sentencing. During the 198os, a number of states and the federal government established sentencing commissions that cre- ated sentencing guidelines and structured sentencing as a check on the discretion of judges. The disposition and length of sentence was determined by sentencing guide- lines and/or statutory mandatory minimums, which reduced the discretion of the sentencing judge to account for the particular circumstances of the individual or offense. This led to much greater certainty and consistency in sentencing, but at the expense of flexibility. At the same time, many states were also restricting eli- gibility for back-end release. States either abolished parole or created a cap on how much good time or earned time a person could accrue. Time served is controlled by a parole board under the indeterminate model, and it can vary widely. Under a determinate system, the sentence length bears a much closer relationship to how long someone will stay in prison. While introducing more cer- tainty and consistency to time served, it also greatly reduced opportunities and incentives for people in prison to take advantage of programming options or demonstrate per- sonal transformation. In roughly the last quarter of the twentieth century, twenty-one states either abolished parole or greatly reduced discretionary release for all or certain offenses.4 In 1980, 55 percent of releases from prison were the result of discretionary parole. That number was halved to 26 percent by 2oii.5 The movement away from discretion reached its apex in the 199os largely in response to federal fiscal incentives offered through Violent Offender Initia- tive and Truth-in-Sentencing grants to states that estab- lished or amended laws to require that individuals in prison for violent offenses serve a minimum of 85 percent of their sentences. Some states went further, requiring certain offenses to serve ioo percent of a sentence and/or extending the 85 percent requirement to all offenses.6 By 2002, twenty-eight states had established some form of truth-in-sentencing.7 These changes resulted in more people serving a greater proportion of their sentences. It also resulted in a spike in the number of people com- pleting their sentences in prison and being released to the street with no reentry preparation, no transitional support, and no supervision. By 2012, 1 in 5 persons was released from prison without supervision, an increase from 1 in 7 in 199o.s RYAN KING Senior Fellow, Justice Policy Center, Urban Institute Federal Sentencing Reporter, Vol. 28, No. 2, pp. 85-87, ISSN 1053-9867, electronic ISSN 1533-8363. © 2015 Vera Institute of Justice. All tights reserved. Please direct requests for permission to photocopy or reproduce article content through the University of California Press's Rights and Permissions website, http://www.ucpressjournals.com/reprintInfo.asp. DOI: io.I525/fsr.2015.28.2.85. FEDERAL SENTENCING REPORTER - VOL. 28, NO. 2 • DECEMBER 2015

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