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48 Am. Crim. L. Rev. 1247 (2011)
Beyond Rehabilitation: A New Theory of Indeterminate Sentencing

handle is hein.journals/amcrimlr48 and id is 1253 raw text is: ARTICLES BEYOND REHABILITATION: A NEW THEORY OF INDETERMINATE SENTENCING Michael M. O'Hear* ABSTRACT Indeterminate sentencing-that is, sentencing offenders to a range of potential imprisonment with the actual release date determined later, typically by a parole board-fell into disrepute among theorists and policymakers in the last three decades of the twentieth century. This sentencing practice had been closely associated with the rehabilitative paradigm in criminal law, which also fell from favor in the 1970s. In the years that followed, most states eliminated or pared back the various devices that had been used to implement indeterminate sentencing, especially parole release. Yet, sentencing remained indeterminate in most places to varying degrees, and now parole and similar mechanisms are staging an unex- pected comeback. However, despite its perseverance and apparent resurgence, indeterminate sentencing has lacked any clear theoretical foundation since the demise of the rehabilitative paradigm. Indeed, indeterminate sentencing is com- monly thought to conflict with retributivism, the dominant approach to punishment theory today. The lack of a clear theoretical foundation has likely contributed in recent decades to the ad hoc expansion and contraction of parole in response to short-term political and fiscal pressures. In the hope of bringing greater stability and coherence to what seems once again an increasingly important aspect of our penal practices, this Article proposes a new normative model for indeterminate sentencing that is grounded in a retributive, communicative theory of punishment. In essence, the model conceives of delayed release within the indeterminate range as a retributive response to persistent, willful violations of prison rules. The Article explores the implications of this model for prison and parole administration and for punishment theory. * Associate Dean for Research and Professor, Marquette Law School. Editor, Federal Sentencing Reporter. Author, Life Sentences Blog. B.A., J.D., Yale University. I am grateful to Antony Duff, Janie Kim, Michael Tonry, and participants at a Marquette Law School faculty workshop for comments on an earlier draft. © Michael M. O'Hear, 2011. 1247

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